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ENDA Support Falters; GOP Backers Dig In

by Justin Snow
Thursday Jul 17, 2014
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House of Representatives
House of Representatives  (Source:Bryant Avondoglio/Speaker's Office)

After legislation that would prohibit most cases of LGBT workplace discrimination witnessed an exodus of support from several major LGBT-rights groups earlier this week, Republican supporters of the Employment Non-Discrimination Act are vowing to push forward.

Multiple conservative supporters of ENDA indicated to Metro Weekly their intent to continue seeking cosponsors in the Republican-controlled House of Representatives, signaling a growing divide within the LGBT advocacy community over the future of LGBT nondiscrimination statutes.

On Tuesday, seven organizations who have long been key backers of ENDA for decades announced they were withdrawing their support for the bill due to the legislation's religious exemption. The American Civil Liberties Union (ACLU), Gay & Lesbian Advocates & Defenders (GLAD), Lambda Legal, National Center for Lesbian Rights (NCLR) and Transgender Law Center announced their decision in a joint statement released hours after the National Gay and Lesbian Task Force declared they too were pulling support for ENDA as currently written. Pride at Work also withdrew its support.

According to the organizations, ENDA's religious exemption is a "discriminatory provision" that is "unprecedented in federal laws prohibiting employment discrimination."

The announcements come after the U.S. Supreme Court's decision last week in the Hobby Lobby case, which found some religious employers can refuse to pay for insurance coverage of contraception under the federal Religious Freedom Restoration Act. Although that case has thrust the issue of religious freedom back into the limelight, with LGBT-rights groups citing the ruling as influencing their decision to pull their support for ENDA, another factor has contributed as well. With President Barack Obama expected to sign one executive order prohibiting federal contractors from discrimination on the basis of sexual orientation and gender identity, some faith leaders have called on Obama to include a religious exemption similar to ENDA's in that executive action. Such a request has proven unacceptable to LGBT-rights advocates, and by declaring that ENDA should not move forward in Congress until "the discriminatory exemption is removed so that anti-LGBT discrimination is treated the same as race, sex, national origin, age, disability, or genetic information under federal workplace laws," they are sending a stark statement to the White House. (White House press secretary Josh Earnest said Friday that the administration's support for ENDA has not changed.)

But while those groups pivot from supporting to opposing ENDA, Republican supporters of what was hailed as a landmark LGBT-rights bill just last fall are digging in.

"Nothing has changed at Log Cabin Republicans regarding our calculus," Gregory T. Angelo, executive director of Log Cabin Republicans, told Metro Weekly. "We continue to support ENDA as it is now, as we always have."

According to Angelo, groups pulling their support for ENDA have shown an ignorance to the political reality the bill faces, where Republican support is critical to ENDA's passage and the religious exemption is critical to achieving Republican support.

"A lot of these organizations on the left withdrawing their support are ignorant of the political reality in Washington that led to bi-partisan support of ENDA in the Senate in the first place," Angelo said. "It's puzzling, really - it's like we scored the touchdown with the Senate passage of ENDA, and right as we're about to kick the field goal in the House the left decides to move the goal posts. Histrionics about the Hobby Lobby decision didn't help, and a misinformation campaign about the religious exemption in ENDA hasn't either."

Although ENDA was not expected to be taken up by the House this session, with House Speaker John Boehner opposed to the bill, removing the religious exemption could have dire consequences for the fate of the bill should it be reintroduced in a future congress. Indeed, the religious exemption as written has a track record of success, particularly with Republican members of Congress. Last November ENDA passed the Senate with the support of 10 Republicans - the most Senate Republicans to ever vote for a piece of LGBT-rights legislation - in part due to the religious exemption. When the religious exemption was adopted with a 402-25 vote in 2007 as an amendment in the House proposed by Rep. George Miller (D-Calif.), it received the backing of not only Democrats like Nancy Pelosi, Barney Frank and Tammy Baldwin, but Republicans like John Boehner, Eric Cantor and Paul Ryan. Sen. Orrin Hatch (R-Utah) specifically cited the religious exemption when he became one of three Republicans on the Senate Health, Education, Labor & Pensions Committee to vote in favor of ENDA last July. ENDA currently has eight Republican cosponsors in the House.

"Advocates for LGBT freedom were able to break a 10-year logjam in the Senate because we executed an authentically bipartisan strategy that attracted strong support from legislators in both parties who believe Americans should be judged solely on their merit and hard work and not on who they are," said Jeff Cook-McCormac, senior advisor to American Unity Fund, the nonprofit linked to billionaire GOP donor Paul Singer's American Unity PAC.

"The 64 to 32 vote was an historic step forward, and we now have a better chance of passing ENDA than we ever have before," Cook-McCormac continued. "We all want to see legislation that will protect as many Americans as possible, but it is unrealistic and illogical to expect Republicans in the House to pass ENDA in a more 'liberal' form than Democrats in the Senate."

That's a sentiment that has been echoed by some of ENDA's Democratic supporters on Capitol Hill as well, who argue that while ENDA isn't perfect, it has been able to achieve historic bipartisan support. Speaking to reporters Thursday, House Minority Leader Nancy Pelosi said ENDA supporters will have to look at their options, but ultimately votes do have to be counted.

"It is all about choices here. When you are an advocate, 100 percent is your goal. When you have to make a vote, the bill that we have is one that passed the Senate in a bipartisan way. I think that has a big value," Pelosi said. "What do we have on the Republican side in the House if we change the bill and go to another place? And that's really where it lies, because we have the Democratic votes.

"Our Democratic votes are solid with or without the clause," she continued. "So I just want to get Republican votes right now. Or else, win the election and then have a bill. But you still have to deal with 60 votes in the Senate and that's hard for people to understand."

It remains unclear if narrowing ENDA's religious exemption could threaten the support of those Republican senators who voted for the bill. ENDA's two Republican champions in the Senate - Mark Kirk of Illinois and Susan Collins of Maine - have been largely quiet over this week's developments. While both senators' offices reaffirmed their support for the version of ENDA that passed the Senate, they declined to address questions regarding the religious exemption.

Sen. Tammy Baldwin, the chamber's first out member who previously pushed for ENDA as a member of the House of Representatives, reiterated statements that legislating is about compromise.

"After years of hard work in both the House and Senate, I am proud that ENDA won strong bipartisan support and passed the Senate. I've been fighting this fight long enough to know that no bill is perfect, but we found common ground to prohibit workplace discrimination against LGBT Americans simply because of who they are or who they love," the Wisconsin Democrat said in a statement. "Every American deserves the freedom to work free of discrimination and I will continue to call on the House to put progress ahead of politics and give the Senate passed ENDA bill an up or down vote because this legislation provides workplace protections that millions of LGBT people deserve and need today."

But for those groups that have pulled their support, the compromise reached over the religious exemption is no longer acceptable. Rea Carey, executive director of the National Gay and Lesbian Task Force, said that while her organization lobbied for a narrow religious exemption during the drafting of the Senate bill, they "reluctantly agreed to a compromise to get the Republican votes to pass the bill."

"However, that was last year and the landscape has significantly shifted with regard to impact of broad religious exemptions being used to discriminate," Carey said, citing the enactment of a religious freedom law in Mississippi and the intensified environment caused by the Hobby Lobby decision. "The reality is that while politics is about compromise, some compromises are too great."

While some organizations have withdrawn their support for ENDA, others continue to work on behalf of the bill, including the Human Rights Campaign, Freedom to Work and the National Center for Transgender Equality (HRC has also announced support for a comprehensive LGBT civil rights bill that would include protections for housing, public accommodations, credit, education and employment). Americans for Workplace Opportunity, an umbrella coalition of several LGBT-rights groups, is also pushing forward, including with GOP lobbying efforts by former Republican Sen. Norm Coleman and former Republican Reps. Tom Reynolds and Deborah Pryce.

And although ENDA's religious exemption has divided the LGBT community, there could be a silver lining for those still focused on attracting new cosponsors to the bill.

"ENDA isn't perfect, but no one ever said it was the end-game, and in politics you can't let the perfect be the enemy of the good," Angelo said. "From a lobbying standpoint, I think this could potentially help ENDA in the House, because it underscores what has long been a lobbying strategy we have employed: this bill is going to pass sooner or later, and Republicans who care about religious liberty and equality would do well to prioritize its passage in this congress."

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