Parsing Bruni

Liberal, openly gay columnist Frank Bruni makes some worthwhile observations about anti-gay prejudice and intransigence among GOP cultural conservatives, but felt the need to score added partisan points by ignoring the Democrats’ own failings. He writes:

…most states have never enacted laws protecting gay people from employment discrimination.

Federal legislation to that effect finally passed the Senate at the end of 2013, when the chamber was controlled by Democrats, but the Republican-led House never bothered to vote on the bill. And there’s no way that the current Congress will send something like it to President Obama for his signature.

OK, but you wouldn’t know from his accusation that the Democrats controlled both House and Senate from 2008-10, and the Employee Non-Discrimination Act never made it out of committee because, well, the Democratic-led House (and Senate) never bothered to vote on the bill.

Meanwhile, the first law the Democratic Congress enacted was the Lilly Ledbetter Fair Pay Act, supported by feminist groups.

There are interesting conclusions that could be drawn about the Democratic leadership’s decision not to spend political capital to pass ENDA despite having the votes, and why LGBT political lobbies didn’t push harder for it. But you can’t get there if you’re just interested in lambasting the GOP.

More. The argument that the GOP would have used Democratic votes for ENDA as a campaign issue so Democrats were forced into inaction is specious. ENDA enjoyed some GOP support, after all, and an anti-discrimination measure was supported by most Americans. Republican opposition didn’t derail Lilly Ledbetter (a bill that did far more for trial lawyers than working women, who already had statutory rights to equal pay for equal work).

Moreover, the claim that ending “don’t ask, don’t tell” was a better priority isn’t supported by the facts; the Democratic leadership was uninterested in moving on either ENDA or DADT repeal. The latter happened only at the end of 2010, when there was an eruption by LGBT bloggers and some activists not beholden to the Human Rights Campaign, as it became apparent Harry Reid was blocking a clean vote that could pass (with more GOP support than Democrats predicted). It was this upsurge of anger from the LGBT community, plus the vital intervention of Sen. Susan Collins and Sen. Joe Lieberman, that finally pushed the vote to the Senate floor.

Sometime during the previous two years ENDA could have been moved, but the strategy was (as with immigration reform) not to pass a bill, but to keep the hope of future passage alive as a campaign issue that would help mobilize targeted voting blocs in the next election cycle.

22 Comments for “Parsing Bruni”

  1. posted by Houndentenor on

    As someone who has criticized the Democrats repeatedly (and I’m far from alone) for not passing ENDA in their brief window of having majorities in Congress and the White House in 2009-2010, I agree that Bruni should have mentioned that failure. However, I’m not sure the votes were actually there, especially given that some proposed bills included trans rights in the bill as well. There was much infighting in the gay community about whether we should push ahead for gay rights and fight for trans rights later. I argued at the time for getting what we can and coming back later for the rest, but I think now that I was wrong (not that it matters since we got neither). I’m also not that enthused about ENDA as it’s so watered down as to be meaningless. LBGT people should be included in all nondiscrimination laws. Anything less than that is still a second class status. That we can’t achieve that in spite of the fact that 75% of Americans favor it (okay probably lower if trans people are included) and even more Americans think it’s already the law. In fact I’m constantly frustrated that most Americans, including liberals, think that it’s illegal to discriminate against gay people in hiring. It’s also why the right was able to make it sound like the push for gay rights was for “special rights”, a flat-out lie that Bob Dole and so many others should have apologized for by now.

    So yes, the Democrats failed to act when they might have had a chance. But what’s the reason we can’t get such a bill passed now, Stephen?

    • posted by Mike in Houston on

      Let’s also not forget that during that heady 2008-2010 time period a lot of focus was on the financial sector meltdown and ensuing Recession. All the while, the GOP’s strategy (remember Mitch “One-term President” McConnell) was to gum up the works on every little piece of legislation and political appointment.

      But then again, we Robespierre-inspired evil progressives are all about scoring political points — when we’re not committing “violence” by passing LOCAL non-discrimination laws.

      • posted by Mark Peterson on

        And Stephen also conveniently leaves out that the Democrats did pass a hate crimes law (not really that useful) and DADT repeal (very useful) during the 2 years they had total control–it’s not as if they did nothing. Maybe they should have focused on ENDA instead of DADT repeal–but as we’ve seen, DADT repeal has had very positive side effects.

        • posted by Houndentenor on

          If I had to choose between the DADT repeal and ENDA, I’d have chosen DADT. (Not that it was my choice to make, obviously.) DADT was having a real effect on real people’s lives. While there’s also anti-gay discrimination that is still legal, ENDA has so many exemptions that it’s meaningless and as most of the states that don’t have laws barring discrimination against gay people are “at-will” states with regards to employment, it wasn’t really going to offer much if any protection for people. And in fact there was concern that a weak federal law would undermine better state laws in effect in many states. (Note: In at-will states employees do not have to be given a cause for being fired. That makes it difficult to prove a cause since none needed to be given.)

          • posted by craig123 on

            Yes, let’s distort history again to serve the narrative. It was not an either/or -DADT or ENDA. The Democrats didn’t want to do EITHER. DADT repeal was only moved forward at the last minute in Dec. 2010 because activists not beholden to HRC demanded it. ENDA sat for two years (as did DADT) while the Democrats took gay money and planned to keep both alive to gin up more gay money during the congressional races. But hey, that doesn’t serve the narrative, does it. So let’s reinvent history, again.

  2. posted by Tom Scharbach on

    … most states have never enacted laws protecting gay people from employment discrimination …

    I’ll leave it to others to work through the federal ENDA facts with you, yet again, but I want to comment on the observation about state employment non-discrimination laws.

    Wiki has a map tracking the status of state non-discrimination laws, and in this case, a picture is worth a thousand words.

    If you don’t get the picture, you need a remedial course in map reading.

  3. posted by Tom Scharbach on

    I don’t want to distract from the entertaining rehash of 2010, but as a legal side note, it is now 6pm Eastern and the Supreme Court has not acted on Alabama’s motion for a stay. Unless the Court issues something later tonight (unlikely) or early tomorrow, marriage licenses will be issued in Alabama starting tomorrow morning.

    The state has issued new forms of marriage licenses replacing “husband” and “wife” with “spouse”. The Probate Judges in five counties (that I’m aware of, anyway) have announced that they will not issue marriage licenses to same-sex couples. Two announced that they will not issue any licenses at all, to straights or gays. Another dozen or so have announced that they will issues licenses but not perform courthouse weddings.

    At this point, it looks like Probate Judges in most counties will comply with the District Court ruling, so we will probably see some weddings tomorrow.

    The 11th Circuit announced earlier last week that the appeals in Alabama and Texas (and by implication, Georgia) on hold until the Supreme Court acts in the 6th Circuit cases, so unless the Supreme Court steps in, marriage equality will be the law in Alabama for the near term.

    • posted by Mike in Houston on

      Texas is in the 5th circuit.

      • posted by Tom Scharbach on

        Yup. I had Texas in my brain because I inserted a dumb joke about cowboys marrying their horses, and then thought better of it an deleted it. The 5th could issue an opinion any time, although the process of getting an opinion out of a circuit normally takes 2-4 months. It would be real interesting if the 5th ruled for equality before the end of April, when the Supreme Court will hear orals in the 6th Circuit cases.

    • posted by Mark Peterson on

      It’s odd that the Court didn’t take up the stay one way or the other, though I suppose they could tomorrow morning, since Alabama is CST. There’d be something cruel at issuing a stay only minutes before marriages commence.

      As you noted in a previous thread, presumably the delay is caused by one or both sides writing some sort of accompanying opinion. But you’d think in that instance that the Court would have issued a temporary stay until the issuance of the opinions on a permanent stay.

  4. posted by Tom Scharbach on

    A late night note on Alabama: Chief Justice Moore has now embarked on a course of open defiance of the District Court. From a NYT article:

    In a dramatic show of defiance toward the federal judiciary, Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday night ordered the state’s probate judges not to issue marriage licenses to gay couples on Monday, the day same-sex marriages were expected to begin here.

    “Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, the chief justice wrote in his order.

    The order, coming just hours before the January decisions of United States District Court Judge Callie V. S. Granade were scheduled to take effect, was almost certainly going to thrust this state into legal turmoil. It was not immediately clear how the state’s 68 probate judges, who, like Chief Justice Moore, are popularly elected, would respond to the order.

    It looks like the situation is deteriorating rapidly in the state. We’ll see what happens tomorrow, I guess.

    Of one thing I am certain: The federal courts will not tolerate open defiance of a court order.

    • posted by Tom Scharbach on

      An early morning update:

      (1) I found a copy of Chief Justice Moore’s order. Note that in the last paragraph of the order, Chief Justice Moore calls on Governor Bentley to take action against Probate Judges who comply with the District Court order. The reason that he does so is that Probate Judges are elected officials not under the direct command of the Supreme Court or the Chief Justice.

      (2) We will see, as the day goes on, how the Probate Judges in the various counties respond to the order. We will also see how Governor Bentley responds. The ACLU has announced that it will have lawyers at the courthouse in every county to handle problems that come up, so it looks like we might see emergency filings in the federal District Court in the counties where Probate Judges refuse to issue licenses, and we might see how the District Court responds, as well.

      (3) Unless the Supreme Court steps in with a stay order, marriage equality is the law in Alabama. Chief Justice Moore is agitating for nullification. The last time he did this as a judge, he was removed from office, only to be elected Chief Justice of the Alabama Supreme Court in a subsequent election. We may see that road retread.

      (4) If the situation in Alabama goes on for few days, you can bet that the media will be looking for reactions from politicians. The situation could easily turn into a political brouhaha if enough politicians (state or national) are willing to play along. Let’s hope that few do.

    • posted by Tom Scharbach on

      Second morning update: The Supreme Court denied Alabama’s petition for a stay. The order was a single sentence: “The application for stay presented to JUSTICE THOMAS and by him referred to the Court is denied. ” The order is followed by a lengthy dissent from Justices Thomas and Scalia.

      • posted by Mike in Houston on

        Interesting that Thomas referred the matter to the rest of the Court instead of issuing a stay on his own… I would say that this means that Chief Justice Roberts has taken control over all matters related to marriage equality that come before the Court.

    • posted by Tom Scharbach on

      Third morning update: Marriage licenses are being issued in many Alabama counties, and some marriages have already taken place. However, Chief Justice Moore’ order last night seems to be have an effect.

      The Birmingham News reports that at least nine counties are not issuing any marriage licenses today. The number may grow because Chief Justice Moore’s order put the Probate Judges between a rock and a hard place. As Bibb County Probate Judge Jerry Pow put it: “I don’t know whether I want to defy the Chief justice of the state Supreme Court or a federal judge.”

      The state’s most populous counties (counties in the Birmingham metro area, Mobile metro area and Montgomery metro area) all appear to be issuing licenses.

    • posted by Tom Scharbach on

      Fourth morning update: Baldwin, Bibbs, Butler, Calhoun, Chilton, Choctaw, Cleburne, Colbert, Coosa, Covington, Dekald, Jackson, Pike, Shelby, Tuskaloosa and Washington counties are not issuing licenses. Mobile county is taking applications “for recording purposes only” but not issuing licenses. ACLU lawyers are preparing federal court motions for a compliance order in Mobile county, and perhaps others. We can expect court compliance rulings to begin being issued today or tomorrow. At that point, the shit starts to hit the fan.

  5. posted by Don on

    I’m not inclined to hang any party out to dry for not enacting their entire agenda in 2 years with complete control of Congress/Presidency. I would have done it if the entire gay list of must-haves was ignored. They weren’t.

    I just can’t score that a “failure” on their part.

    Any more than I could score all the things Reagan or Bush never got done as a failure on their parts.

    I see this as a misdirection on gay, party-line republicans’ part. We have Roy Moore telling judges to defy a federal court order and everyone is pointing to “democrats didn’t enact our entire federal agenda in the 2 years they had complete power”

    I can see why they need to change the subject. But it might be better if we change the subject to more substantial material.

  6. posted by Ed on

    “Obama controlled Congress for two years” has apparently attained the status of truthiness—the quality of seeming to be true according to one’s intuition, opinion, or perception without regard to logic, factual evidence, or the like—despite being, well, untrue:

  7. posted by JohnInCA on

    I like when people forget that Obama had to fight damn hard to get things passed his first two years. That “complete control” was very tenuous so if *anyone* balked things got dicey, fast. Hell, Healthcare reform, which was *way* higher on the totem pole then anything to do with gays, barely passed and only in a crippled and mangled way.

    Really makes me wonder what version of history these “total control of congress” people were living through.

  8. posted by Tom Jefferson III on

    1. Progress was actually made with a Democrat in the White House and a slim Democratic Congressional majority.

    2. ENDA (which at best only deals with employment law) faced (a) a dispute among its supporters about whether or not it should include sexual orientation and gender identity (I personally took a nuanced position, but things quickly turned into tossing transgender people under a bus or worshiping the cult of Ayn Rand) A sexual orientation-version of ENDA came very close to passing in 1996. What happened? Well, on thing was a Republican from Colorado — who loved to paint himself as a moderate — switched his (initial) support for the bill and then tried to claim that it was only because of a procedural matter.

    3. Again, America is not like say, the British parliament. If the U.K. Conservative Party took a formal position for gay rights, EVERY single elected MP would be expected to vote in accordance with the party. Period (absent of a rare conscious vote exemption that the party leadership does not have to grant). Having a majority of Democrats in the US House and Senate does not actually mean that they will all vote for a gay rights bill (no matter what the party platform or leadership may say about it).

  9. posted by Tom Scharbach on

    Sometime during the previous two years ENDA could have been moved, but the strategy was (as with immigration reform) not to pass a bill, but to keep the hope of future passage alive as a campaign issue that would help mobilize targeted voting blocs in the next election cycle.

    You keep harping on this point year after year, Stephen, but you don’t offer any evidence, not so much as a smoking gun. If the evidence exists (as is the case with the Bush/Rove strategy) then come forward with it. If you don’t have the evidence, then you might want to consider modifying your statements to reflect the fact that the statements are your unsupported opinion.

  10. posted by Tom Jefferson III on

    The fact that national polling data suggests broad based support for ENDA (in its limitation form) does not actually make the issue ” specious”. (although I am certainly quite glad to see how someone has learned a new word….)

    When we are dealing with Congressional districts that tend to “lean right”, national polling data can quickly be superseded by more localized district data. This is one of the (many) reasons why party discipline in the United States has always been much, much weaker then in say, the U.K.

    The big challenge with ENDA getting passed is (a) the education and comfort level dealing with sexual orientation based discrimination is higher then dealing with gender identity based discrimination, (b) the opposition from the political right under the “its a sin” or “its big government” banner, (c) the number of elected officials who feel supporting ENDA will be a political liability.

    I am more then willing to talk about how to address all of these issues, so that ENDA can pass (heck, maybe something a bit more then just an employment bill), but I would hate to take away from the important task of bashing Obama.

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