Civil Rights and Discrimination

ENDA Is Passé

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Openly gay Rep. Jared Polis (D-Colo.) hopes to get half the members of the House to sign a discharge petition that would force a vote on a revised Employee Non-Discrimination Act (ENDA). The reformulated ENDA would limit the current bill’s exemption for religious organizations, including religiously affiliated private schools and charities. The narrowed exemption might apply only to ministerial positions, which would be a deal-killer for many/most of ENDA’s current House GOP co-sponsors, and I suspect also some Democrats. And although ENDA already was passed in the Senate, with revised language it would stall there as well during reconciliation.

The dilemma: Without a sharply curtailed exemption, many LGBT activists have announced they will no longer support ENDA.

In short, ENDA still is likely to be on a road going nowhere, although the discharge petition endeavor will try to mobilize LGBT voters in the midterms (it’s also supported by openly gay GOP congressional candidates Carl DeMaio and Richard Tisei).

Despite these efforts, ENDA increasingly seems like inside beltway baseball for politicos and activists; it’s no longer generating any real interest among gay voters, whose passion is directed toward marriage equality.

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The ENDA Brouhahah, Again

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Major LGBT rights and progressives groups, including Lambda Legal and the ACLU, have withdrawn their support for the Employee Non-Discrimination Act (ENDA) that seeks to ban workplace discrimination against LGBT workers in the private sector, because ENDA includes a broad exemption for religious organizations, including religiously affiliated hospitals and charities, for instance. The act passed the Senate last year, when it was supported by these same groups, despite the religious exemption.

But after the Supreme Court’s Hobby Lobby ruling, finding that closely held businesses run by their owners on religious principles (but not necessarily religiously affiliated) need not be forced to purchase certain contraceptives for their workers, the left has found an issue.

ENDA, of course, appears to have no chance of being brought up in the GOP House, and the House is going to stay GOP controlled for the foreseeable future. So much of this is about ensuring that the president’s upcoming executive order banning anti-LGBT discrimination among federal contractors doesn’t provide a religious exemption, except perhaps to houses of worship, and some would probably not want to see even that.

I don’t think business owners should be forced by the state to violate their religious consciences, and I am even more wary of the state telling religious organizations who they can hire, fire, or promote to leadership. But the issue becomes clouded when these organizations accept taxpayer money to serve the state.

Nevertheless religious organizations, or even private companies that can demonstrate they are run on religious principles, represent a tiny fraction of the workplace. And much of this controversy feels manufactured with the aim of inducing a certain amount of politically useful hysteria on the left.

More. Some politicos tell me that, at least before this latest contretemps, ENDA had enough GOP support in the House to pass if the leadership would allow it to be brought up for a vote. But that’s conditioned on a broad exemption for religiously affiliated organizations. So apart from pressuring Obama not to provide a meaningful religious exemption in his executive order, another result of the LGBT and progressive groups withdrawing their support for ENDA, as currently conceived, is to ensure that it has no chance of passing the House even if brought forward, thus keeping the issue of a “pure” ENDA alive for another round of Democratic electioneering and fundraising.

ENDA, it should be noted, languished in committee when Democrats controlled both houses of Congress during the first two years of the Obama presidency (2009-10), even as it appeared Republicans were likely to retake the House in the November 2010 midterm election, during which the party appealed to gay voters for funds and support (wait for it) in order to pass ENDA in the next Congress. Yes, kiddies, it’s all about politics and mobilizing the base, and always has been.

Furthermore. As the Washington Post article linked to above reports, the Human Rights Campaign is the outlier among LGBT groups, maintaining its support for a passable ENDA with a religious exemption clause. HRC very much wants, eventually, to claim a victory for ENDA, its top legislative agenda item. Other LGBT groups with rival fundraising operations, however, don’t see their interests aligned with passage anytime soon.

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The Nail in ENDA’s Coffin

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Progressive groups say they’d rather have no Employee Non-Discrimination Act (ENDA) then one that doesn’t force those with faith-based objections to provide creative services for same-sex weddings.

In the past, I’ve been neutral on ENDA—aware of its potential for misuse, along with other anti-discrimination statutes, but mindful of its positive symbolic value. With the advance of marriage equality, the need for such a symbolic statement of inclusion by the federal government no longer seems necessary. And it is now crystal clear that ENDA will be abused, as state anti-discrimination statutes have been, to limit individual liberty and punish those who don’t bend knee to the progressive authority. Good riddance, ENDA.

More. I recently addressed (again) the appropriateness of religious exemptions and so won’t repeat myself, but see No Faith-Based Exemptions from the Dictates of the State?

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ENDA the Line

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President Obama used his State of the Union address to announce he will make government more expensive for taxpayers by issuing an executive order raising the minimum wage to $10.10 for federal contract workers. What he doesn’t announce, again, is any intention to fulfill his campaign promise of issuing an executive order barring federal government contractors from discriminating against gay people. That wouldn’t serve his political interest of using the Republican House’s failure to pass the more sweeping Employee Non-Discrimination Act (ENDA) as a campaign issue to mobilize gay votes and dollars in November’s congressional elections, an issue that would be substantially mooted if he forbid anti-gay discrimination among government contractors, who represent a large sector of private industry.

Of course, Obama couldn’t get away with failing to deliver what he could deliver by a stroke of the pen if the major Washington-based LGBT lobbies were not supplicant lapdogs whose overriding mission is to Serve the Party.

More. And no, I don’t consider the fact that HRC put out a press release (!) mildly expressing disappointment over President Obama’s “missed opportunity” to be anything more than perfunctory.

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ENDA

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Walter Olson offers a thoughtful critique of the Employee Non-Discrimination Act, while the conservative Washington Times gives in to anti-ENDA hysteria. To demonstrate:

Walter Olson: A classical liberal stance can reasonably ask the government itself to behave neutrally among different citizens with their differing values and aspirations, but should not attempt to enforce neutrality on private citizens themselves. … We [risk introducing] a new presumption—familiar from the prevailing labor law in parts of Europe—that no employer should be free to terminate or take other “adverse action” against an employee without being prepared to show good cause to a judge. That is exactly the goal of some thinkers on the Left, but it should appall believers in a free economy.

Washington Times editors: The act would…grant privilege to homosexual men, lesbians and others who can’t figure out who and what they are. … Employers, religious and secular, should have the right to insist that men dress like men in the workplace; he can dress in milady’s frilliest frock where such frocks on men are better appreciated.

It’s probable the Senate will pass ENDA this session and the House most certainly will not. That creates a campaign issue for the Democrats to run on, which is why they only move on ENDA when they’re not in control of both chambers (it was kept bottled up in committee during the first two years of the Obama administration, just as it was when Bill Clinton was president and Democrats controlled Congress).

I added this to an earlier post, but it was buried so I’ll repeat here. Long-time readers know that I have been, and remain, equivocal about ENDA. Yes, other minorities subject to various degrees of employment discrimination are protected by federal statute, and thus so should gays, is an understandable argument. Also, it would send a strong message that the federal government views anti-gay discrimination in the workplace as unacceptable. I get that. On the other hand, we’ve seen over the past decades a huge rise in frivolous lawsuits charging minority or gender-based discrimination with little or no reasonable evidence, which are nonetheless typically settled by employers because of the cost of litigation and “you never know what a jury might rule.”

In the case of those with disabilities (who, like gay and transgender employees would be under ENDA, are not subject to mandatory hiring and promotion preferences based on statistical analysis), the risk of opening the door to an employee’s discrimination suit is correlated with a drop in hiring (because those hires, if subsequently fired or not promoted, can sue for discrimination), the opposite of the anticipated result. Also, there is scant evidence that discrimination against gays in the workplace is widespread.

I’d welcome an executive order (or law) saying government contractors must not discriminate on the basis of sexual orientation or gender identity, which Obama refuses to issue (despite having promised to do so during the election). And I wouldn’t lobby against ENDA; but I don’t see it as the priority activists have made it, either.

Update 1. On Nov. 4, a larger than expected number of Republican senators (7) joined 54 Democrats in voting to formally begin considering ENDA. “The 61-30 margin virtually guarantees its passage this week [in the Senate],” reports the Washington Post.

Symbolism is important, so better than expected is, well, better than expected. I only wish ENDA was a better vehicle for expressing support for gay legal equality. But I share many of Stephen Richer’s qualms.

Update 2. Paul Ryan Signals Conditional Support for ENDA, with an emphasis on conditional. Actually, it might pass in the House if brought up and if limited to sexual orientation, but gender identity that extends to non-op and pre-op transsexuals’ physical-gender nonconforming dress and restroom use is going to be a no go, I believe.

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“This law is no different. . . “

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The U.S. Olympic Committee is doing its best to tread a very fine line for Sochi:

The athletes are always going into countries with laws different than his or her own country. They’re going to agree with those laws in some ways, they’re going to disagree with those laws in other ways.  It’s our strong desire that our athletes comply with the laws of every nation that we visit. This law is no different.

It’s true that law, in the abstract, means roughly the same thing no matter where you are: It is the rules citizens and even visitors are expected to obey.  And because Olympic athletes by definition must visit many countries, it’s hardly unreasonable to expect that they should not intentionally break the laws of any country in which they compete.

But is the Russian law truly no different from any other law?  Certainly athletes at the Sochi games should not murder people or steal or commit rape.  Even laws that have less universal agreement should generally be obeyed, both out of respect and prudence.

The Russian law, though, prohibits propaganda.  In itself, this is an indication of illegitimacy, at least by modern standards.  The law also prohibits only propaganda of a very specific kind.  Here is the closest I have been able to come to an English translation of Article 6.21 of the Code of the Russian Federation on Administrative Offenses:

Propaganda is the act of distributing information among minors that 1) is aimed at the creating nontraditional sexual attitudes, 2) makes nontraditional sexual relations attractive, 3) equates the social value of traditional and nontraditional sexual relations, or 4) creates an interest in nontraditional sexual relations.

One of the cornerstones of law is clarity.  People must know, within reason, what the law requires or prohibits.  This law is a model of vagueness.  What are “nontraditional sexual relations?”  For that matter, what are “traditional” ones?  Can Russian TV run “Sex and the City?”  Discuss.

Still, we clearly know what the Duma and Vladimir Putin intended — Shut up about the gay rights.  More specifically, shut up in front of the children.

This a a modern spin to remove the stigma against laws about propaganda.  Everyone wants children protected.

But children are everywhere.  More specifically, any form of journalism in the modern world, from NBC to the internet, may be seen by minors, which means the practical effect of this law is to prohibit any public discussion of gay rights.  The invocation of children is superfluous to the goal of banning pro-gay speech.

And that equates exactly with prohibiting any chance of achieving gay rights.

Absent an explicit equal protection guarantee, minorities have little but speech with which to make their case.  By definition, minorities must persuade a large number of the majority if they are to have any peaceful political participation at all.  Majorities seldom change their minds just because.

The Russian propaganda law is ideally designed to prohibit not just Russian discussion of gay equality, but to make sure it doesn’t happen when Russia is on the world stage.  At its best, this law is little more than Don’t Ask Don’t Tell.  At its worst, it is the first step toward a set of Nuremberg Laws for Russia’s lesbians and gay men.

This makes it not just important to mock the law, it makes it imperative.  However, that can be done respectfully, even joyously.  Rainbow fingernails? Perfect. Holding hands?  Sweet.  These and hundreds more small gestures skirt the law without violating it.  Maybe the rainbow fingernails are a fashion statement.  And holding hands is just holding hands, right? Heck, in post WWII Russia, this was a postage stamp!

The discussion of gay equality in Russia has a long way to go, but reliance on state control of information will not help it be seen as a modern nation.  It will be uncomfortable for Russia’s population to experience, within its borders, the increasing support among heterosexuals for gay equality.  But there is no wishing — or legislating — away that conversation.

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Back to Basics

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Same-sex marriage came and went in the US Supreme Court, and the the most reactionary Republican dominated state legislatures responded by — passing new laws restriction abortion.  While the high court was deliberating a case challenging the power of Congress to prohibit or punish same-sex marriage under state law, Texas, Alabama, Mississippi, South Dakota and Indiana were all exploring creative ways to provoke the high court to revisit Roe v Wade.

The lack of an outcry about U.S. Windsor is partly due to the fact that the opinion left those states’ anti-marriage laws intact.  But the renewed focus on abortion and Roe, at a time when the highest court in the land was setting down a marker about marriage equality suggests something else is at work.

That something else can be seen in the non-reaction in California to the opinion overturning the notorious Prop. 8. In 2000, California voters passed Prop. 22, an initiative statute prohibiting same-sex marriage, with 61% of the vote.  The state Supreme Court overturned Prop. 22 as a violation of the state constitution in 2008, which prompted Prop. 8, an initiative that amended the state constitution itself to prohibit same-sex marriage.  Prop. 8 got a little over 52% of the vote, but a win is a win.

So California’s voters must be furious about the decision in Hollingsworth v Perry, right?

If so, it’s hard to see.  Less than two days after the ruling, the Ninth Circuit Court of Appeals took the final step to permit same-sex marriages again in California, and while a very few of the usual suspects showed their faces to television cameras at the subsequent marriages throughout the state, there are no signs of outrage among the voters whose will was thwarted.

Opposition to same-sex marriage is different from opposition to abortion.  There is a real and substantial moral question with abortion: At what point does human life begin?  In the 40 years since Roe, that moral question has remained alive and vibrant, and the constitutional argument about abortion has seldom flagged.  Moral feelings about abortion start strong and tend to stay strong.

Not so for same-sex marriage, where moral feelings may have started strong, but have weakened substantially over time.  The moral consensus around same-sex marriage was collapsing even before the Supreme Court weighed in.  With each new iteration of the issue, voters see less reason for opposition, more reason in the arguments made for equality.  The moral argument against same-sex marriage is no more than the moral argument against non-procreative sexual activity; once heterosexuals can see their own procreative sexual desires in the broader context of a world in which procreation is controllable, the idea of sex for other reasons — pleasure, relational intimacy, emotional bonding or just for the hell of it — moves homosexuals from their historical outsider status to a proper role as fellow members of the human family.  Procreation is a good thing, but it is not all that sex is for.

The shift back to abortion for the old guard of the GOP is some evidence that this cultural shift on same-sex marriage is taking hold.  It is harder and harder to argue against the images of joyous couples getting married, and now joyous heterosexual friends and family are joining in the celebrations.  Connection and inclusion are moral instincts, family imperatives, that it takes an effort to deny.

There is still a strong sense that abortion is worth the effort.  For a small minority, the fight against same-sex marriage will continue to be a priority.  But the continent on which they once stood is becoming more of an island every day.

 

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The ENDA Tease

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The long-sought Employee Non-Discrimination Act was re-introduced in Congress this week. Senate passage appears likely, with a smattering of Republican support. However, it remains unlikely ENDA will make much progress in the Republican-controlled House.

When Democrats controlled both chambers during Obama’s first two years in office, ENDA was kept bottled-up in committee. Democrats said they feared Republicans would demagogue the issue, and some would have, but with a large majority of Americans favoring passage of workplace nondiscrimination legislation protecting gay Americans, it’s more likely this “wedge” issue would have worked in the Democrats’ favor. Indeed, not passing ENDA (in line with its attempt to scuttle repeal of “don’t ask, don’t tell” and making no serious attempt to pass immigration reform), allowed Obama and congressional Democrats to run on the issue and fire-up their base.

And then there’s this, as Metro Weekly reports:

the White House continues to delay on a long-called-for executive order that would prohibit federal contractors from LGBT workplace discrimination—a move that would protect 20 percent of the civilian workforce.

It was a little more than a year ago [White House senior adviser Valerie Jarrett] informed advocates during a meeting at the White House that Obama would not sign such an order at that time, despite promising to do so as a candidate for president. Pressure has increased on the White House to act since then, with … [advocates] calling for Obama to sign the executive order and arguing such a move would build momentum for ENDA. However, the president hasn’t acted, instead arguing … that the administration supports passage of an inclusive ENDA that protects everyone….

In April 2012 after the White House announced no action would be taken on an executive order, advocates…were told the White House would conduct a study on LGBT workplace discrimination. One year later, with ENDA on the verge of reintroduction, no study has been released. When asked for an update on the reported study, White House spokesman Shin Inouye stated, “We continue to study the issue.”

ENDA isn’t going anywhere in John Boehner’s House. Democrats would like to capture the House. Obama and his advisers believe not signing an executive order will help them to do that.

More. As long-time readers know, I’m of two minds about ENDA. It’s another federal regulatory scheme, and there are relatively few documented cases of overt workplace discrimination by private-sector employers. Small employers would face added liability risk when they hire and then fire (or fail to promote) openly gay employees, who could bring baseless yet costly suits which would most often be settled with a payoff, which is how employers most often resolve gender- and race-based discrimination suits. Avoiding this risk is one reason why the Americans with Disabilities Act (ADA) has actually led to a decrease in the hiring of people with disabilities.

And there is the libertarian argument that business owners should be able to hire those who they want to hire.

On the other side, passing ENDA sends a strong message that gay people deserve similar workplace protections as other minorities (although ENDA , quite rightly, does not include “disparate impact” enforcement provisions, which in civil rights and equal-employment statutes have led to de facto gender- and race-based preferences).

Federal contractors agree to accept numerous additional restrictions in order to qualify for government work, so I’m less two-minded about issuing an executive nondiscrimination order that applies to them.

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