The Senate Passes ENDA. What’s Next?

Seventeen years after failing by just one vote, the Employment Nondiscrimination Act passed in the Senate on Thursday, in a historic 64-32 vote. America has never been closer to prohibiting workplace discrimination against LGBT Americans. The majority of Americans support the law, the Senate passed it, and President Obama will sign the bill — if it ever reaches his desk.

It’s not outside the realm of possibility that ENDA will become law, but it will take time and effort. Here’s what needs to happen next.

The President Needs To Act

President Obama made history this week, by going public with his support for ENDA in a Huffington Post column calling on Congress to pass the bill. It was admirable, but it felt a bit too much like what President Obama did on marriage equality: taking a seemingly courageous stand on a controversial issue, only after sufficient political “cover” makes it less risky.

It was clear President Obama had more than enough political “cover” to come out in support of workplace equality for LGBT Americans. ENDA had the support of every last Senate Democrat, and enough Republicans to ensure a “filibuster-proof” 60-vote majority. Public support for workplace equality is at its highest. Nearly two-thirds of Americans (73 percent) support laws to protect LGBT Americans from workplace discrimination, as do majorities in every major religious group and political party.

In his Huffington Post column, President Obama made it clear where he stood on discrimination against LGBT workers.

It’s offensive. It’s wrong. And it needs to stop, because in the United States of America, who you are and who you love should never be a fireable offense.

If the president truly believes this, he doesn’t need to wait for Congress. As LGBT activists have long pointed out, it has always been within the president’s power to protect 26 million workers — 22 percent of the total civilian workforce — from such discrimination by signing an executive order banning federal contractors from discriminating against employees on the basis of sexual orientation or gender identity.

The president promised to sign such an order in 2008, but refused to do so in 2011and 2012, despite pressure from LGBT organizations. In March of this year, 110 members of Congress signed an open letter urging President Obama to sign an executive order prohibiting federal contractors from discriminating against LGBT workers.

In 2012, the White House defended the decision not to proceed with an executive order, saying that “the time is right” for ENDA. The president is right about that much. The time is right for ENDA. But, as Martin Luther King said, “The time is always right to do what is right.”

If the president truly believes that workplace discrimination against LGBT Americans is offensive, wrong, and needs to stop, the right time for him to do what he can to stop it for the workers it is in his power to protect is right now. It has always been the right time.

An executive order is not a comprehensive solution. It cannot protect all American workers, but it can protect nearly a quarter of the civilian workforce. An executive order is not necessarily a permanent solution. It could be rescinded by an anti-LGBT president, but it’s more likely that such a president would avoid negative publicity by quietly ordering that the order not be enforced. In the meantime, however, an executive order could protect as many workers as possible for as long as possible, as opposed to none.

If the president believes that workplace discrimination against LGBT Americans is an injustice, then he has a moral duty to prevent it to the degree than he can while in office. Asking the 22 million workers he has the power and authority to protect as president to wait for Congress compounds injustice, by asking them to continue enduring it for the foreseeable future.

Keep Up The Pressure On Boehner and GOP Leadership

Now that the Senate has done the right thing, LGBT organizations are again pressuring the White House to do the right thing by issuing an executive order to protect LGBT workers employed by federal contractors. LGBT activists see House Speaker John Boehner’s (R, OH-08) opposition to ENDA as a sign that the president needs to act on his own to extend protections to LGBT workers. The White House, however, sees another opportunity to cast Republicans as outside the mainstream.

It doesn’t have to be an either/or equation. The White House has an opportunity to do the right thing, and spotlight how out of step Republicans are with the rest of the country.

For starters, signing an executive order could be an opportunity for the president to exhibit leadership, and call on John Boehner to do the same. It could be as simple as a signing ceremony and a short speech in which the president says:

“The majority of Americans, and a majority of the U.S. Senate believe that discriminating against workers because of their sexual orientation or gender identity is wrong, and should be against the law. I have done what I can to protect workers from that discrimination. I call on House Speaker John Boehner to do what a leader should, and let the people’s representatives vote on this piece of legislation that the Senate has passed and that a majority of Americans — even a majority of Republicans — support.”

It may not be enough. John Boehner has yet to show any signs of the courage and leadership it would take for him to bring ENDA to a vote in the House. But the fissure between the Republican establishment and the tea party faction that pushed the GOP into economic brinksmanship, and dragged it into a government shutdown that damaged Republicans has widened, and may be near a breaking point.

As Dan Callahan writes, wedge issues like LGBT equality are now dividing the right.

Who could have imagined, say ten years ago, that gay rights would one day be an issue that progressives could embrace to their political advantage, dividing the conservative world?

For decades, of course, hot button social issues were used in the exact opposite way: to divide the Democratic coalition, driving a wedge between social liberals and more traditional working class voters. One of the main projects of an entire generation of DLC-type Democrats, most notably Bill Clinton, was to defuse these issues by backing away from strong liberal stances on many issues.

Now it’s exactly such strong stances that end up dividing conservatives, with LGBT rights as a prime example. Just look at what’s happening in Washington, with the employment discrimination bill that passed the Senate today.

The vote on ENDA show that social issues may widen existing splits in the GOP. ENDA picked up five Republican votes to protect it against filibuster. Not that there was any danger of that. Not one Republican rose to speak in opposition to the cloture vote, and only one Republican Senator — Dan Coats (R, IN) — spoke against the bill on the Senate floor. Ten Republicans joined Senate Democrats in finally passing the bill.

Senate Majority Leader Harry Reid (D, NV) has said that the House would probably pass ENDA if Boehner stopped blocking it. He may be right. The Senate vote shows that there’s already internal pressure from within to move the GOP away from a social issues agenda that’s seems stuck in the last century. Major Republican mega-donor Paul Singer and former RNC chairman Ken Mehlman are leading an effort by GOP donors to push the party towards a “middle-ground” on social issues, including LGBT issues. That effort is joined or paralleled by a corporate America that supports ENDA, and thinks it’s time for the tea party to be “over.”

High profile Republicans are increasing the pressure. Even former vice presidential candidate and tea party standard-bearer Rep. Paul Ryan (R, WI-01) has signaled his support for ENDA. Ryan was one of 35 Republicans who voted for ENDA when it passed the House in 2007. His office has suggested that he would do so again if the House votes.

Ari Fleischer, former White House Press Secretary under George W. Bush, wrote in a Politico op-ed that the House must pass ENDA, not only because it’s the right thing to do for the country, and for American workers, but also for a GOP that desperately needs to expand its tent if it is to survive.

Politically, it’s about time for the GOP to do the right thing while acting in a more inclusive and welcoming manner. Republicans need to expand our appeal and earn the support of millennials. The younger generation of Americans views gay rights differently than our parents’ generation, and as was noted in an assessment of the Republican Party I co-authored following the 2012 elections, issues like this are gateways into whether young people see the GOP as a party worthy of support.

Fleischer’s column echoes Reid’s comment earlier this week that Republicans must “capitulate” on ENDA if they want to win elections in a country where demographic trends and social progress threaten to render the party a relic of the past.

Keeping the pressure on John Boehner and the House GOP may not bring ENDA to the House floor in this Congress. It will increase the likelihood that ENDA will pass the House in a future Congress, if it helps drive a wedge between the GOP establishment and an extremist faction with an insatiable appetite for economic destruction, resulting in an even slightly more reasonable and responsible Republican party.

That would be good not just for ENDA and for LGBT Americans, but for the country.