The Senate on Monday advanced legislation banning workplace discrimination based on sexual orientation and gender identity — marking a victory for gay rights supporters despite the bill's dim House prospects.
The measure, known as the Employment Non-Discrimination Act, cleared a key test vote on Monday evening, 61 to 30.
Continue Reading The bill appeared to clinch 60 Senate votes — the threshold needed to avoid a filibuster — after Dean Heller (R-Nev.) said he would endorse the bill earlier Monday.
A "patchwork of state laws excludes tens of millions of Americans from basic protection against discrimination. It is simply not good enough," Senate Majority Leader Harry Reid (D-Nev.) said Monday. "As long as hardworking, qualified Americans can be denied job opportunities, fired or harassed because of their sexual orientation or gender identity, all workers are at risk."
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Still, the procedural vote to move to floor debate was not without some drama. The vote was held open for well over half an hour as Republican Sens. Kelly Ayotte of New Hampshire, Pat Toomey of Pennsylvania and Rob Portman of Ohio — all undecided before the vote — huddled in the cloakroom off the Senate floor as they were lobbied by the bill's backers.
Collins, one Republican co-sponsor for the bill, asked Sen. Chuck Schumer (D-N.Y.) to come into the GOP cloakroom during the vote, followed shortly thereafter by Reid and Sen. Jeff Merkley (D-Ore.), the legislation's chief sponsor. While in the cloakroom, senators agreed to votes on two amendments to satisfy Ayotte, Toomey and Portman, according to a source familiar with the situation: a Portman-Ayotte amendment that would ban state and local governments from retaliating against religious groups that take action only permissible because of the religious exemption clause. Toomey's amendment, which would broaden the number of groups covered under the exemption, will also get a vote, according to the source.
Portman and Ayotte's amendment will need 50 votes to pass, while Toomey's will be at a 60-vote threshold. Merkley told reporters that he will support Ayotte and Portman's proposal, though he was noncommittal on Toomey's.
Ultimately, seven Senate Republicans voted in favor of advancing the legislation: Ayotte, Portman, Toomey, Heller, Collins, Orrin Hatch of Utah and Mark Kirk of Illinois.
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Ayotte said she got an agreement that she and Portman would get a vote to "strengthen" the exemption for religious groups. Toomey, in a statement following the vote, also said the bill's provisions pertaining to religious groups "should be improved."
The Senate last considered a version of ENDA in 1996. If the bill ultimately passes the Senate, it would mark the most significant victory for gay rights advocates on Capitol Hill since Congress voted in 2010 to repeal the "don't ask, don't tell" ban on gays and lesbians serving openly in the military.
Explaining his decision to support the bill on Monday, Heller said it's "the right thing to do."
"This legislation raises the federal standards to match what we have come to expect in Nevada, which is that discrimination must not be tolerated under any circumstance," Heller said.
Backers of the bill spent the past week counting votes to ensure they could win the support of at least 60 senators. Before Heller's announcement, all 55 Senate Democrats said they would back the bill. The legislation has two Republican co-sponsors — Sens. Susan Collins of Maine and Mark Kirk of Illinois — and GOP Sens. Lisa Murkowski of Alaska and Orrin Hatch of Utah supported the bill when it passed the Senate Health, Education, Labor and Pensions Committee in July.
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"I've risen to speak because I believe so passionately in enacting the ENDA statute," Kirk said in his first floor speech since he suffered a stroke in January 2012. "I think it's particularly appropriate for an Illinois Republican to speak on behalf of this measure — in the true tradition of Everett McKinley Dirksen and Abraham Lincoln, men who gave us the 1964 Civil Rights Act and the 13th Amendment to the Constitution."
Despite its likely passage in the Senate in the coming days, senior Republican aides in the House said the bill is unlikely to come up in their chamber — adding that they believe existing law provides these protections.
Speaker John Boehner (R-Ohio) indicated through a spokesman Monday that he would oppose the bill.
"The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small-business jobs," said Boehner spokesman Michael Steel.
A spokesman for House Minority Leader Nancy Pelosi (D-Calif.) called those comments "deeply disappointing" and said "all options will be on the table" for Democrats to push through the legislation in the Republican-controlled chamber.
A House version of ENDA has 193 co-sponsors, including Republicans Charlie Dent of Pennsylvania, Chris Gibson and Richard Hanna of New York, Ileana Ros-Lehtinen of Florida and Jon Runyan of New Jersey.
ENDA would expand protections against discrimination that already exist on basis of race, religion, gender, national origin, age and disability to LGBT individuals. President Barack Obama penned a blog item for The Huffington Post urging Congress to pass ENDA, saying it "ought to be the law of the land."
"Right now, in 2013, in many states a person can be fired simply for being lesbian, gay, bisexual, or transgender," Obama wrote. "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."
White House press secretary Jay Carney did not rule out an executive order that would extend protection from anti-gay discrimination only for federal contractors but said it would be "preferable and better" to do it legislatively. Carney also said the White House noted Boehner's comments on ENDA "with regret."
The vote comes as a Democratic member of Congress disclosed in an opinion piece Monday that he was gay. Rep. Michael Michaud (D-Maine), who is running to be that state's governor, wrote that his sexual orientation is "just a part of who I am, as much as being a third-generation mill worker or a lifelong Mainer."
"With a super majority of Senators, more than 100 major American companies, and more than two-thirds of Americans all standing proudly in support of ENDA, there is tremendous momentum behind this common-sense bill," Human Rights Campaign President Chad Griffin said in a statement after Monday's vote. "ENDA's time has come, and we're not going to stop fighting until it is passed once and for all."
Still, some of the bill's opponents warned that the bill would impose burdens on businesses and hamper religious freedom.
"We oppose discrimination in the workplace and believe the essential dignity of every individual should be respected," said Ralph Reed, president of the Faith and Freedom Coalition. "But this bill opens a Pandora's box of assaults on religious freedom, litigation and compliance costs for businesses and nonprofits that will be a nightmare."
Manu Raju, Jonathan Allen and Jake Sherman contributed to this report.
Correction: Due to an editing error, an earlier version of this story incorrectly reported that the Senate passed ENDA in 1996.
