The Employment Non-Discrimination Act (ENDA) is advancing through the U.S. Senate this week and could pass that body for the first time in the bill’s nearly 20-year history. In a roundtable with reporters Wednesday morning, Majority Leader Harry Reid (D-NV) said he expects the final vote will take place by Thursday. Before that passage, however, some Republican Senators may attempt to weaken the bill with amendments expanding its already expansive religious exemptions. The bill is expected to pass without such compromising provisions, and Reid believes it even has potential in the House of Representatives, but its fate remains unclear.
One amendment that already passed on Wednesday by a voice vote ensures that government entities cannot retaliate against organizations that utilize ENDA’s religious exemptions. It was proposed by Sens. Kelly Ayotte (R-NH) and Rob Portman (R-OH) in exchange for their support during Monday’s cloture vote. Groups that support ENDA, such as the Human Rights Campaign and ACLU, have dismissed the amendment as “unnecessary” but not problematic. When asked if he thought it could force state or local governments to fund discriminating organizations in violation of their own local ordinances, Majority Leader Reid told ThinkProgress that he is not worried about any “boogeyman” behind the amendment: “The one thing the American people have come to acknowledge is basic fairness,” and the amendment will not prevent state and local governments from simply working things out.
Reid did concede in regards to ENDA’s existing religious exemption that “there is nothing that we do that’s perfect… You do the best you can. The goal is to get something passed; move forward.” Still, a proposed amendment from Sen. Pat Toomey (R-PA), who also surprisingly supported cloture Monday evening, would expand that religious exemption beyond what’s already in the bill.
Toomey’s amendment would add language exempting any employer that is “officially affiliated with a particular religion” or religious organization. That means that an employer could conceivably cite membership in a local congregation or could join a religious business organization and then use that affiliation to justify discriminating against LGBT employees. The end result would be that obeying ENDA would be completely optional for anyone in the country — not just religious organizations managing their own operations. Toomey’s amendment is not expected to pass, but it remains an indication of how far Republicans are willing to go to justify religious-based discrimination. After the meeting, a Reid aide told ThinkProgress that the Toomey amendment would gut the bill and that Senate leadership is confident it will be rejected.
ENDA’s fate after clearing the Senate is uncertain. House Speaker John Boehner (R-OH) seemed to dash hopes that the House would even consider the bill after expressing his opposition Monday, but Reid said, “I wouldn’t be too sure about that.” Noting that the House has also avoided or delayed taking up other widely popular bills like immigration reform and the farm bill, Reid believes “the House is going to have to capitulate” on something:
REID: If they have any hope of having a president that can be a viable candidate or if they think they can elect some Republicans — you know — they want to hang on to the House? They got issues… I think they better be careful putting big stop signs to all this legislation the American people agree with.
Though Reid was not as optimistic about attaching ENDA to another bill, he believes that it would easily pass the House if Boehner allowed for a vote. The House version currently has 193 sponsors, only five of whom are Republicans. Should that not happen, he believes President Obama would be forced to finally issue an executive order preventing federal contractors from discriminating on the basis of sexual orientation and gender identity. Though, like the President, Reid prefers the legislative solution, he doesn’t believe federal employees should have to remain unprotected because of “Republicans’ insensitivity.” Even if ENDA does become law, such an executive order would still be an important step for protecting many small businesses not covered by ENDA.
Whatever the ultimate resolution, the Senate’s passage of ENDA will raise awareness that LGBT employees remain unprotected across the country.