October 9, 2013 | by Chris Johnson
Despite shutdown, activists continue to engage on ENDA
U.S. Capitol, gay news, Washington Blade

Advocates say work on ENDA continues despite the government shutdown. (Washington Blade file photo by Michael Key)

Despite the ongoing stalemate in Congress in the second week of a government shutdown, advocates say they’re undaunted in their efforts to pass pro-LGBT legislation.

LGBT rights supporters say they remain engaged on a high-priority bill, the Employment Non-Discrimination Act, and assert plans for a vote in the Senate this fall remain unchanged.

Christian Berle, legislative director for Freedom to Work, said he doesn’t expect the shutdown to have any impact on the timing of an ENDA vote.

“We’ve always believed the most likely window for a Senate vote on ENDA was between the last week of October and Thanksgiving, and we think we’re still on track for that timing,” Berle said.

Even as Congress focuses on finding an agreement to restore funds to keep the government in operation and raise the nation’s debt limit, advocates say they met last week with lawmakers to build support for ENDA.

Rea Carey, executive director of the National Gay & Lesbian Task Force, said the shutdown “will not shut us up” on issues like ENDA as well as immigration reform.

“It’s always the right time for rights and protections: that’s why we were on the Hill last week pushing for ENDA with the members and their staff who remain at their desks during the shutdown,” Carey said. “Just because some members of Congress don’t want to do their jobs, doesn’t mean that we should stop doing ours.”

Similarly, Berle said last week Freedom to Work “had a very productive discussion” with an undeclared Republican senator who was eager to learn about the bill.

“While senators are focused, on both sides of the aisle, on resolving the government shutdown, they can walk and chew gum at the same time,” Berle said. “We have been actively engaging with our allies on the Hill, while continuing to lobby the swing votes.”

Berle declined to name the undeclared senator with whom he spoke, but said the lawmaker is “actively considering” support for the bill.

Although LGBT advocates are saying the trajectory for ENDA is unchanged, lawmakers close to ENDA are silent during the government shutdown.

Emails to the offices of Senate Majority Leader Harry Reid (D-Nev.); Sen. Jeff Merkley (D-Ore), ENDA’s chief sponsor; and Senate Health, Education, Labor & Pensions Committee Chair Tom Harkin (D-Iowa) were returned with automatic replies that the offices were closed.

A Senate senior Democratic aide, who spoke on condition of anonymity, said he hasn’t heard about ENDA discussions and “everything’s on hold” besides budget and debt negotiations. Still, he didn’t dispute that advocates are engaged on the legislation.

“That’s probably credible, but they also have to put on airs, or put up a face like they’re still doing the work on it,” the aide said. “But, honestly, we’re not going to get to anything until the week of Halloween. We won’t get to anything other than debt ceiling and government funding until Halloween week, so everything is on hold until we address those two things.”

Americans for Workplace Opportunity, the $2 million campaign whose steering committee consists of 11 groups seeking to pass ENDA, didn’t respond to multiple requests for comment on the status of its ENDA lobbying during the government shutdown. The campaign was scheduled to have a citizens lobby day on Capitol Hill to push for ENDA passage on Oct. 3.

As gridlock continues, it’s reasonable to question whether legislation that would prohibit discrimination against LGBT workers could reach the president’s desk during the current Congress.

Berle insisted the situation is different for ENDA when asked if the current impasse reflects poorly on the chances for passage of the LGBT bill.

“ENDA is not a partisan issue, unlike the budget and government funding, senators on both sides of the aisle are in ongoing discussion about the need for employment protections,” Berle said. “We are confident that ENDA will have the 60 votes necessary for cloture. We’re ready to pass these fundamental workplace protections.”

Berle added that there is time to push for ENDA in the House, where passage will be more difficult.

“Fortunately there are still 15 months in the current Congress to pass ENDA,” Berle said. “Freedom to Work is actively engaging not only with Senate offices, but are picking up Republican supporters in the House to help press the case for consideration and building a majority in the House of Representatives to make federal workplace protections for LGBT workers a reality.”

A shutdown for marriage equality lawsuits?

The shutdown could also have an impact on another route LGBT advocates are using to pursue LGBT rights: the federal judiciary. The website for the U.S. courts, as reported by ThinkProgress, at the time of the shutdown said the court would remain open for about 10 business days, but on or around Oct. 15, the judiciary will reassess the situation.

Jon Davidson, legal director for Lambda Legal, said it’s unclear at this time whether the shutdown will lead to a nationwide closure or impact the 35 marriage equality cases he counts pending before the judiciary.

“Federal courts will be operating at least until mid-October and thereafter, it will vary by courthouse, as each federal district and circuit makes its own independent budget decisions,” Davidson said. “Furloughs of nonessential federal judicial staff is likely to lead to postponements of pending hearings in many parts of the country, but I have not heard of any of the immediately upcoming hearings in marriage cases being delayed.”

The case for which a closure of the federal judiciary could have the most immediate impact is DeBoer v. Snyder, the federal lawsuit seeking marriage equality in Michigan. Oral arguments are set for Oct. 16, just about the time the federal judiciary will make a reassessment.

Rod Hansen, a spokesperson for the U.S. District Court for the Eastern District of Michigan, said he doesn’t expect oral arguments in the case will be affected by the shutdown.

“There is no way of being sure, but I doubt very much that it will be postponed,” Hansen said.

But Davidson said the shutdown is already having an effect on other parts of the federal court system that are important to LGBT people.

“Immigration courts have postponed hearings in matters not involving someone in detention, meaning delays for many individuals seeking asylum or binational married couples seeking green cards for the foreign spouse,” Davidson said. “Discrimination proceedings before the EEOC are being postponed, which is having a negative impact on several cases we are currently handling on behalf of LGBT and HIV-positive workers.”

House-passed NIH bill would fund AIDS research

As Congress hashes out the way forward, the House continues to pass bills to fund the government through a piecemeal approach without approving legislation that would restore operations to the government as a whole.

Among these bills is a measure to continue funds for the National Institutes for Health. As the Blade reported last week, the lack of funds for this agency has implications for HIV/AIDS because the shutdown put a freeze on new medical research related to the disease.

The White House has threatened to veto the legislation, saying a piecemeal approach to fund the government isn’t appropriate, and Reid indicated a lack of interest in bringing up the bill in the Senate, saying, “What right do they have to pick and choose what parts of government can be funded?”

Laura Durso, director of LGBT research at the Center for American Progress, rejected the idea of funding the government through a piecemeal approach and said her organization doesn’t support the bill.

“While this piecemeal approach to funding the government is not a sensible strategy, restoring funding to the National Institutes of Health will mean that coordination and execution of life-saving research will continue under agencies such as the Office of AIDS Research and the National Institute of Allergy & Infectious Diseases,” Durso said.

Chris Collins, director of policy for amfAR, said the government shutdown magnifies a larger problem of inadequate government funds for AIDS research and is keeping American scientists away from an international HIV vaccine conference taking place this week in Barcelona, Spain.

“The government shutdown is frustrating AIDS research in multiple ways,” Collins said. ”It has already kept scores of U.S. government scientists away from an HIV vaccine conference this week. This, on top of a continued loss of purchasing power of NIH funding over the years, will slow down new discoveries in the fight against AIDS and other diseases.”

Meanwhile, LGBT people are among the estimated hundreds of thousands of federal workers who remain on furlough during the shutdown.

Just like during the shutdown 17 years ago, these workers seem headed to receiving compensation for the time they’ve been unable to work. On Saturday, the House passed a measure to restore their pay, but only after the funding for the government as a whole is restored.

President Obama endorsed the idea of providing these workers with pay for the time they were furloughed, saying, “That’s how we’ve always done it.”

On Monday, Defense Secretary Chuck Hagel recalled most civilian Pentagon furloughed employees back to work on the basis of Obama signing the Pay Our Military Act to continue funding for the armed services.

Capt. Valerie Palacios, spokesperson for the LGBT employee affinity group at the Pentagon known as DOD Pride, said her fellow LGBT employees look forward to getting back to their jobs.

“DOD civilians, LGBT or otherwise, are proud to go back to work to support the military, but we, along with military personnel and the defense industrial base, remain severely hampered in our ability to do work critical to National Security by the lack of funding to support key programs,” Palacios said. “We all look forward to the day when we can get back to this critical work. Our nation’s safety depends on it.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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