When the polls closed on Tuesday, the Republican takeover of the U.S. Senate made clear further advancement of LGBT rights in Congress became a lot more complicated — if not totally put on ice.
Shortly after 11:20 pm, the Associated Press reported Republicans won control of the Senate — presumably clearing the way for Sen. Mitch McConnell to become Senate Majority Leader — by picking up seats in Iowa, North Carolina, Colorado, Arkansas, West Virginia, Montana and South Dakota. Additionally, media outlets projected Republicans would win about 10 seats in the U.S. House.
Gregory T. Angelo, executive director of the Log Cabin Republicans, said the GOP gains will be a test for LGBT groups on whether they’re willing to work in a bipartisan fashion in the 114th Congress.
“This is really a time of choosing for LGBT advocates on the left,” Angelo said. “Do you support the left agenda, or do you actually support equal rights for Americans? Those who fall in the latter category are going to be the ones who are going to be come to the table with Republicans and find solutions, ways to pass things, like employment protections for LGBT individuals, that also reach consensus among Republicans.”
Angelo said he’ll meet with Log Cabin’s board of directors in January to discuss priorities, but one area of interest for which he’s seen a “tremendous appetite” among Republicans on Capitol Hill — even if they’re not on board with other pro-LGBT initiatives — is confronting human rights abuses against LGBT people overseas.
One bill that LGBT advocates may continue to push is the Employment Non-Discrimination Act, legislation that would bar employers from engaging in anti-LGBT bias in the workplace. There’s also interest in a comprehensive civil rights bill, which has been endorsed by the Human Rights Campaign, which would institute LGBT protections in employment, public accommodations, housing, credit, education and federal programs.
But Republican control may put the kibosh on these bills in the upcoming Congress, let alone versions of the legislation sought by LGBT advocates that would narrow the religious exemption along the lines of Title VII of the Civil Rights Act of 1964.
Jeff Cook-McCormac, senior adviser to the pro-LGBT Republican group American Unity Fund, nonetheless said he sees a way forward if an “authentically bipartisan strategy” is applied.
“Instead of being contentious, we’re going to have to meet Republican legislators where they are and engage in thoughtful conversations about the time in which they have the level of comfort to move legislation forward,” Cook-McCormac said. “I think it presents both new challenges and new opportunities for the movement to advance these issues.”
An important part of this strategy, Cook-McCormac said, is making sure Republican members are carrying bills of interest to the LGBT community in consultation with Democratic allies in Congress.
“With regard to advancing the ball forward on an issue that garners broad bipartisan support like non-discrimination, I think there will be an increasing level of interest,” Cook-McCormac added.
Even with Democratic control of the Senate, the current Congress didn’t yield much pro-LGBT legislation. A version of ENDA passed the Senate on a bipartisan basis last year, but the House Republican leadership never brought up the measure.
The one exception to the inaction on LGBT legislation was reauthorization of the Violence Against Women Act, which included non-discrimination protections for victims of domestic violence based on sexual orientation and gender identity.
Jerame Davis, executive director of the LGBT arm of the AFL-CIO known as Pride at Work, predicted more of the same inaction on LGBT legislation when Congress reconvenes in January thanks to Republican victories on Election Day.
“I think it means more gridlock and no movement on LGBT issues in Congress,” Davis said. “We’ve been, as you know, waiting for something akin to the Employment Non-Discrimination Act to pass Congress for over 30 years and with a Republican-controlled Senate, we’re not likely to see movement. In fact, the last time that ENDA made any movement was in the Senate, and the Republican takeover means that bill is certainly dead in that house of Congress.”
With movement on pro-LGBT legislation in question, advocates may be looking elsewhere in arenas other than Congress to advance LGBT rights.
That includes action from Obama, whom advocates are pushing to lift the ban on transgender service in the U.S. military, and the courts, which are still issuing decisions on marriage equality and may soon interpret existing civil rights law to bar workplace discrimination based on sexual orientation.
Davis said LGBT advocates will increasingly turn to state legislatures to act on initiatives if federal pro-LGBT bills continue to languish in Congress.
“Labor contracts protect LGBT union workers even in states with no legislative protections, but that’s not always an option,” Davis said. “Until Congress can pass a clean version of ENDA without extraneous religious exemptions, we will have to look to state legislatures to pick up the slack.”
Anti-gay group pledges ‘religious liberty’ bill
One fear is that Republican control of Congress could lead to passage of anti-LGBT legislation, much like the Federal Marriage Amendment that was brought up for a vote, but failed, the last time the party had majorities in both chambers of Congress during the administration of George W. Bush.
While the rapid growth in support for marriage equality makes such an amendment unlikely, anti-gay groups may push for some kind of federal religious exemption bill that would allow individuals or officials to opt out of facilitating same-sex marriages throughout the country.
In an email blast to supporters on Monday, Brian Brown, president of the National Organization for Marriage, said immediately after the election his organization will “be meeting with the newly elected to discuss the upcoming term and what bills need to be advanced to protect marriage and religious liberty.” The plans, Brown said, include organizing for a 2015 “March for Marriage.”
Cook-McCormac said he doesn’t think anti-gay legislation along these lines will come up based on the Republican lack of interest in moving such bills in the House during the current Congress despite control of the chamber.
“I think there will still be reluctance by Republicans, as we’ve seen over the past two years in the House to advance legislation that in any way rolls back recent gains for LGBT Americans,” Cook-McCormac said. “Most Republican elected officials recognize that any efforts to turn the clock back on freedom for LGBT individuals is something that is extremely unpopular with the American people.”
That forecast for anti-gay bills is bolstered by recent history in Arizona, where Gov. Jan Brewer vetoed a “turn away the gay” bill that would have enabled businesses to discriminate against LGBT people following a media frenzy after the Arizona Legislature passed the bill.
Moreover, any anti-gay bill that comes up in the Senate could be subject by minority Democrats to filibuster, which would take 60 votes to overcome. These bills would also be likely voted down by pro-LGBT members of the Republican caucus, such as marriage-equality supporters Rob Portman (R-Ohio), Lisa Murkowski (R-Alaska), Mark Kirk (R-Ill.) and Susan Collins (R-Maine). In the event that anti-gay legislation somehow passes Congress, LGBT advocates would look to President Obama for a veto.
Fred Sainz, vice president of communications for the Human Rights Campaign, said his organization views new Republican members of Congress as “an opportunity to educate and change hearts and minds.”
“LGBT equality isn’t a partisan issue,” Sainz said. “After all, LGBT people are born to all sorts of parents. We’re just as likely to be born to conservative Republican Baptist parents from Mississippi as we are to liberals from New York City. So it’s incumbent on us to reach out to individuals who we’ll hope to turn into allies and advocates.”
Will Republican House pass ENDA in lame duck?
The uncertainty about the upcoming Congress may also mean Democrats will take the opportunity of the lame duck session to move forward with pro-LGBT legislation while they remain in control of the Senate. Now that the election has taken place, lawmakers are due back in D.C. on Nov. 12 to finish their current session.
One idea sources close to ENDA have articulated is attaching the measure to a larger bill in the Senate, such as to the fiscal year 2015 defense authorization bill, to ensure it reaches Obama’s desk.
Cook-McCormac said Republican supporters of ENDA have “considerable interest” in seeing ENDA passed in the lame duck through one vehicle or another, but the limited timeline and few remaining “must-do” items in Congress to which ENDA could be attached present challenges.
“I think that it’s a little early to tell what the prospects are for something like that, but I do believe that over the next week, week-and-a-half, we’re going to have a much clearer idea of the type of things that might be possible in the lame duck, what the window looks like, and what types of efforts will be necessary to help that move forward,” Cook-McCormac said.
Angelo said he’s “hearing mixed messages” on whether passage of ENDA is a possibility during the lame duck session of Congress.
“I’m hearing Democrats in the Senate are hesitant to attach ENDA to something like NDAA reauthorization, and I’m hearing Republicans in the House are leaning toward attaching ENDA to NDAA reauthorization,” Angelo said.
Angelo identified Rep. Chris Gibson (R-N.Y.) as an ENDA supporter who would be open to passing ENDA as an amendment to the defense authorization bill, and Sen. Jeff Merkley (D-Ore.) as a Democrat who “did not have an appetite” for such a strategy. Their offices didn’t respond to the Washington Blade’s request for a comment on the issue.
In a July interview with the Washington Blade, Rep. Charlie Dent (R-Pa.), an ENDA co-sponsor, said he wanted to see the legislation passed as an amendment to a larger vehicle, but at that time wasn’t sure which legislation would be appropriate for ENDA.
An aide for outgoing Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor & Pensions Committee, said the senator backs “any effort to pass” ENDA when asked if he supports attaching it as an amendment to the defense authorization bill.
Any attempt to move ENDA in lame duck may encounter opposition from LGBT advocates because it would likely be the Senate-passed version of the legislation. That version has a religious exemption that would allow religious-affiliated businesses to continue to discriminate against LGBT workers in non-ministerial positions, unlike protections afforded to other groups under existing civil rights law. Many pro-LGBT organizations, including the American Civil Liberties Union and the National LGBTQ Task Force, have dropped support from this version of ENDA.
“Rather than getting into those fights, I want after the election to see if it’s something that is feasible during the lame duck session, and then we can talk strategy,” Angelo said. “But there are definitely those mixed signals that I’m getting.”