Congressional deliberations over major defense spending legislation will give way either to a bill that contains or lacks a provision undermining President Obama’s executive order against anti-LGBT discrimination, but the resolution to those discussions won’t happen until after Election Day.
As reported by various media outlets, House and Senate lawmakers announced this week they’re putting off agreement on the final version of the fiscal year 2017 defense authorization bill until the lame duck session of Congress — a time when legislators will be able to act without the harsh glare of public visibility right before Election Day.
The last major issue of contention is unrelated to defense: Whether the sage grouse — a short-legged North American bird whose population is in decline — should be removed from the U.S. government list of endangered species.
Although the language is in the House version of the bill, the provision isn’t in the Senate version.
Senate Armed Services Committee Chair John McCain (R-Ariz.) on Tuesday identified the language as the reason why a resolution on the defense authorization will have to wait until after Election Day, according to Defense News.
“I think it’s pretty obvious that we’re going to have to go to lame duck,” McCain said. “Sage grouse! It’s the major impediment. It’s terribly frustrating.”
But the key issue for which LGBT advocates are awaiting resolution is whether the final package will contain language found in the House version of the bill undermining Obama’s 2014 executive order prohibiting federal contractors from engaging in anti-LGBT workplace discrimination. The language, inserted by Rep. Steve Russell (R-Okla.) at the committee level in the House version of the bill, doesn’t appear in the Senate version.
Guided by the principle nothing in the defense authorization package is agreed upon until everything is agreed upon, members of the conference committee are staying mum in response to the Washington Blade’s request for comment on whether the provision is in or left out of the final package.
The provision would require the federal government when contracting with religious organizations to afford them exemptions consistent with the Civil Rights Act of 1964 and the Americans with Disabilities Act. Since neither of those laws prohibits anti-LGBT bias, the amendment would enable religious organizations doing business with the U.S. government to discriminate on the basis of sexual orientation or gender identity.
Because the measure would have the force of law, it would overrule the executive order signed by President Obama in 2014 prohibiting contractors doing more than $10,000 a year in business with the U.S. government from engaging in anti-LGBT discrimination against employees.
The amendment provides an exemption for “any religious corporation, religious association, religious educational institution or religious society” contracting with the U.S. government. All of those terms are undefined in the amendment, but the lack of definition for “religious corporation” could allow courts to construe the term broadly to apply to any federal contractor — not just religious organizations — in the aftermath of the U.S. Supreme Court’s 2014 decision in the Hobby Lobby case.
Laura Durso, senior director of LGBT research and communications at the Center for American Progress, said based on discussions with lawmakers she’s “confident” the anti-LGBT language won’t be included in the final version of the bill.
“As more moderate House Republicans have learned about the harmful ramifications of the Russell amendment, they are voicing their concerns about supporting this type of taxpayer-funded discrimination, suggesting this provision simply doesn’t have enough support,” Durso said.
Among the lawmakers leading the charge against the language is gay Rep. Sean Patrick Maloney (D-N.Y.), who is seeking to remove the provision from the final package — or at least to abrogate its effect.
In May, Maloney introduced an amendment to a separate military appropriations bill that would have nullified the anti-LGBT language in the defense authorization bill, but the amendment narrowly failed on the House floor after seven House Republicans changed their votes from “yes” to “no,” leading to accusations congressional leadership strong-armed them to alter their votes.
The House adopted a subsequent amendment protecting Obama’s executive order as part of an appropriations bill for energy and water infrastructure, but ultimately sacked the whole package rather than approving the legislation. After House Speaker Paul Ryan (R-Wis.) adopted a new policy restricting the open amendment process in the House, the House Rules Committee refused to accept yet another amendment from Maloney protecting the order.
Maloney told the Blade whether the language will emerge in the final package “remains to be seen,” but said he testified before the conference committee to urge lawmakers to remove the language.
“None of us should be surprised that Republicans are willing to jeopardize the security of the United States to discriminate against gay people,” Maloney said. “They are out of their minds on this issue, and insist on dragging this into an unrelated and important national security bill, notwithstanding the fact that 43 of their own members and a bipartisan majority of the House voted against it.”
If the conference committee produced a defense authorization bill containing the anti-LGBT language, Senate Democrats could hold up the legislation through a filibuster, and even if it made it past that point, President Obama could veto the package.
In May, the White House issued a Statement of Administration Policy, an official document outlining the administration’s position on legislation, on the defense authorization bill and said Obama “strongly objects” to the anti-LGBT provision. The document warns Congress that Obama would veto the legislation as a result of that language, but also the sage grouse language and a provision restricting the executive branch’s ability to remove terrorist suspects from the detention facility at Guantanamo Bay, Cuba.
White House Press Secretary Josh Earnest in May declined to say explicitly whether Obama would veto the defense authorization bill over the anti-LGBT language alone, but hinted that was the case and called the provision seeking to enable discrimination “perverse.”
“The president has on a number of occasions protected his ability to use that executive authority in his negotiations with Congress because we know that there are some in Congress, who for reasons that seem rather perverse to me, believe that the president shouldn’t be taking actions to prevent discrimination,” Earnest said.
Maloney said he would recommend a veto if the defense authorization bill contained the anti-LGBT language and expressed confidence Obama would take that action, but said McCain should be blamed if it came to that point.
“This is really on Sen. John McCain, and if he wants to explain to his voters in Arizona and to the American people why the security of the United States requires discriminating against LGBT people, then he should do so,” Maloney said. “Otherwise, they should stop wasting everybody’s time and pass a clean bill.”