How will pro-gay bills fare after Senate shift?

by Peter Freiberg

U.S. Rep. Barney Frank says the GOP-ruled House is a major obstacle to pro-gay legislation. (by Clint Steib)

In the wake of this week’s shift in control of the U.S. Senate from Republican to Democratic, the outlook for passing two key pro-gay bills remains what it was before the switch — uncertain.

Some legislators, lobbyists and activists backing the Employment Non-Discrimination Act and a hate crimes bill that includes sexual orientation said the Senate shift to the Democrats bolsters the chances of passage — at least in that chamber.

"The change in the Senate leadership," says Winnie Stachelberg, political director for the Human Rights Campaign, the nation’s largest gay political group, "is a good sign for … ENDA and hate crimes."

But if either bill — or both — passes the Senate, backers will still have to contend with the House Republican leadership, which openly gay Rep. Barney Frank (D-Mass.) calls a huge obstacle to passage.

"In the Senate," he says, "even under Republican rule, the Democrats, with some Republican allies, were able to get votes on both ENDA and hate crimes."

In the GOP-ruled House, Frank says, the Republican leadership remains staunchly opposed to any legislation "that helps protect the rights of gay and lesbian people." The best that can be accomplished, Frank says, is probably a non-binding, advisory vote — the kind that took place last year in the House on the hate crimes bill, formally titled the Local Law Enforcement Enhancement Act.

Still, Senate hearings and passage of both bills could give them additional momentum, as could a Gallup poll released this week that showed 85 percent of Americans now say they believe homosexuals should "have equal rights in terms of job opportunities" — a sharp rise from 56 percent in 1977.

Commenting on the poll, HRC communications director David Smith says, "We are most heartened by the continuing growth in support for equal opportunity in the workplace, which can only be accomplished by enacting a federal law such as [ENDA]."

A number of supporters assert there was majority Senate support for both bills when the GOP was in control — the difficulty was always getting the legislation out of committee for a floor vote.

One of the "great values of a party controlling the Senate," notes Chris Anders, an openly gay lobbyist for the American Civil Liberties Union, "is that they get to control the agenda and what comes to the Senate floor.

"With the Democrats largely committed to passage of ENDA and hate crimes," Anders says, "the possibility of getting actual time on the Senate floor to consider the legislation is much, much greater."

With their party now in control, Senate committee chairs will be Democratic and Democrats are expected to have a one-vote majority on each committee. Democrats will have the power to hold hearings on issues.

For the hate crimes bill, which has already been introduced in both houses, the change in Senate committee chairs is important. Sen. Orrin Hatch (R-Utah), an opponent of the gay-inclusive measure, has been replaced as head of the Senate Judiciary Committee by Sen. Patrick Leahy (D-Vermont), a strong supporter.

David Carle, a spokesperson for Leahy, told the Blade Tuesday, "It is fair to say that renewing the effort to enact the hate crimes bill will be a priority of his."

Matthew Ferraguto, a spokesperson for Sen. Edward Kennedy (D-Mass.), the new chair of the Health, Education, Labor and Pensions committee, says both hate crimes and ENDA are among Kennedy’s "top priorities" for this Congress.

"First," says Ferraguto, "will come education, then patients’ bill of rights, then minimum wage. Then hate crimes is one of the really attractive options for the next step. We’re really hopeful we could be working on the legislation after we come back after [July 4]."

Ferraguto says there are now 51 Senate original sponsors on the bill, including six Republicans, plus 10 other senators who voted for the bill last year, when an amendment sponsored by Kennedy and Sen. Gordon Smith (R-Ore.) passed the Senate 57-42.

"Hopefully," says Ferraguto, "if they all vote for the bill, then it’s 61, which is filibuster-proof."

ENDA has not yet been introduced in either house this year. The only congressional vote ever on the bill took place in September 1996, when the Senate rejected it by a single vote, 50-49.

Kennedy’s committee has jurisdiction over ENDA, and its previous chair, Sen. Jim Jeffords, the Vermonter whose switch from Republican to independent gave the Democrats their new 50-49 majority, was ENDA’s previous lead sponsor. Now, says HRC’S Stachelberg, it is undecided who will be lead sponsor.

"But Sen. Kennedy," she says, "is the chair of the committee, and that is good for ENDA. It has been his bill since its introduction, and he has been … a civil rights giant." Sen. Tom Daschle (D-S.D.) is also a co-sponsor, Stachelberg noted; he replaced Sen. Trent Lott (R-Miss.), who strongly opposed gay civil rights and hate crimes bills, as Senate majority leader.

A hearing on ENDA is likely to be scheduled, Ferraguto says. "In the past couple of years there’s been increased corporate support for the bill," he said, "and we’d be hoping to demonstrate that and to allay some concerns, and to better make the case for the bill."

Nevertheless, the Democrats’ Senate leadership takeover is so new that much remains in flux, and strategy on both ENDA and hate crimes is certain to evolve.

"We need to be cautious and strategic," says Stachelberg, "about when and how ENDA and hate crimes and other pieces of legislation are brought forward, and we will be working with our Senate allies and the new leadership."

A key element on deciding Senate strategy will be how best to counter — if that is possible — the certain opposition from the House Republican leadership.

ENDA would add sexual orientation to current federal law that bars discrimination based on race, religion, gender, national origin, age and disability.

In a May 30 letter to House colleagues asking them to be co-sponsors, a bipartisan group of four lead sponsors, including Reps. Frank and Christopher Shays (R-Conn.), called ENDA a "common-sense solution" to the problem of anti-gay job discrimination.

ENDA would bar employers from making decisions about hiring, firing, promoting or compensating based on sexual orientation. And it makes clear that quotas or preferential treatment based on sexual orientation are prohibited.

The hate crimes bill would allow the federal government to prosecute violent hate crimes committed against individuals based on sexual orientation, gender and disability. Existing law restricts federal prosecution to hate crimes based on a victim’s race, religion or ethnicity.

ENDA has nearly universal support among gay activists. However, Tim McFeeley, political director for the National Gay and Lesbian Task Force, says the organization withdrew its backing because the bill does not cover transgendered people nor does it include "gender identity or some other inclusive language."

"I … want it to include protection for masculine-looking and appearing women and feminine-looking and appearing men," McFeeley says.

Hate crimes legislation has wide support among activists, but some critics say current law provides for adequate prosecution of crimes and that the measure threatens free speech.

The ACLU’s Anders says the organization is withholding support unless an amendment is added to keep out evidence of hate speech that is not directly related to the crime.

"We’re not at this point supporting or opposing the legislation," Anders says, "but we’re asking for it to be amended."

Although the only congressional vote on ENDA occurred nearly five years ago, the hate crimes votes came last year.

In June, the Senate voted 57-42 in favor, with 44 Democrats and 13 Republicans supporting it. In September, the House voted 232-192 in favor, with 190 Democrats and 41 Republicans backing the measure.

The strategy used for last year’s hate crimes votes is likely to be duplicated, at least in part, in the ENDA and hate crimes efforts this year — and the outcome demonstrates the obstacles involved in winning passage in both chambers.

The hate crimes measure was attached in the Senate to a defense authorization bill previously voted by the House, which meant it had to be considered in Senate-House conference to reconcile the differences in the two bills.

The House then voted a motion to "instruct" its conferees to keep the hate crimes amendment in the defense bill. But such a motion is non-binding, and the next month the conference voted to remove the hate crimes language from the legislation.

It is essential that the Senate attach ENDA and the hate crimes bill to other legislation, says Frank, because if either was a freestanding bill, House GOP leaders "wouldn’t even take it up."

"The whole problem," he says, "is the Republican leaders will bring up only anti-gay things."

If ENDA and hate crimes are tacked onto other bills this year, then supporters can again propose a motion to instruct, as they did last year. At that time, says Frank, Democratic Minority Leader Richard Gephardt (D-Mo.) agreed to move that House conferees retain the hate crime provision.

Under the rules, the motion to instruct must be non-binding. And if House Republicans, despite favorable votes, insist on stripping hate crimes or ENDA from the larger bills in the House-Senate conference, how can that be stopped?

Last year, it couldn’t, since GOP leaderships in both houses opposed the hate crimes bill. But now, with the Democrats controlling the Senate and controlling that chamber’s conferees, something new is added to the equation.

"It puts the Democrats in the Senate in a much stronger position to negotiate with the Republicans in the House," says the ACLU’s Anders.

He adds, "It will depend very much on what kind of priority the Democrats in the Senate put on passing the legislation this Congress, and how hard they will negotiate."

Carl Schmid, a Washington-based gay Republican activist who often lobbies on Capitol Hill, says that while the Senate vote count hasn’t changed with the shift in control — he believes both ENDA and hate crimes would pass there — "what’s beneficial will be the conference committee if it goes to the House."

Frank says that if the House GOP leadership "holds out strongly against" either piece of legislation, "the argument for adding something to a totally unrelated bill can be difficult."

Kevin Ivers, a spokesperson for Log Cabin Republicans, a national gay group, says his organization will continue to work for ENDA and some version of hate crime legislation.

Ivers maintains that passage is possible if the "partisan political games being played by the extremes on the right and the left" are avoided.

"Getting something accomplished is going to require working together," he says. "Republicans and Democrats, House and Senate and White House."

Nevertheless, passage of both ENDA and hate crimes — or even one of the measures — will require many cards to fall the right way, and a number of supporters believe that is a long shot.

But Schmid says he believes public and political sentiment is increasing momentum for passage. He says he even thinks President George Bush would sign either bill, contrary to some other backers who point to past Bush statements and actions indicating he opposes including sexual orientation in hate crimes or civil rights laws, as well as to the fierce opposition of the GOP’s religious right wing.

Pointing to the Gallup poll, Schmid says, "When you have the vast majority of the people supporting equal opportunity for gay and lesbian people in the workplace, I think the role and the voice of the religious right will be drowned out by that."

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This article appeared in the issue of:
June 8, 2001