With the US Senate looking certain to pass the Employment Non Discrimination Act (ENDA), House Speaker John Boehner is already positioning himself against the legislation. This is a critical error that typifies Boehner’s tenure as House speaker.
When John Boehner was elected Speaker of the House of Representatives, he did so pledging to make jobs “priority one.” The dismal failure of the House to actually prioritize employment in any meaningful way barely needs mentioning, but that Boehner’s office this week saw fit to comment not once but twice on his position against ENDA, a bill that seems entirely in keeping with his jobs promise, is laughable.
Said a Boehner spokesperson on Monday: “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.”
The spokesperson later added, ”We have always believed this is covered by existing law. [This is] not a new issue or a new position — it’s a longstanding position, and, frankly, not ‘news’ at all. This has been his position, on the record, for years, stated publicly many times.”
Myth 1: ENDA Would Increase Frivolous Lawsuits
Boehner’s belief here is wrong and it is simply untrue that LGBT employment protections lead to frivolous lawsuits.
The U.S. Government Accountability Office issued a report in July stating that in the 22 states that currently have statutes that explicitly prohibit sexual orientation-based employment discrimination, survey data shows there has not been any marked increase in lawsuits on the basis of LGBT-employment provisions and certainly no increase in frivolous lawsuits.
Myth 2: LGBTs are Already Covered Under Federal Law
While gender identity is implicitly protected under current federal regulations, gaps in state and federal law make it lawful to fire LGBs in 29 states and have made it possible to fire trans people in 33 states for no other reason than their sexuality or gender identity or expression.
Furthermore, enumerating classes — like racial and religious minorities — has been shown to improve nondiscrimination efforts because it allows the government to more easily and accurately track things like employment figures and discrimination complaints.
Myth 3: ENDA Would Cost Small Business Jobs
These is no data to suggest that state level ENDAs have in fact been an imposition to small businesses as a whole. Furthermore, there are a number of small businesses, like the 300 noted in this HRC campaign, and big businesses, like Apple and a hundred other brands, that support ENDA precisely because they believe that sexual orientation and gender identity or expression should not be a barrier to employment. That’s in line with what the majority of the public believe, too.
The Public Supports Workplace Fairness for LGBTs
Majorities in all 50 states support ENDA-like legislation, ranging from 63 percent in Mississippi to 81 percent in Massachusetts according to a Washington Post analysis. Not only that, but polls often frequently point out that people believe LGBT workplace equality is already the law.
What can we conclude from all this? That Boehner and his cohorts aren’t interested in serving the public, but only a narrow agenda. Here’s the rub, though. We might assume that all religious conservative Republicans are against ENDA, but that’s not true.
Even Religious Conservatives Support ENDA
Utah Republican Senator Orrin Hatch and Senator Dean Heller of Nevada joined several other Republicans and 54 Democrats in pushing ENDA past the 60 vote cloture threshold needed to overcome any Republican obstructionism this week.
Hatch, who has previously voted against ENDA and has in the past been a vocal opponent of several gay rights measures, is quoted as saying “Discrimination is wrong. The bill exempts churches and religious organizations, and the bill prohibits quotas and preferential treatment” and that is why he supports the legislation.
The Church of Latter Day Saints, while notably fighting same-sex marriage, has as an official stance supported ENDA like legislation in the past and does not appear to find this version of ENDA objectionable.
Indeed, polls suggest a majority of Republicans and even evangelicals support the legislation. As such, Boehner and his assorted House Republicans can’t object to this legislation on its merits because there is nothing objectionable about basic workplace fairness, especially not with (some would say overly broad) religious exemptions the bill contains. Nor can they object to it as a matter of following public opinion. As such, Boehner’s stance is empty-headed and simply panders to the bigotry of the Tea Party.
Are Republicans Needed for the House Vote?
Sadly, yes. It will take 218 votes to pass in the House and currently there are only 193 sponsors. That threshold doesn’t seem entirely out of the question because moderate Republicans have shown a willingness to engage on ENDA, especially because it is being seen as a way for the party to reach out to the LGBT community and engage with younger voters. However, that’s on the provision that Boehner will allow a floor vote and that is by no means guaranteed.
Yet this positioning will only serve to further dig Boehner into a hole: one that could benefit the Democratic party greatly.
Will the President Move on ENDA Even if Congress Can’t?
In an interesting, and somewhat related development, there appears to be a softening from the White House on signing an executive order to mimic ENDA until the House is in a better shape to pass the legislation.
Until now President Obama has remained firm that he supports only legislative action, suggesting that to sign an executive order would not really be a solution and would in fact undercut future legislative efforts. For this stance, Obama has earned widespread criticism that he is allowing LGBT federal workers to continue to suffer employment discrimination when a remedy is within easy reach. Despite this, the White House had remained firm. Until now.
Asked on Monday, November 4, about ENDA, White House spokesperson Jay Careny reportedly said:
“What we’ve said about this is two things,” Carney said. “One, the preferable and better path has been through Congress because that would be inclusive. An executive order that addresses federal contractors obviously would not be inclusive; it would not extend beyond federal contracts. So, we’re focused on getting ENDA through Congress. When I used to answer questions about an executive order by saying that, there was great skepticism that it would get this far, and we have come to a moment where quite likely, in fact possible, that the Senate will pass this, so we’re going to keep pressing ahead.”
The Washington Blade pressed Carney as to whether the President is open, then, to signing the order in the near term. Carney would not be drawn on that matter, but the language here is markedly softer than in previous comments and would seem to suggest that, if Democratic lawmakers cannot find enough Republican support in the House to get around Boehner’s stonewalling, the White House might use this as an interim measure while, at the same time, being able to squeeze political gain out of it.
Boehner’s intransigence on this issue doesn’t just put him out of step with liberals or the mainstream, it actually throws him far beyond majority Republican opinion on this issue and will no doubt feature as part of the 2014 Congressional elections where Democratic lawmakers hope to gain back the House majority.
The irony of this is that Boehner need only get out of his own way in order to let the issue play out, he need not oppose the legislation and could simply let the votes fall where they may, but so entrenched is his “Party of No” stance that, sadly, it seems to have become almost automatic.