The Remainders

News Analysis: As Republicans look to make gains in the midterm elections and Democrats play defense, few LGBT equality measures remain on the radar for action this year

The chances of the Employment Non-Discrimination Act being signed into law before the start of the 112th Congress in January 2011 are extraordinarily slim due to the lack of any clear path to its passage in the Senate. Add in the current political dynamics strongly favoring Republicans in the midterm elections, and those miniscule chances diminish into nothingness.

Rep. Patrick Murphy’s DADT repeal effort is one of the only LGBT measures expected to get a vote
Rep. Patrick Murphy’s DADT repeal effort is one of the only LGBT measures expected to get a vote
(Photo by Ward Morrison )

Likewise with most other LGBT equality legislation proposed in the 111th Congress, regardless of any action taken on the legislation in the House. The only exceptions are the amendment offered by Rep. Patrick Murphy (D-Pa.) aimed at the repeal of ”Don’t Ask, Don’t Tell” and, with a lesser likelihood, the Domestic Partnership Benefits and Obligations Act.

ENDA, in one form or another, has long been the premier piece of LGBT legislation – a bill whose history reaches back to 1974 and the introduction of the expansive ”Gay Rights Bill” by then-Reps. Bella Abzug (D-N.Y.) and Ed Koch (D-N.Y.) to add ”sexual orientation” to the Civil Rights Act of 1964.

Thirty-five years later, the bill – named ENDA now and focused on employment only since the early 1990s – had better chances for passage. All the more so when House Education and Labor Committee Chairman George Miller (D-Calif.) scheduled ENDA for mark-up.

As the committee’s website still reads, ”On Wednesday, November 18, the House Education and Labor Committee will vote on legislation to end the widespread practice of employment discrimination based on sexual orientation and gender identity.”

Unfortunately, the line above that now reads – and has read for nearly 10 months – ”This markup has been postponed.” This, despite the fact that the bill’s out sponsor, Rep. Barney Frank (D-Mass.), repeatedly has said that he expected the bill to be marked up within weeks. Similar encouraging words had come from Miller and the other out LGBT members of Congress – Reps. Tammy Baldwin (D-Wisc.) and Jared Polis (D-Colo.).

What’s more, no organizations lobbying on the legislation whose officials spoke with Metro Weekly reported that they expect any movement before the midterm elections. And though there has been discussion of a possible House vote following the elections, multiple sources report that any movement is dependent on the outcome of the elections.

And, even should that vote happen and ENDA pass without falling to a hostile motion to recommit in the House, there is no talk from any advocate or office of Senate action this year.

The circumstances for the repeal of DADT – or at least the passage of the repeal language approved by the House earlier this year – are more optimistic. The amendment, included in the House’s passage of the National Defense Authorization Act and approved by the Senate Armed Services Committee for inclusion in its version of the NDAA, remains to be passed by the full Senate and signed into law by President Obama.

Politico reported on Sept. 8, ”Reid’s spokesman Jim Manley said the Senate will focus on small businesses next week. Defense authorization remains on the ‘to-do list’ but no date is set, he said.”

Human Rights Campaign spokesman Michael Cole told Metro Weekly that consideration of the NDAA was ”on track” for the week of Sept. 20. He wrote that HRC is ”continuing to advocate for that bill moving and working to ensure we can maintain the integrity of the language.” The latter statement refers to ”poison pill” amendments that would, for example, expand the current certification language that requires the sign-off of the president, secretary of defense and chairman of the Joint Chiefs of Staff to effectuate repeal to include the sign-off of all of the individual service branch chiefs.

Alex Nicholson, the executive director of Servicemembers United, stressed the importance of a vote before the fall elections, writing in an e-mail to Metro Weekly, ”It is simply an unacceptable risk to push the defense authorization bill off until the lame duck session. If even one of the chambers changes party and a leadership cadre hostile to repeal takes over, that could spell the end to all of the progress we have made so far on repeal.”

He went on to write that Senate Majority Leader Harry Reid (D-Nev.) would ”have to answer not only to an outraged and betrayed LGBT and progressive community, but also to the mainstream defense community whose budget authorization will have been held up and delayed for purely political reasons” should he fail to schedule a vote on the NDAA before the elections.

Despite Nicholson’s focus on Reid, it was Sen. John McCain (R-Ariz.) who took to the floor of the Senate prior to the August recess to detail his possible plans to attempt to hold up the bill. On Aug 5, he said, ”I’m not going to allow us to move forward [on the NDAA], and I will be discussing with my leaders and the 41 members of this side of the aisle as to whether we’re going to move forward with a bill that contains the ‘Don’t Ask, Don’t Tell’ policy repealed before, before a meaningful survey of the impact on battle effectiveness and morale of the men and women who are serving this nation in uniform.”

McCain added, ”It’s again, the chairman of the committee [on Armed Services, Sen. Carl Levin (D-Mich.)] and the majority leader [Reid] and the other side moving forward with a social agenda on legislation that was intended to ensure this nation’s security.” Levin responded with a reminder the ”Don’t Ask, Don’t Tell” was initially passed into law as part of the defense authorization in 1993.

Regardless of McCain’s intentions, however, it is not clear that he has the support to hold up the bill – for the very reasons detailed by Nicholson in his warning to Reid.

The final legislation that could see some movement still in this Congress is the DPBO, legislation introduced by Baldwin to, among other goals, provide equal health insurance and retirement benefits for the same-sex domestic partners of federal employees. By late January, the bill had been reported favorably by the House Committee on Oversight and Government and had been ordered to be reported favorably by the Senate Homeland Security and Governmental Affairs Committee.

Cole told Metro Weekly that the DPBO ”has been discussed as part of a potential omnibus” bill to be passed before the Congress recesses, but he added that such talk was preliminary until the schedule is laid out for congressional action through the break prior to the November elections.

Jerilyn Goodman, Baldwin’s press secretary, told Metro Weekly in an e-mail, ”Congresswoman Baldwin remains hopeful it (DPBO) will be signed into law this year either as a stand-alone bill or as part of another piece of legislation.”

Among other LGBT equality bills, the Uniting American Families Act, which was at one point high on the radar screen of activists because of the hope for its inclusion in any immigration reform, has moved nearer the edge of the screen as the chances for immigration reform this year diminish. But Immigration Equality communications director Steve Ralls tells Metro Weekly via e-mail: ”We do believe that, when Congress decides to move a comprehensive package, UAFA will be part of that.”

The Student Non-Discrimination Act and Safe Schools Improvement Act, neither of which were likely candidates for stand-alone passage in 2010, are at best likely to re-appear in 2011 for inclusion in the reauthorization of the Elementary and Secondary Education Act. Neither bill, however, was featured in the Obama administration’s ”blueprint” for ESEA reauthorization published earlier this year.

When cut from health care reform after not being included in the Senate version of the bill, the Tax Equity for Health Plan Beneficiaries Act – which had not received much attention as a stand-alone bill prior to its inclusion in the House health care bill – moved off the radar map for likely consideration this year.

Finally, despite part of the Defense of Marriage Act being struck down as unconstitutional in federal court in Massachusetts, the Respect for Marriage Act — which would repeal DOMA – never appeared to stand a chance of passage this Congress. The legislation, introduced by Rep. Jerrold Nadler (D-N.Y.), had 113 co-sponsors as of Sept. 7, but never received a hearing in the House and no companion bill was introduced in the Senate.

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