The fight over a broad religious exemption in the Employment Nondiscrimination Act is all but over. The question is whether the House minority leader Nancy Pelosi, D-San Francisco will attempt to force the bill to a vote in the House this year. Pelosi has said all options are on the table.
The Senate Wednesday approved on a voice vote a Republican “anti-retaliation” amendment that reinforces the religious exemption. Sponsored by Sens. Rob Portman (R-OH) and Kelly Ayotte (R-NH), both of whom broke party ranks to end a GOP filibuster on the bill Monday, would ensure that religious organizations that would legally discriminate against gays, lesbians, bisexuals and transgendered people under the religious exemption cannot be sued for discrimination or denied government grants or contracts they would otherwise qualify for.
GetEqual, an LGBT group, and the American Civil Liberties Union, oppose the bill’s religious exemption as overly broad. Other gay rights groups such at the Human Rights Campaign and Freedom to Work support the exemption as necessary to Senate passage.
Ayotte and Portman were under pressure from Sen. Susan Collin (R-ME) to vote to end the filibuster, and it seems likely that passage of their amendment would secure their votes on final passage later this week. Sen. Patrick Toomey (R-PA) is another question.
Toomey also broke ranks to bring the bill to the floor, but he has proposed an amendment, strongly opposed by all the gay rights groups, that would add a “conscience clause” to ENDA that would allow anyone, including corporations, to discriminate. “Private enterprises that are not religiously affiliated would be able to exempt themselves,” said Heather Cronk, co-director of GetEqual. HRC also opposes the amemdment. HRC spokesman Fred Sainz said in an email that the group thought Portman’s amendment “was unnecessary, but we did not oppose it.” But Toomey’s amendment, he said, is far too broad.
The amendment is not expected to pass. After the 61-30 vote Monday to end the filibuster, including seven Republicans, passage is likely, even without Toomey. Sen. Claire McCaskill (D-MO) is an ENDA co-sponsor who skipped the vote to attend her mother’s funeral. Sen. Lisa Murkowski (R-AK), another co-sponsor, also missed the vote.
House Speaker John Boehner (R-OH) has promised to block the bill in the House, claiming it would encourage frivolous lawsuits. Pelosi, who noted that Boehner spent millions of taxpayer funds on a legal defense of the Defense of Marriage Act, has the option of using a “discharge petition” to force the bill to the floor, but such a move is considered extreme and would be attempted only with the certainty of enough GOP support to succeed. Senate majority leader Harry Reid (D-NV) indicated Wednesday he thought such an effort would fail, Cronk said.
Pelosi has indicated that gay rights groups need to generate a bigger public groundswell for ENDA to force Republicans to allow a vote, as happened earlier this year with the Violence Against Women Act.
Cronk said Democrats may be looking to use ENDA as a fundraising tool showing GOP intransigence during the 2014 election year.
Sen. Dianne Feinstein (D-CA) argued for passage on the Senate floor Wednesday, citing a 93-year-old San Francisco constituent and gay man who told her that “even in a liberal state like California, as a gay man I never felt equal to my colleagues.” A former bank employee, the man told her, “I was afraid to bring my husband to company parties, and I never wanted to seem ‘too flamboyant’ to my supervisors. It seems so ridiculous when I think back to it, but people don’t understand that this type of discrimination is subtle.”