Jan 12, 2007  |  By: LOU CHIBBARO J  | COMMENTS     

Editors’ note: This is the first in a two-part series looking at the history of ENDA and prospects for its passage in the new Congress.

Congress is expected to vote this year on legislation to outlaw employment discrimination against gays and transgender citizens in the private workplace, according to gay U.S. Reps. Barney Frank (D-Mass.) and Tammy Baldwin (D-Wisc.).

Such a vote would come 11 years after the Senate narrowly defeated the legislation, the Employment Non-Discrimination Act, or ENDA, in a development that activists and gay-supportive lawmakers say could provide lessons useful for this year’s effort on behalf of the bill.

On Sept. 10, 1996, the United States Senate came within one vote of passing a version of ENDA that did not include protection for transgender persons.

The vote of 50 to 49, with one absence, against ENDA was seen as a partial victory for gay civil rights because such legislation had never advanced that far since first being introduced in the 1970s.

Yet the near victory came at a high price. With the consent of national gay advocacy groups, Sen. Edward Kennedy (D-Mass.), the lead sponsor of ENDA, struck a deal with Senate Republican leaders that activists say they hope will never again be necessary.

GOP leaders said they would allow ENDA to come up for a vote only if Kennedy and his Democratic allies agreed to end a filibuster blocking a vote on the anti-gay Defense of Marriage Act. Known as DOMA, that legislation sought for the first time to define marriage under federal law as a union only between a man and a woman.

On the same day the Senate narrowly defeated ENDA, it passed DOMA by a vote of 85 to 14. The House also passed DOMA by a lopsided margin. Then-President Bill Clinton, in the midst of his 1996 re-election campaign, signed DOMA into law, drawing expressions of outrage from gay activists.

The disappointment over the close defeat of ENDA and the approval of DOMA was heightened by what ENDA supporters view as a quirk of fate that prevented the Senate from passing the gay rights measure. Sen. David Pryor (D-Ark.), who was expected to vote for ENDA, sent word that he had to rush to Arkansas to assist his son, who was undergoing cancer surgery, and could not be present in the Senate for the vote.

Had Pryor voted for ENDA, the outcome would have been a 50-50 tie. Then-Vice President Al Gore was set to enter the Senate chamber to break the tie by voting “yea” under his constitutional powers as president of the Senate, resulting in ENDA’s approval.

Political observers say it would have been uncertain whether the Republican-controlled House, under the leadership of Speaker Newt Gingrich, would have passed ENDA that year, or even brought it up for a vote. But gay rights advocates said the Senate passage of the bill might have provided momentum for House approval of the bill in a House-Senate conference committee or for advancing it sometime over the next few years.

Republican leaders of the House and Senate, using their majority status, blocked future votes on ENDA until May of 2001, when Democrats won back control of the Senate by a one-vote margin. Sen. James Jeffords (D-Vt.) dropped his Republican affiliation to become an independent, while agreeing to vote with the Democrats on selecting Senate leaders, forcing Republicans to relinquish control.

During the next year and a half, Democrats once again had the ability to bring up ENDA and other gay rights measures to the Senate floor for a vote. They did not do so, and gay activists and political observers have had mixed views on why the Democrats shunned another vote on ENDA in 2001 and 2002.

Elizabeth Birch, the then-executive director of Human Rights Campaign, the nation’s largest gay rights group, told the Blade that HRC and Senate Majority Leader Tom Daschle (D-S.D.) believed they could line up slightly more than 50 senators to vote for ENDA. But according to Birch, Daschle and other supportive Democrats expected a Republican-led filibuster, which would mean supporters had to line up at least 60 votes to end the filibuster and pass the bill. Rather than risk a defeat in a Senate floor vote on a filibuster, the better option appeared to be to hold off on a vote until 60 votes could be obtained, Birch said.

“It just didn’t seem possible to reach the 60-vote threshold,” Birch said, in recounting what happened several years later.

Birch disputed speculation by congressional insiders, who spoke on condition that they not be identified, that HRC ...