White House advisers announced this week they would recommend President Bush veto ENDA if Congress sends the bill to his desk. (Photo by Evan Vucci/AP)
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LOU CHIBBARO J
Friday, October 26, 2007
Democratic leaders postponed a vote this week in the House of Representatives on the Employment Non-Discrimination Act (ENDA).
The announcement came several hours after the White House issued a statement saying that senior advisers have recommended that President Bush veto the gay rights measure if Congress were to pass it.
In a separate development, a spokesperson for Sen. Edward Kennedy (D-Mass.) told the Blade Wednesday that Kennedy intends to introduce ENDA in the Senate next week, when he returns to Washington after undergoing surgery in Boston to clear a blockage in a neck artery.
The spokesperson, Melissa Wagoner, did not say whether Kennedy’s version of ENDA would include transgender protections. Some gay and transgender activists have speculated that the Senate would not vote on ENDA this year.
Kennedy’s decision to introduce the measure at a time when ENDA supporters are engaged in a dispute over whether to include a trans provision in the House version of the bill suggests that Kennedy may be ready to reveal his position on the transgender question.
Meanwhile, ENDA supporters were quick to say the postponement of the House vote had nothing to do with the White House veto threat, but reports surfaced giving conflicting reasons why House Democratic leaders chose to put off a vote on the bill at least one week.
Drew Hammill, press secretary for Speaker of the House Nancy Pelosi (D-Calif.), issued a statement saying House Democratic leaders were working to “develop an accurate count” of the number of House members willing to vote for an amendment that would restore transgender protections to ENDA.
“We do not anticipate that this process can be completed this week,” Hammill said in his statement.
Hammill was referring to a decision by gay Rep. Tammy Baldwin (D-Wisc.), made with Pelosi’s consent, to introduce an amendment restoring a trans provision to the bill that House Democratic leaders took out. The leadership said it chose to move ahead with a gay-only version of the bill after it determined there were not enough votes to pass a trans-inclusive bill.
Democratic strategists have said voting on the trans provision separately in the form of an amendment would allow supporters to move ahead with a gay-only bill if the Baldwin amendment is defeated.
As the Blade went to press, leaders of a coalition of gay and transgender advocacy groups that oppose a gay-only version of the bill held an unannounced, closed meeting in Washington late Wednesday to develop a strategy for ENDA if it is determined that the Baldwin amendment could not pass, according to a source familiar with the meeting.
Gay Rep. Barney Frank (D-Mass.) said he learned that a group of gay and transgender leaders spoke with Baldwin on Monday in a telephone conference call, with some informing her that she should consider withdrawing her amendment if she determines it lacks the votes to pass.
Neither Baldwin nor a spokesperson for her office could be reached by press time.
Frank said he was concerned that momentum might be growing among House Democrats for scrapping plans for a vote on ENDA until 2009, when some activists believe chances for passing a trans-inclusive bill would improve.
“I think that would be a terrible mistake,” Frank said.
Two other sources said Pelosi might have postponed a vote on ENDA this week to clear the House agenda for an immediate vote on a new version of legislation to expand the State Children’s Health Insurance Program (SCHIP). President Bush vetoed the SCHIP bill, and supporters last week fell short of lining up enough votes to override the president’s veto.
“We’re hearing they plan to bring up SCHIP this week and this will displace ENDA and other bills,” said one source familiar with ENDA, who asked not to be identified.
Hammill said Democratic leaders were considering bringing up SCHIP this week but that was not the “determining factor” for the timing of a vote on ENDA.
“The leadership is working closely with Congresswoman Baldwin to develop an accurate count of the members supporting her amendment and will then make decisions for scheduling the bill for the House floor,” Hammill said.
CongressNow, an online publication, reported that the bill was likely to reach the House floor for a vote next week.
But other sources familiar with ENDA said privately that House Democratic leaders might have postponed an ENDA vote because they were worried that a growing number of gay-supportive Democrats in the House were considering voting against a gay-only version of the bill.
Four Democrats did just that on Oct. 18, when the House Committee on Education & Labor voted by a narrow margin to approve a gay-only version of ENDA and reported it to the full House for action.
Committee Chair George Miller (D-Calif.) and his chief lieutenant, Rep. Robert Andrews (D-N.J.), were able to secure approval of the bill only after four Republicans joined Democrats in voting for the measure.
The committee voted 27 to 21 to approve ENDA, with 23 Democrats and four Republicans voting for it.
Seventeen Republicans and the four gay-supportive Democrats, including presidential candidate Dennis Kucinich (D-Ohio), voted against the bill.
If the gay-supportive Republicans voting for the measure had voted the other way, it would have lost by a vote of 23 to 25.
Rep. Dennis Kucinich voted against the gay-only version of ENDA in committee but is undecided on how to vote if that bill comes to the floor. (Photo by Kevin Wolf/AP) |
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The Democrats voting against the bill, in addition to Kucinich, were Reps. Linda Sanchez (Calif.), Yvette Clark (N.Y.) and Rush Holt (N.J.).
The four Republicans who voted for the bill were Reps. Michael Castle (Del.), Judy Biggert (Ill.), Todd Platts (Pa.) and Randy Kuhl (N.Y.).
The decision by Kucinich and his three Democratic colleagues to vote against the gay-only version of ENDA in committee came at a time when a coalition of more than 300 national and state gay and transgender advocacy groups is calling on Congress to oppose any version of the bill that excludes transgender protections.
Kucinich told the Blade he was undecided over whether to vote against a gay-only version of the bill on the House floor if the Baldwin amendment loses.
But his and the other three Democrats’ decision to vote “no” in committee raises the question of whether other gay-supportive Democrats would take the unusual step of joining House GOP opponents of ENDA by voting no and defeating the bill when it reaches the House floor.
Reps. Jerrold Nadler and Anthony Weiner, both Democrats from New York City who have strong records of support on gay rights, have since announced that they, too, would vote against a gay-only version of ENDA.
“I don’t know what’s going to happen [with a gay-only bill],” said Mara Keisling, executive director of the National Center for Transgender Equality, which has joined the United ENDA Coalition in urging lawmakers to vote against a gay-only version of the bill.
“We are getting a lot of calls from congressional offices saying they are considering voting no or they are agonizing over what they should do,” Keisling said.
Christopher Anders, an attorney and lobbyist for the American Civil Liberties Union’s Lesbian & Gay Rights Project, said he does not think a large enough number of pro-gay Democrats will vote against a gay-only version of the bill to cause its defeat.
“We know a sizable number of Republicans are planning to vote for the bill,” he said. “It appears that there will be enough Republicans to offset the Democrats who might vote no over the transgender issue.”
Chris Shields, a spokesperson for Rep. Lynn Woolsey (D-Calif.), said Woolsey is among the large contingent of progressive, gay-supportive Democrats who plan to vote for whichever version of ENDA reaches the House floor.
“She is very strongly in favor of the Baldwin amendment,” Shields said. “She will do all she can to help pass it. But we have not heard of any significant defection of Democrats.”
Kucinich told the Blade he would aggressively campaign for the Baldwin amendment but he, too, wasn’t aware of a groundswell of defections among Democrats if the Baldwin amendment doesn’t pass.
“I’ve talked to people in the transgender community who urged me to vote against the bill, which I did in committee, but who also said they didn’t want the entire Employment Non-Discrimination Act to go down once we made our effort in committee,” Kucinich said.
If Congress passes ENDA, Bush’s senior advisers would recommend that he veto the bill, according to a statement issued Tuesday by the White House.
The statement is considered by White House observers to be less forceful and definitive than other veto threats, in which the White House has said the president had already decided to veto a particular bill.
The one-page statement, among other things, says provisions in ENDA “purport to give federal statutory significance to same-sex marriage rights under state law,” a development, according to the White House, that would conflict with the 1996 Defense of Marriage Act.
The statement represents the first time the White House has released an official position on the gay rights measure, which calls for banning employment discrimination based on sexual orientation.
Supporters of the bill have said its marriage-related provision is limited to banning employment discrimination based on marital status in states where same-sex couples cannot legally marry. Under the bill’s marriage provision, employers could not require that a person be married or be eligible to marry as a condition of employment except in Massachusetts, where same-sex couples can legally marry.
ENDA’s marriage-related provision has mostly been overshadowed by a controversy within the gay and transgender community over whether the bill should include protection for transgender persons. House Democratic leaders withdrew an earlier version of the bill that included trans protections after determining there were not enough votes to pass it.
Pelosi last week gave her consent to a request by Baldwin to introduce an amendment on the House floor to restore trans protections to the bill, known as H.R. 3685. The Baldwin amendment would open the way for an unprecedented, up or down vote on transgender rights in the U.S. Congress.
The White House statement makes no mention of the transgender issue.
“The bill raises concerns on constitutional and policy grounds, and if H.R. 3685 were presented to the president, his senior advisers would recommend that he veto the bill,” the statement says.
Most gay activists and supporters of ENDA on Capitol Hill have said they expected the president to veto ENDA regardless of whether it included transgender protections.
“H.R. 3685 is inconsistent with the right to the free exercise of religion as codified by Congress in the Religious Freedom Restoration Act (RFRA),” the White House statement on ENDA says.
It notes that the Religious Freedom Restoration Act bars the federal government from “substantially burdening the free exercise of religion except for compelling reasons” and only in the “least restrictive” means possible.
“H.R. 3685 does not meet this standard,” the statement says. “For instance, schools that are owned by or directed toward a particular religion are exempted by the bill;” the statement says, “but those that emphasize religious principles broadly will find their religious liberties burdened by H.R. 3685.”
The statement says ENDA’s authorization of federal civil damages against states or state entities over employment discrimination “may violate states’ immunity under the 11th Amendment to the U.S. Constitution.”
Similar to criticism raised by opponents in Congress, the White House statement says language in the bill barring employment discrimination based on someone’s “perceived” sexual orientation is “imprecise” and would “encourage burdensome litigation.”
The White House statement says ENDA’s marriage-related provision would conflict with the 1996 Defense of Marriage Act, or DOMA, which defines marriage as a union only between one man and one woman under federal law.
“The administration strongly opposes any attempt to weaken this law, which is vital to defending the sanctity of marriage,” the statement says.
Supporters have said many state and local laws ban discrimination based on marital status and that the ENDA provision would not conflict with DOMA.
The Human Rights Campaign, the national gay advocacy group that has led lobbying efforts for ENDA, released a four-page statement from its attorneys disputing the White House rationale for a veto.
Other groups praised Bush for the announcement. Concerned Women for America, a conservative religious political group, said in a statement Tuesday that, “this dangerous bill would pit the government directly against the free exercise of religion …,” a claim ENDA supporters have vehemently denied.
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