A wide range of legislation to advance gay rights is on the agenda of the 110th Congress.
For more than a decade, the gay rights debate has focused on the thus-far-unpopular cause of same-sex marriage. That's largely been at the behest of Republicans eager to activate their conservative base at election time.
Congress hasn't enacted any legislation providing protection against sexual-orientation discrimination since the early '90s. But without much attention, several bills were introduced in recent years to address important concerns of the gay, lesbian, bisexual, transgendered and intergendered (GLBTI) community.
With new leadership in Congress and the bills being re-introduced earlier this year, some of the legislation appears poised for passage. The 2006 mid-term elections created "a gay-friendly Congress," in the words of Joe Solmonese, President of Human Rights Campaign.
Still, the GLBTI civil rights bills face uncertain futures. President George W. Bush has been resolute in his opposition to almost all gay rights legislation. A rundown of the legislation's status follows below.
The Matthew Shepard Act would allow for the federal prosecution of crimes motivated by anti-gay bias. The Employment Non-Discrimination Act (ENDA) would prohibit workplace discrimination based on sexual orientation. The Military Readiness Act would eliminate the military's "Don't Ask, Don't Tell" policy. The Uniting American Families Act would end anti-gay discrimination in immigration law.
Of these bills, the Matthew Shepard Act is the closest to passage. As a result, it’s garnered the most recent attention. Singer Cyndi Lauper has been touting the bill on her "True Colors" tour this year, while conservative clergy members have been running newspaper ads in opposition.
The organized opposition to the Matthew Shepard Act contends that the legislation would allow for the prosecution of "thought crimes" based on religious or philosophical opposition to same-sex conduct. Actually, the federal hate crimes law only applies to violent crime, and the American Civil Liberties Union concludes that the bill is constitutionally acceptable.
"Prosecuting violent hate crimes is critically important," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "This bill will also protect due process and the Constitution, especially our First Amendment rights to speak freely and associate with whom we’d like."
GLBTI rights advocates point out that violence motivated by bias against perceived sexual orientation or gender identity - which would be covered by the federal hate crimes law under this bill – is the third-most reported type of hate crime. So, they say, if a hate crimes law is going to be effective, it must apply to violence inspired by anti-gay basis.
The Matthew Shepard Act (S. 1105), introduced by Sen. Edward M. Kennedy (D-Mass.), will likely be heard by Senate Judiciary Committee later this summer. In May, the House passed the companion bill, 237-180.
The Judiciary Committee is chaired by Sen. Patrick Leahy (D-Vt.), a co-sponsor and long-time supporter of the bill (named in memory of the University of Wyoming student brutally murdered in 1998), which has been voted in every Congress since 1999. The legislation actually passed both houses in 2000 but didn’t reach President Clinton’s desk for signature because of a conference committee’s failure to resolve differences between the House and Senate versions of the legislation.
President Bush is expected to veto the bill. In a statement released in May, the White House contended that the legislation "raises constitutional concerns." In underscored text, the statement said: "If [the Matthew Shepard Act] were presented to the President, his senior advisors would recommend that he veto the bill.
The ENDA legislation – which was first introduced in 1994 - may also be sent to President Bush before he leaves office in January 2009. The bill would amend the Civil Rights Act of 1964 to prohibit discrimination based on sexual orientation in workplaces with 15 or more employees.
ENDA has yet to be voted on in either chamber. But its passage is a stated priority of both Speaker of the House Nancy Pelosi (D-Calif.) and Senate President Harry Reid (D-Nev.), who contend that basic fairness dictates that no worker should be fired solely on the basis of sexual orientation.
In the House, ENDA has more than 125 bipartisan co-sponsors. Yet, the legislation (H.R. 2015) must wind its way through four committees. In the Senate, Kennedy's Health, Education, Labor and Pensions has sole jurisdiction over the legislation. In 1996, ENDA was just a single vote shy of passage in the Senate.
In opposing ENDA, Religious Right organizations invoke the same strain of arguments that they use to fight other gay rights legislation – that is, that penalizing someone for their religiously based opposition to homosexual conduct is a violation of the religious freedom protected by the First Amendment. Concerned Women for America characterizes ENDA as "a ‘gay’ power grab that would severely curb constitutionally guaranteed ‘unalienable’ rights that Americans hold dear, including the freedoms of speech, religion and association."
ENDA is supported by many employers, in addition to traditional civil rights advocates. The membership of the pro-ENDA Business Coalition for Workplace Fairness includes more than 25 large corporations, such as Coca-Cola, General Mills, Harrah’s Entertainment, Marriott, and Nike.
General Mills released the following statement earlier this year: "We have been a consistent supporter of this important legislation, recognizing its power to protect and provide fairness to all American workers."
The Military Readiness Act (H.R. 1246) would establish a policy of nondiscrimination on the basis of sexual orientation. The bill would repeal the current "Don’t Ask, Don’t Tell" policy – drafted by Gen. Colin Powell in 1993 – which requires gay, lesbian, and bisexual service members to keep their sexual orientation secret and refrain from same-sex sexual conduct.
The current policy has been upheld in court, but has been criticized for causing the discharge of much-needed personnel (including Arabic translators).
Sgt. Eric Alva – the first U.S. troop injured in Iraq in 2003 – has joined the campaign to support the Military Readiness Act. In a blog post at Huffington Post earlier this year, Alva said: "I have an obligation to myself, my partner Darrell and gay, lesbian, bisexual and transgender Americans across the country to stand up and speak out for our deserved rights."
Although opinion polls reveal support for repealing "Don’t Ask, Don’t Tell" among both members of the public and rank-and-file service members, military leadership remains steadfastly opposed to the bill. Gen. Peter Pace, Chairman of the Joint Chiefs of Staff, told the Chicago Tribune earlier this year that homosexuality is immoral and, therefore, can’t be accepted in the military.
Other military leaders contend that service by openly gay soldiers would destroy troop morale and cohesion. Civil rights advocates note that the U.S. military frequently and successfully conducts joint missions with the British military, which has adopted a policy against anti-gay basis.
H.R. 1246 is pending before the House Armed Services Committee’s Subcommittee on Military Personnel. Chances of passage received a boost on June 14 when Rep. Susan A. Davis (D-Calif.) – an original co-sponsor of the bill – was appointed to chair the subcommittee.
Sen. Leahy was joined by Rep. Jerrold Nadler (D-N.Y.) in introducing the Uniting American Families Act (UAFA) in May to amend the Immigration and Nationality Act by permitting citizens and legal residents to sponsor their same-sex partners who are seeking to obtain permanent resident status. The companion bills (S. 1328 and H.R. 2221) have been separately referred to each chamber’s Judiciary Committee. The House Judiciary Committee is chaired by Rep. John Conyers, Jr. (D-Mich.), an original co-sponsor of UAFA.
Leahy has three co-sponsors in the Senate, while Nadler has 79 House co-sponsors. The pro-UAFA lobbying campaign is being led by New York-based Immigration Equality, with support from the ACLU, People for the American Way and Human Rights Campaign.
Human Rights Campaign notes that passage of UAFA would bring the U.S. up to par with at least 19 other nations who have adopted similar nondiscrimination policies for immigration. Probably because the legislation hasn’t progressed much yet, the organized opposition hasn’t been vocal yet, although concerns have been voiced about the potential for fraud.