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As the Wedge Turns: Is a Federal LGBT Civil Rights Act Actually Feasible in the Near Future?

04/14/2015 03:55 pm ET | Updated Feb 02, 2016

As striking as it sounds, we have come to a moment in this country where it is just possible to seriously consider making discrimination against gay and trans persons illegal on the national level. The Equality Act, which has been in the works, in one form or another, for years but never taken very seriously, even by its proponents, might actually be the answer to the wave of political unrest sweeping the country with respect to "religious refusal" bills. The process was begun with the introduction of a resolution this past Monday by Rep. André Carson (D-Indiana).

First some background. In response to the growing federal court support for marriage equality over the past year, and in light of the upcoming Supreme Court decisions in the Obergefell v. Hodges and DeBoer v. Snyder cases on the question of making same-sex marriage legal throughout the country, fundamentalist conservatives have been pushing their Republican legislators (who swept to victory during the off-year election in 2014) to pass sweeping, expansive state "religious liberty" laws (new versions of the federal Religious Freedom Restoration Act, or RFRA, of 1993) to protect God-fearing "Christians" from having to bake cakes for gay weddings, for example. Putting aside the fact that baking a cake, any cake, is not a sacrament, these bills are many things -- a simple panic response, a sincere effort by some to ensure that certain religious believers don't become too upset should the Supreme Court rule in favor of the gay community, and a weapon for others to create a climate of lawlessness and anarchy in response to the growing culture of equality.

This year alone we've seen action in Utah, Arkansas and Indiana, and as the backlash grows, particularly in response to Governor Mike Pence's political and business debacle in Indiana, it's becoming clear that the only solution that can save this country from outbreaks of religious anguish over the coming years is a national solution. Just as the Supreme Court often waits until there is a serious conflict in the lower courts that requires a national solution, so should Congress act when chaos comes to state legislatures. All the more so since we have a Republican Congress that mirrors the beliefs of the majority of legislators in those states. Things have happened so quickly that I haven't even had time to write about the "Utah compromise," and I rediscovered a piece I was going to publish around New Year's Day that also got swept away by events. Here is a part of it:

As we head into the new year with a Republican Congress, there is a growing need to understand where the LGBT equality movement stands, what can be done and what tools we have at our disposal. Sheryl Stolberg in The New York Times wrote about the introduction of an LGBT Equality Act to be modeled on the 1964 Civil Rights Act and introduced by Rep. David Cicilline (D-Rhode Island). This bill will undoubtedly be supported by all our national organizations, including Freedom to Work, HRC, NCTE, and the legal impact organizations; union and religious allies; and our colleagues at the Leadership Conference on Civil and Human Rights (LCCHR). It will be a bill with a religious exemption similar to the one from 1964.

The Stolberg story pointed out that the national advocates believe it will be at least a decade before such a bill passes into law, and that brought blowback from organizations such as GetEqual that consider such a statement a surrender to the current reality before the bill is even dropped. As a recent GetEqual email stated, "While some organizations are finally ready to talk about a comprehensive equality bill, they're already saying we're going to lose. Waiting a decade is not an option for our community."

No one said we're going to lose, only that those political realities and electoral consequences of the 2010 and 2014 off-year elections mean that we will likely not have a redistricted Democratic House and Senate before 2023. As the board chair of one of the few national organizations that has been lobbying Republicans, now in the majority in both the House and Senate, on behalf of anti-discrimination legislation, I know the road ahead is difficult -- not impossible (no one imagined we would have marriage equality in 37 states today, and probably in all 50 this coming summer), just difficult. It will take far more Republican support than that which has been pushing for marriage equality the past few years. After all, Congress does not support marriage equality; most of the progress has been made through the courts, not through legislatures, which is as it should be, since marriage inequality is a constitutional issue, and civil rights should not be put to a vote -- ever.

But Angela Peoples and Heather Cronk, the co-directors of GetEqual, said that waiting a decade is not an option. It isn't, and needn't be, because the tools exist today to bring about that equality through the courts. As more of our national organizations have recognized, the Macy v. Holder decision covers trans and gender-nonconforming persons under Title VII of the 1964 Civil Rights Act. There is no need to wait for the LGBT Equality Act. And with the exhortation of the Equal Employment Opportunity Commission (EEOC) to the gender-conforming gay community to use the law to push for greater equality, and with the upcoming "gay Macy" EEOC decision that will bring the rest of the gay community under the Title VII umbrella, there is even less reason to wait.

Chevy Chase of Saturday Night Live, in its first season 40 years ago, used to poke fun at President Gerald Ford, claiming he couldn't walk and chew gum at the same time. I believe our community, particularly with our recent history of legislative and legal success, can do two things at once. We can introduce an omnibus civil rights bill and begin the lobbying efforts among the Republicans, and we can take the time to educate our community regarding its rights and encourage them to use those rights in the workplace and throughout our lives.

Tico Almeida, the president of Freedom to Work, concurs:

We can't wait. All LGBT victims of workplace, housing or school discrimination should file their valid claims TODAY with the EEOC, HUD, Department of Education, etc. Do not wait for Congress! File your valid claims today. We should team with Legal Aid providers in all 50 states and plaintiff-side lawyers to make this happen. Let's do real work filing and winning LGBT complaints now.

Our legal impact organizations have been doing their part for many years now. I encourage you to support them, and if you have an employment, listen to EEOC Commissioner Chai Feldblum and bring it to your local EEOC office.

Stolberg ended her piece with this:

Senator Jeff Merkley, an Oregon Democrat, plans to introduce a broad nondiscrimination bill this spring. But asked when such a measure might pass, he said, "That's a hazy, crystal-ball question."

Well, that "hazy crystal ball" has very quickly become much clearer. With the support of the American business community, which is coming to the fore for equality as never before, we might just be able to accomplish what no one has thought possible: a federal LGBT Civil Rights Act produced by a Republican Congress -- because the most significant takeaway from the recent right-wing debacle in Indiana, where a majority of Hoosiers believes the contretemps has severely damaged the state's business future, is that what was once a wedge issue used by Republicans to divide Democrats is now a wedge issue used by Democrats to divide Republicans. Just look at former Secretary of State Hillary Clinton's announcement of her presidential candidacy.

Republicans have long prepared to reverse the momentum toward equality with RFRAs and preemption bills, but it now looks as if that strategy has not only failed but backfired. In Louisiana, where the state legislative session began this week, the extremist governor, Bobby Jindal, is being opposed by State Senate President John Alario. The governor said, "I absolutely intend to fight for the passage of this legislation -- and any other that seeks to preserve our most fundamental freedoms." The Senate president replied that "it puts Louisiana in a light of hatred and bigotry and discrimination."

The anti-marriage-equality crowd is posting (thank you!) all the major businesses that support equality. Non-LGBT commentators are matter-of-factly stating that we've won, and while that is only of symbolic value, it's still very significant.

As Bill Maher recently quipped, "Conservatives have to admit that they've lost the culture wars when they're reduced to demanding the right to not serve wedding cake to gay people."

Tico is still correct, and since he made that comment, a trans woman has won a Title VII case at the EEOC, and another has settled with their assistance.

So we're firing with both cylinders -- in the courts and the legislatures -- and if the Republicans would "let Jesus take the wheel" and stop using cake as a cultural wedge issue, we may even see some real action in Congress as GetEqual demands.

Update: This past Monday the Senate, controlled by Republicans, voted by voice vote to approve a motion to ask Senate budget conferees, currently negotiating with House members, to add language to the deal ensuring "all legally married same-sex spouses have equal access to the Social Security and veterans' benefits they have earned and receive equal treatment under the law pursuant to the Constitution."

Can pigs really fly?