Wednesday, July 10, in a historic first, the U.S. Senate Committee on Health, Education, Labor and Pensions passed, in bipartisan fashion, the Employment Non-Discrimination Act (ENDA) in a 15-7 vote. It happened so quickly that many in the audience who were buried in their screens missed it, and committee chairman Sen. Tom Harkin (D-Iowa) even apologized for the speed of the process. "After such a long wait, such a quick vote," I paraphrase the senator.
This was historic because it was the first time a Senate committee had passed an LGBT employment act, and 17 years had passed since the Senate as a whole had voted on a form of ENDA. That was in 1996, just 10 days after the passage of the Defense of Marriage Act (DOMA). There also may be something linking the cycles of anti-gay laws passed and then repealed 17 years later ("don't ask, don't tell," or DADT, and DOMA being the others) with the life cycle of Washington's 17-year periodical bugs, the cicadas, though I know not what.
What is particularly noteworthy, however, is the fact that three Republicans voted for the bill. Sen. Orrin Hatch (R-Utah) said:
I appreciate that the authors of the bill were willing to include a robust religious exemption in this bill. I voted for it because it prohibits discrimination that should not occur in the workplace, it protects the rights of religious entities, and minimizes legal burdens on employers.
Sen. Lisa Murkowski (R-Alaska) added:
I was pleased to be able to support the Employee Non-Discrimination Act passing out of committee today. I am a strong believer that individuals should be judged on whether they can do the job, not their sexual orientation -- and I appreciate the hundreds of Alaskans who shared their thoughts with me and my staff as we considered this bill.
Like any proposed legislation that affects employers and employees alike, the appropriate balance must be struck between protecting employees against discrimination in the workplace while also making sure employers are not unduly burdened with compliance costs -- as well as striking the appropriate balance among legal remedies and redress. Provisions in this bill attempt to address employers' needs to run efficiently and reduce compliance costs, specifically prohibit preferential treatment and quotas, do not permit disparate impact lawsuits, and provide a religious exemption. Improvements might be in order in the form of floor amendments, but discrimination should never be tolerated in the workplace.
Finally, the bill's co-sponsor, Sen. Mark Kirk (R-Ill.), spoke from his heart when the ranking Republican, Sen. Lamar Alexander (R-Tenn.), deferred to him (a very unusual occurrence, since Alexander voted "no," though very gently) by saying, "I want to commend Sen. [Mark] Kirk for his leadership on this issue over the years, and thank him for his hard work on this bill, and give him now the opportunity to make the opening statement." Senator Kirk said:
In Illinois, we all measure ourselves against the career of Abraham Lincoln and think about the legacy that that means. I would say that I measure myself against Everett Dirksen and his support for the 1964 Civil Rights Act as Republican leadership as the best moment in his career. [With] this legislation, I'm very proud to do it in the tradition of Illinois' Dirksen and Lincoln.
But while these were very prominent Republicans speaking out passionately for full LGBT equality, it wasn't the first time in recent memory. DADT was repealed in 2010 with eight Republican votes (Sen. Hatch did not vote on that bill); it wouldn't have happened without them. A year earlier the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act passed as an amendment to the National Defense Authorization Act for Fiscal Year 2010 with five Republican votes; again, it wouldn't have passed without at least one Republican.
Currently three Republicans have already come out for marriage equality (Kirk, Murkowski and Sen. Rob Portman of Ohio), and most strikingly, two relatively unknown Republicans, EEOC commissioners Constance Barker and Victoria Lipnic, were instrumental in the Macy decision. A unanimous vote of the five-member commission is required for the action to be precedential, so each Republican vote was crucial in the Macy decision, which expanded Title VII's reach to include the trans and gender-nonconforming community.
While it is far more difficult for progressives to bring conservatives on board than other progressives (though not always), there are a few advantages to the effort. Most importantly, bipartisan votes help solidify the impact of the result, making it significantly immune to attack by supporters of the minority (e.g., Republican attacks on the Affordable Care Act). It's an American decision rather than a Democratic or Republican one. And even long after people forget the actual votes and the profiles in courage to get a bill passed, bipartisan products carry with them a lingering aura of good faith.
A bipartisan outcome changes the thinking about a law, as we've witnessed surrounding marriage equality, which has been received as a conservative value in some spheres, and a libertarian one in others. The fact is that it is both of those, as well as progressive. The same clearly holds true for basic civil rights protections, as we heard from the Republican senators on their ENDA committee votes. And it doesn't hurt for liberals to hear and appreciate the conservative and libertarian cases, just as it shouldn't hurt Republicans to understand the progressive and liberal takes on issues. There is often more overlap than we are willing to admit.
Finally, it's refreshing to deal with those from the other camp, because there are clear differences that can be broached with effort, education and faith as long as there is a willingness to be open. Within one's own caucus it's easy to get mired in relatively trivial discrepancies, leading to what Freud called the "narcissism of small difference." It can be quite enervating to get bogged down with issues that are trivial compared with the main prize, which is promoting cultural change toward a more tolerant, welcoming and affirming America.