The 61-30 procedural vote does not necessarily predict the final outcome, expected later this week. But statements of support from Republicans ensured that the bill known as the Employment Non-Discrimination Act could attract the necessary 60 votes to overcome any additional procedural hurdles.
“This is a momentous day,” Sen. Tom Harkin (D-Iowa) said as floor debate began. A nation that has stood behind the belief that people should be judged on their individual worth, not the color of their skin, race or religion, he said, should also bar discrimination based on “who you love.”
Even if the Senate passes the legislation, however, it faces uncertain prospects in the Republican-led House. A spokesman for House Speaker John A. Boehner (R-Ohio) reiterated Monday that the measure would open small businesses to “frivolous litigation” and hurt the economy.
Congress hasn’t passed major gay rights legislation since 2010, when it voted to end the “don’t ask, don’t tell” policy that barred gays from openly serving in the military. But progress in lesbian, gay, bisexual and transgender rights has come elsewhere.
Last summer, the U.S. Supreme Court struck down the federal Defense of Marriage Act and cleared the way for gay marriages in California. Same-sex marriage is legal now in 14 states and the District of Columbia.
The Senate bill would prohibit public and private employers, employment agencies and labor unions from using sexual orientation or gender identity as the basis for decisions about employment, promotion or compensation. Federal law extends such protections based on race, religion, gender, national origin, age or disability. Twenty-one states and the District of Columbia also protect sexual orientation; fewer do so for gender identity.
That “patchwork of state laws excludes tens of millions of Americans from basic protections against discrimination,” Senate Majority Leader Harry Reid (D-Nev.) said. “It simply is not good enough.”
A similar bill failed in the Senate in 1996 and had not been taken up on the floor since. In 2007, the then-Democratic-controlled House passed a version that did not include transgender individuals, but the Senate did not take it up.
“I’m dismayed that so many years have gone by, more than a decade, and this bill still has not become law,” said Sen. Susan Collins (R-Maine), a cosponsor.
Democrats secured the backing of everyone in the party’s 55-member caucus last week when Sens. Joe Manchin III (D-W.Va.) and Mark Pryor (D-Ark.) announced their support. Newly sworn-in Democrat Cory Booker of New Jersey said this would be the first bill he cosponsored. Dean Heller (R-Nev.) became the fifth Republican senator to publicly support the bill Monday, calling it “the right thing to do.”
Seven Republicans ultimately voted with 54 Democrats to advance the measure. Two other backers — Republican Lisa Murkowski of Alaska and Democrat Claire McCaskill of Missouri — were en route to Washington and missed the vote.
Even as the voting continued on the floor, additional Republican support was secured with intense negotiations in the Senate cloakroom. Sen. Jeff Merkley (D-Ore.), the bill’s chief sponsor, said he would support an amendment sought by Sens. Kelly Ayotte (R-N.H.) and Rob Portman (R-Ohio) that would, among other changes, effectively exempt certain faith-based organizations from the bill, calling it a “reasonable adjustment.”
Sen. Mark Steven Kirk (R-Ill.), who had not delivered a speech on the Senate floor since suffering a major stroke in January 2012, did so Monday in support of the measure. He said it was “particularly appropriate for an Illinois Republican to speak on behalf of this measure,” in the tradition of former Sen. Everett Dirksen and Abraham Lincoln, “men who gave us the 1964 Civil Rights Act and the 13th Amendment to the Constitution.”
Amid predictions that the measure would die in the House, supporters said they would marshal public pressure to force action. A spokesman for House Minority Leader Nancy Pelosi (D-San Francisco) said “all options will be on the table in order to advance this critical legislation in the House.”
“The speaker, of all people, should certainly know what it’s like to go to work every day afraid of being fired,” Human Rights Campaign President Chad Griffin said in a statement. “Instead of letting the far right trample him again, it’s time for Speaker Boehner to stand with the majority of everyday Republican voters and support” the bill.
President Obama, who called for equal treatment of gays and lesbians in his inaugural address in January, reaffirmed his support Sunday and noted that a majority of Fortune 500 companies already have nondiscrimination policies for LGBT employees.
“Millions of LGBT Americans go to work every day fearing that, without any warning, they could lose their jobs — not because of anything they’ve done, but simply because of who they are,” he wrote for the Huffington Post. “It’s offensive. It’s wrong. And it needs to stop, because in the United States of America, who you are and who you love should never be a fireable offense.”
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