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Thursday, November 07, 2013

ENDA, Marriage, and March of History

The Senate today voted in favor of the Employment Non-Discrimination Act (ENDA) by a 64-32 vote.  The news reports are focusing -- quite rightly, I think -- on the sea change this vote (including the margin) reflects about Americans' attitudes toward gay rights, regardless of what happens to the bill in the House.  Today's vote has caused me to think about my earlier views about the long-term strategy of gay rights advocates, especially with regard to marriage.

I had always thought that ENDA should have been a higher priority than marriage for the gay rights movement -- not necessarily because of the intrinsic importance of employment non-discrimination (although I'm very sympathetic to that argument), but for tactical reasons.  In particular, I thought that employment was an easier sell than marriage, given the religious-emotional-expressive implications of marriage equality claims, and, by contrast, the intuitive sense that a person shouldn't lose her job because she possesses a characteristic that, whatever else Americans might think about it, they generally think is irrelevant to most employment issues.  In turn, I had always believed that enactment of ENDA would set the table for an eventual litigation and legislative strategy on marriage: it would both signal to courts that the country was coming to embrace sexual orientation equality and convince state and federal legislators that pro-gay rights votes were not electorally radioactive.

Today's vote provides a good opportunity to reassess.  I still think employment discrimination is an easier sell than marriage: if the Senate voted today on a constitutional amendment outlawing marriage discrimination I can't believe the vote would be 64-32.  But it seems clear that the success of gay rights marriage litigation has had its own pro-equality effects on the legislative process.  The early backlash after Massachusetts' 2003 decision -- especially the 2004 referenda banning same-sex marriage in a number of states -- appears to have crested.  In the very early aftermath of Windsor it seems like same-sex marriage is advancing with relatively little of the drama of the first states, and is doing so for the most part through the legislative process.  Presumably, the process will take a while -- and it may well slow down after the current tier of blue states act.  It will quite possibly require a Supreme Court decision to complete the process.  But the trend seems hard to deny.

It will be fascinating for historians to examine the role played by marriage litigation in advancing the gay rights agenda more generally.  It would be a little sour of me to say that the movement simply got lucky when the early backlash did not last.  Indeed, it may well be that the example of gays and lesbians litigating (with significant success) their claim to equal state recognition of their life unions makes all the other subjects of gay rights advocacy (military service, employment, etc.) seem easy and obvious by comparison.  I'm not sure how confident the marriage-first folks were that it was going to play out this way.  I assume -- I hope! -- that they gave it some thought.  But in the wake of the Senate vote today it seems hard to deny that the marriage-first strategy has had at least some role in advancing the broader gay rights agenda.

Posted by Bill Araiza on November 7, 2013 at 04:11 PM | Permalink

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But what if this turns out to only symbolic, since the House is not going to pass ENDA (if it does, then I take everything back). Might some more conservative Senators simply seen this as a costless vote? Of course, your point about the change in attitudes is still supported by Senators finding a benefit in a symbolic vote *in favor* of LGBT rights.

Posted by: Howard Wasserman | Nov 7, 2013 5:31:31 PM

I think that we should always be careful of interpreting trends while we are currently in the middle of the phenomenon that we are observing. As an advocate of same-sex rights, I think that there are still a number of reasons to be skeptical of the "same-sex marriage first" strategy--and the failure to pass ENDA is one of them. Howard Wasserman is correct--the House is not going to pass ENDA--so what does that really say about employing a strategy that calls for LGBT inclusion in such a conservative institution as marriage?

What happens when every "blue" state has same-sex marriage and all of the "red states don't? Why is there an assumption that the Supreme Court of the United States will trend in favor of blue states? What evidence do we have to support that? And won't the politics of that future moment weigh heavily on the Court's action as it seeks to maintain legitimacy?

Clearly the story is not over. There are more data points still left to be plotted. I think we would be wise to wait for more data instead of reading into a trend that may be solely limited to the issue of lobbying for marriage equality in blue states.

Posted by: Sheldon Bernard Lyke | Nov 7, 2013 7:22:59 PM

It's important to remember that a key component in ENDA's failure thus far has been the inclusion of transgender individuals in those protected by it. There was a very strong sense in 2007-2008, for instance, that an amended bill hat did not prohibit discrimination on the basis of being transgender would have passed easily.

Posted by: Charles Paul Hoffman | Nov 7, 2013 7:38:10 PM

Great comments, all of them, and yet more confirmation of how rich a community Prawfs is. Howard, I think you and I agree: even if a GOP Senator's vote is costless because the House won't take up ENDA, it's still remarkable that so many Republican Senators find a benefit in such a symbol. Sheldon, of course you're right -- the story isn't over. Still, the fact is that lobbying for same-sex marriage in blue states seems to be proceeding apace, something that a lot of people would have doubted as a prediction five or six years ago. As I said, the progress may come in fits and starts, with sizable delays as advocates get through the "easy" states and encounter more resistance. Moreover, in terms of the House and ENDA, my reading of the press is that Speaker Boehner is focusing on side-arguments like "job killing litigation" and such, rather than on head-on opposition. (Though I could be wrong about that, and would expect him to oppose it on religious-liberty grounds, though of course that just opens him up to an offer to talk about expanding the bill's religion-based exemptions.) I think his failure to object to it head-on is significant.

Finally, Charles, of course you're right too about trans protection. But that just makes it all the more remarkable that 64 senators voted in favor of a trans-inclusive bill this time around.

Posted by: Bill Araiza | Nov 7, 2013 7:59:38 PM

Bill, I agree these are rich comments, and a productive discussion. Although, I am not sure why the Speaker's refusal to object on religious-liberty grounds as opposed to using a rhetoric focusing on resources and jobs is particularly significant. Isn't that what happens in most resistance to progressive identity politics?

In many ways this is why some might argue that a movement focusing on same-sex marriage equality is particularly problematic. Because instead of focusing on a movement (like support for ENDA) that encourages both civil/political and social/economic rights--the marriage equality movement focuses on one particular conservative institution rooted in respectability. As a result, one can be a conservative in support of same-sex marriage, thereby expressing support for civil/political rights (i.e., equality), yet maintain arguments that employers should be free to make economic employment decisions which discriminate against individuals because of their sexuality and harm their economic interests.

So I am not sure that his failure to object to it head on is significant (in that this is a sign of imminent progress). It is significant because this is how the powerful have successfully resisted progressive movements.

Posted by: Sheldon Bernard Lyke | Nov 7, 2013 8:23:56 PM

ENDA was pushed in Congress since 1994, but especially when the Republicans controlled one or both houses, it was not possible to pass. Meanwhile, efforts were passed state by state to pass gay friendly legislation, including hate crime laws and anti-discrimination laws.

The end of DADT also was a leading effort and since it was a FEDERAL (and executive branch) matter, the military, and not something dealing with employers in 50 states, it had some strategic charm. The message sent also was important -- see desegregation of armed forces.

Many in the leadership of the movement were wary about making a NATIONAL push on marriage. But, unlike in Congress, there was room state by state to have success for civil unions and marriages. So, it made sense strategically, to do that too.

I'm somewhat unsure what more could have been done though think one can debate tactics to some degree. I was listening to the show Gay USA last night (available online) and a co-host added that he wasn't totally comfortable with ENDA, since it was so limited. He rather an amendment to the Civil Rights Act of 1964 for sexual orientation.

As to the first comment, one or more of the conservative senators also voted for things that did succeed -- like the end of DADT or the re-authorization of VAWA with additional protections for GLBT community members. Their actions put pressure on the House and suggest what is legitimate.

Posted by: Joe | Nov 8, 2013 11:43:00 AM

"Moreover, in terms of the House and ENDA, my reading of the press is that Speaker Boehner is focusing on side-arguments like "job killing litigation" and such, rather than on head-on opposition."

How it is a side-issue to discuss what effect a change in labor law would have on employment?

Posted by: Jr | Nov 8, 2013 6:00:08 PM

Sheldon: I'm very sympathetic to your focus on economic rights -- and not at all sympathetic to those who argue that with marriage equality the movement can throw a party, declare victory, and shut down. Joe: Thanks for the history -- as I've said, it's really an interesting one. Jr: My basic point, which I may not have made clear in the first post, is that in past years opposition to a law like ENDA would likely have been based on simple, explicit, opposition to the very idea of protected status based on sexual orientation. My read of it is that complaints about regulation being too intrusive or expensive reflect the difficulty some legislators may have voicing those sentiments today. I could easily be wrong -- though I'll note that the press made a big deal of the fact that only one Senator spoke in opposition to the bill. I think that reflects the same dynamic as what I mentioned about Speaker Boehner.

Posted by: Bill Araiza | Nov 8, 2013 6:47:06 PM

It amazes me when legal scholars (or even social scientists) stray from the descriptive to the prescriptive when it comes to social movements. First, the assumption that there is a single unified "gay rights movement" that has some sort of independent agency that would be responsive to your advice is problematic. In fact, there are multiple communities that are split along multiple axes - class, race, sex, regional, etc. Same sex marriage, until very recently, was never on the radar for the national groups for various reasons. Radical activists, queer theorists, NGLTF were opposed to marriage for ideological reasons - anti-assimilation, anti-capitalist, feminism, etc. For the more mainstream groups like HRC, Lamda Legal, etc. it was more an issue of prioritization of resources, particularly in the 80s when gay men were dying of AIDS, the religious right backlash was in full swing, and we were still rebuilding from Anita Bryant's orange juice for jesus tots crusade. Marriage was purely a grass roots effort where gay couples convinced local attorneys to take their cases with absolutely no support (and in many cases active resistance) from any national or organized group. No one, except maybe the plaintiffs, expected the favorable ruling in Hawaii.
The national groups freaked out over Hawaii and were resentful that they had to divert resources to fight the state constitutional amendment. So, they were even more resistant to marriage at that point. However, a few activists like Evan Wolfson broke ranks and started to focus on marriage. By that point, the backlash had begun with DOMA and mini-DOMAs so resources were diverted to fight those even though it was a losing battle. About a decade later, the same dynamic occurred in MA when a couple litigated and won, again without much national support. Unlike Hawaii, the decision was not overturned so we finally had a state with legal marriage, which could serve as empirical evidence to counter the slippery slope, man on dog, and sky is falling narratives of the religious right.
As for ENDA, what else would you have activists to do? Even though public opinion has been in favor of employment rights for over a decade or more and a version of it has been introduced every year since 1974 (thank you Bella Abzug!), it was always dead on arrival. The HRC lobbied heavily and spent lots of money but structural barriers in congress made it impossible to pass. We came close in the Senate in the 90s - just one vote short of 50 - but no luck. Of course, now 60 votes are required, which shows you how political norms have shifted since then.
My point is that social movements have a life of their own and there are internal and external dynamics that constrain any attempts impose a unified strategy. The debate in the academy over judicial vs political vs social strategies is interesting and ripe for analysis. However, activists (or just joe schmoe homo on the street) resent the often naive and smug second guessing by academics, which comes across as elitist and hypocritical. Specifically with regards to gay rights, whatever goodwill and cooperation there was between activists and academics in the 70s and 80s (and I honestly dont think there was much overlap then) turned to resentment in the 90s with the rise of Queer Theory and the postmodern turn in gay studies. Queer Theorists were more interested in deconstructing the very "essentialist" gay identity that made a social movement possible, which led to a political quietism that activists found baffling.
Sorry to rant....

Posted by: etseq | Nov 14, 2013 2:42:18 PM

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