October 23, 2007

Bush semi-threatens ENDA veto

Posted by: Chris

UPDATE: At the end of the post.

This week's ENDA news began with a warning from fringe anti-gay leader Peter LaBarbera of Americans For Truth that White House staffers not only were advising President Bush to sign the Employment Non-Discrimination Act, they were actually bragging about their involvement in crafting the bill's religious exemption.

The idea that White House staffers worked surreptitiously with openly gay Massachusetts Democrat Barney Frank to improve the language of historic gay (and possibly transgender) rights legislation was, well, about as credible as everything else that comes out of Peter LaBarbera's mouth. But that didn't stop gay Democrat blogger John Aravosis from falling for it, in a post that begins "Time for some crow," and brags that he predicted Bush would not veto ENDA.

The method to LaBarbera's madness, rather than speaking the "Truth" about anything, was to rally the conservative chorus to call on the White House to take a position on ENDA, since it was expected to come up for a House vote on Wednesday.  The White House responded today with a watered-down veto threat (of the same type it issued over the hate crime bill), that says, "The bill raises concerns on constitutional and policy grounds, and if H.R. 3685 were presented to the President, his senior advisors would recommend that he veto the bill."

First and foremost, it is politically very telling that the White House never mentions any opposition to the bill's primary purpose, protecting workers from discrimination based on sexual orientation. The president's advisers read the polls and know that the core justification for ENDA is embraced by wide majorities, including among Republicans.

(The veto threat also makes no mention of the transgender issue, which I've already heard some claim as proof it's not such political deadweight, but H.R. 3685 (Barney's compromise ENDA bill) doesn't include any mention of "gender identity," so there was no basis to raise the issue in the veto threat.)

Ironically, given LaBarbera's wild claim about White House collaboration on ENDA's religious exemption, the veto "threat" cites that very exemption as the bill's primary problem:

H.R. 3685 is inconsistent with the right to the free exercise of religion as codified by Congress in the Religious Freedom Restoration Act (RFRA).  The Act prohibits the Federal Government from substantially burdening the free exercise of religion except for compelling reasons, and then only in the least restrictive manner possible.  H.R. 3685 does not meet this standard.  For instance, schools that are owned by or directed toward a particular religion are exempted by the bill; but those that emphasize religious principles broadly will find their religious liberties burdened by H.R. 3685.

The claim is overwrought, given that Barney's revised compromise ENDA actually broadened the religious exemption to include those schools "owned by or directed toward a particular religion."  To also include schools that "emphasize religious principles broadly" would lead to litigation over the importance of religion in a school's operation.  That's exactly the sort of judicial "entanglement" in religion that courts have made clear for decades that the First Amendment does not allow.

The veto threat lists three other justifications:

1. "H.R. 3685’s authorization of Federal civil damage actions against State  entities, which may violate States’ immunity under the Eleventh Amendment to the U.S. Constitution." 
   Since when has this White House been concerned about whether a statute "may violate" the Constitution? Regardless, this provision even if unconstitutional is not central to the bill and would be struck down by the courts, leaving the rest operational.
2. "The bill turns on imprecise and subjective terms that would make interpretation, compliance, and enforcement extremely difficult.  For instance, the bill establishes liability for acting on 'perceived' sexual orientation, or 'association' with individuals of a particular sexual orientation." 
   State gay rights bills have long include "perceived" sexual orientation, which simply closes a loophole that would allow employers to force fired workers from proving they are, in fact, gay, lesbian or bisexual (or straight in cases of anti-hetero bias).  I'm aware of no bruising litigation over the meaning of that term, much less "association," which is included in dozens of statutes.
3. "Provisions of this bill purport to give Federal statutory significance to same-sex marriage rights under State law. These provisions conflict with the Defense of Marriage Act, which defines marriage as the legal union between one man and one woman.  The Administration strongly opposes any attempt to weaken this law, which is vital to defending the sanctity of marriage." 
   Silliness.  The bill's only mention of marriage prevents employers in states where gays cannot marry from using "eligibility to marry" as a pretext for anti-gay discrimination.  To be honest, I have never understood the need for this particular provision, since even gays are "eligible to marry" so long as their spouse is of the opposite sex.  If I were Barney, I would ditch it.

Hours after the veto threat, House Democratic leaders said they were postponing an ENDA vote, not because of the White House but either because they were still counting up support for Tammy Baldwin's transgender amendment or because Speaker Nancy Pelosi puts a higher priority on voting for a health insurance bill the president has actually already vetoed.

Either way, the delay is a reminder that Democratic Party leaders have a limited attention span on our issues, and now that Pelosi has taken home her HRC profiles in courage award, she's on to the next constituency group.

I continue to believe there is a strong likelihood the president will not veto either the (trans-inclusive) hate crimes bill or ENDA (so long as it's not trans-inclusive), should either reach his desk -- whether solo or attached to some larger piece of legislation.  The veto threat was an easy political move to satisfy conservative rabble rousers, and in ENDA's case seemed a direct response to the LaBarbera rally cry.

Of course, the United ENDA trans-first'ers still have a chance to beat President Bush's advisers to the punch, and derail historic gay rights legislation because it doesn't also expressly protect transsexuals, cross-dressers and transvestites as well.  If they succeed, whether in the House or by scaring the Senate away from the legislation, the president will owe them a debt of gratitude.

UPDATE:  Dale Carpenter, who has weighed in before with insightful legal analysis of the transg-ENDA flap, offers a more thorough legal analysis of the excuses used by the White House to threaten a veto of the the compromise ENDA.

For a complete news summary on ENDA, click or bookmark: gaynewswatch.com/enda

For a complete news summary on transgender rights, click or bookmark: gaynewswatch.com/transgender

For a complete news summary on gay rights, click or bookmark: gaynewswatch.com/legalcivilrights

Tags: Defense of Marriage Act, Employment Non-Discrimination Act, ENDA veto, gay marriage, President Bush, religious freedom, transgender rights