WASHINGTON – Moments after the Senate passed a historic measure to outlaw workplace discrimination against gays, activists turned their attention toward President Barack Obama and a long-sought executive order that would have the same effect, though on a much smaller scale.
“We call on President Obama to send a clear message in support of workplace fairness by signing this executive order,” said Chad Griffin, president of the gay advocacy group Human Rights Campaign.
The quick shift underscores the reality that the bill is unlikely to ever reach Obama’s desk. While the anti-discrimination measure passed comfortably Thursday in the Democratic-controlled Senate, it may never get a vote in the GOP-led House because of Speaker John Boehner’s opposition.
But gay rights groups and the White House appear to have differing views of the opportunities presented by that political landscape.
While activists take Boehner’s opposition as a clear sign the president should act on his own to extend workplace protections to gays and transgender people, White House officials see an opportunity to cast Republicans as outside the mainstream on gay rights, an issue where public opinion has rapidly shifted.
“We will use this as an opportunity to ramp up pressure on Republicans to act on the bipartisan legislation that was passed in the Senate,” White House spokesman Josh Earnest said. “We welcome the opportunity to have a public debate with Republicans on this issue.”
The Employment Non-Discrimination Act – known as ENDA – would bar employers with 15 or more workers from using a person’s sexual orientation or gender identity as the basis for making employment decisions, including hiring, firing, compensation or promotion. Religious institutions and the military would be exempted.
Sixty-four senators, including 10 Republicans, voted Thursday for ENDA, the first major gay rights bill since Congress repealed the ban on gays in the military three years ago. Outside conservative groups have cast the bill as anti-family, while Boehner argues it is certain to create costly, frivolous lawsuits for businesses.
If the president signs an executive order, it would contain the same protections as the Senate bill, but they would apply only to people working for federal contractors. That constitutes about 20 percent of the nation’s workforce.
Obama backed an executive order along those lines when he was running for president in 2008 but has deferred to Congress since taking office, disappointing many of his supporters.
“It is imperative for President Obama to lead by example,” the gay rights group GetEQUAL said in a statement after the Senate vote.
In recent days, White House officials have not directly ruled out Obama’s signing an executive order, but they have tamped down expectations that he would take such action quickly, before knowing for sure how Boehner and House Republicans plan to respond to Senate passage of ENDA. Obama aides also say they remain hopeful that sustained pressure might push Boehner to allow a vote on the measure, even if the majority of Republicans might vote against it.
Boehner did just that earlier this year when he allowed a vote on reauthorizing the Violence Against Women Act, which some of his members opposed because it included new protections for gays and lesbians.
Obama’s advisers say they’re also relying on their experience in 2010, when Congress repealed the “don’t ask, don’t tell” ban on gays serving openly in the military. The president came under pressure at the time to end the ban through executive actions, but he insisted that an act of Congress would be more sweeping and have an enduring impact.
Current federal law prohibits discrimination on the basis of sex, race and national origin. But it doesn’t stop an employer from firing or refusing to hire workers because they are gay, lesbian, bisexual or transgender.
Past presidents have used executive orders applying to federal contractors to extend discrimination protections. In 1965, Lyndon Johnson signed an executive order that barred discrimination on the basis of race, religion and national origin by federal contractors. Two years later, Johnson added to the order a prohibition against discrimination on the basis of sex.
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