With the Supreme Court having made its decisions on DOMA and marriage equality, the spotlight is again on what President Obama can still do for the LGBT community. Dead center in the beam is the Employment Non-Discrimination Act (ENDA), which would prevent employers from firing workers for their sexual orientation or gender identity.
While there are high hopes that ENDA might pass in the Senate this term, it is unlikely to get a vote, much less pass, in the not-so-fair-minded House of Representatives. Instead, many LGBT activists are pressing President Obama to use executive authority to enforce the rules of ENDA on government contractors and subcontractors. Such an act would help many, but history suggests it won’t happen until 2014.
In SCOTUS-speak, the relevant precedent is the 111th Congress (2009-2010). President Obama had promised to repeal Don’t Ask Don’t Tell (DADT), but resisted pleas to end DADT by executive order; pleas similar to those being made regarding ENDA. During the lame duck session of 2010, both the DREAM Act and the repeal of DADT had passed the House, but lingered in the Senate. With reporting that moderates could pass only one, DADT was repealed, and the DREAM Act died.
The 112th Congress similarly faces immigration legislation, in the form of the Border Security, Economic Opportunity and Immigration Modernization Act (aka the “Gang of Eight” bill), and LGBT legislation, in the form of ENDA. This time, the administrative push is clearly behind immigration. If only one can get done, which is likely, expect ENDA to die in Congress while immigration reform passes.
But, like a good Catholic, don’t give up on the eventual resurrection of ENDA, perhaps just in time for the next election. After all, that’s what happened with the DREAM Act, which we now call Deferred Action for Childhood Arrivals (DACA). An Obama administrative policy, it uses prosecutorial discretion to allow most would-be DREAMers to live and work in the U.S. It was announced in June 2012, in time to help give Obama a 71 to 27 percent advantage in the Latino vote for his re-election.
President Obama can’t run again, and it’s unlikely that he worries about situating Vice President Biden to win a general election when he is unlikely to defeat Hillary Clinton in the primary. This time, the election on the president’s mind is retaking the House in 2014, and he will need to gather his coalition and find reasons for them to come to the polls.
Though I wouldn’t yet invest heavily in the Democrat’s chance of retaking the House in 2014, the coalition is falling into place. The immigration reform package appears to be a win-win with Latinos and progressives – a toutable achievement in passage or a call to arms in defeat.
If 2012 efforts to restrict voting are any example, the Supreme Court’s rejection of essential parts of the Voting Rights Act may again energize the African American community. Moderates, particularly women, and especially women looking for action on the economy, seem less than enthralled by discussion of fetal masturbation on the road to passage of a clearly unconstitutional abortion ban in the House.
Which brings us back to the LGBT community, and that ENDA-esque executive order. Scream loud enough to keep it on the front burner, but look for it after immigration reform, but before the next election. If the DREAM Act and DACA is any guide, it will happen just in time for 2014.
