Current ENDA Draft Co-Signs Defense of Marriage Act

A provision in ENDA would allow employers to give health insurance coverage and other benefits to married opposite-sex couples but deny them to wedded same-sex couples.

By: DUNCAN OSBORNE | A little-discussed provision of the Employment Non-Discrimination Act (ENDA) would allow employers to give health insurance coverage and other benefits to married opposite-sex couples and deny those same benefits to the partners of their gay and lesbian employees who are legally married in Massachusetts and California.

“It was unanimously agreed by all of us… that we had to put this language in there to protect this from being turned into a marriage bill which we would have lost,” said Barney Frank, the openly-gay Massachusetts congressman who is ENDA's champion in the House, in a phone message to Gay City News.

A similar provision has been in the bill since 1994, when ENDA was first introduced on Capitol Hill, but the earlier language said employers did not have to provide benefits to the domestic partners of their employees.

ENDA, which bans job discrimination based on sexual orientation, now says an employer cannot be required “to treat a couple who are not married in the same manner as the covered entity treats a married couple for purposes of employee benefits.”

To define “married” and “marry,” ENDA cites the 1996 Defense of Marriage Act (DOMA), which bars federal recognition of same-sex marriages and allows states to not honor them. Because the new bill, to an extent, mirrored the earlier language, gay and lesbian groups agreed to it, though not necessarily happily.

Brian Moulton, associate counsel at the Human Rights Campaign (HRC), the nation's leading gay lobbying group, said there was discussion about getting rid of that text when the domestic partner language was revisited in 2007 at the start of the 110th Congress.

“I think everyone acknowledged that wasn't something that we could do,” Moulton said.

The new language comes as the gay and lesbian community won the right to marry in Massachusetts in 2004 and, this year, in California. Groups in other states, such as New York and New Jersey, are pressing for the right to marry for same sex couples. ENDA would appear to undercut what activists call winning “marriage equality.”

Prior to the 2006 midterm elections, House Democrats had promised a vote on ENDA if they became the majority party in that body. Democrats and HRC clearly wanted that vote to happen.

To cool some opposition, Democrats added exceptions to ENDA for religious groups and the military as well as the marriage clause. Those changes drew complaints from some gay activists.

In the fall, when Democrats removed language from ENDA that is seen as protecting transgendered people from job discrimination, it sparked an outright revolt and, ultimately, more than 350 civil rights groups across the country opposed the bill and a few progressive Democrats voted against it.

ENDA passed the House by a vote of 235 to 184 in November of last year. The Senate version is given little chance of getting a vote this year, meaning the legislation will have to be reintroduced in the next Congress.

The marriage clause came earlier in 2007 and in response to opposition from business lobbying groups and some Democrats who worried about supporting a bill that might implicate marriage.

In an earlier ENDA version, Democrats added a paragraph after the marriage clause that said that states and cities could create ways to provide “employee benefits to an individual for the benefit of the domestic partner of such individual.”

That was seen as conflicting with the federal law that governs employee benefits and potentially setting up employers for lawsuits. Democrats, with HRC's help, removed that language and added the reference to DOMA.

“Certainly, in helping to construct this language, we're not conceding that not providing equal benefits is not discrimination,” Moulton said.

The American Benefits Council, which represents Fortune 500 companies, the US Chamber of Commerce, which has three million businesses as members, and the National Association of Manufacturers all took a neutral position on ENDA, rather than opposing it, as the result of that change.

“A lot of the bills that we see today don't address benefits separately,” said Lynn Dudley, senior vice president for policy at the American Benefits Council. “It would be fair to say that we were neutral because it didn't affect us.”

Randel K. Johnson, a vice president at the US Chamber of Commerce, said, “We were actively engaged in negotiating on the bill.”

The Society for Human Resource Management was neutral on ENDA in 2007, but switched its position to supporting ENDA in June of this year.

The Business Roundtable, an association of chief executives of US companies, did not respond to emails and calls about its position on ENDA nor did its lobbyist, the Duberstein Group.

A spokesperson for the Retail Industry Leaders Association, which represents more than 400 retail companies, said the senior staff who lobbied on ENDA could not be reached for comment.

In his message to Gay City News, Frank said he did not add the marriage clause and that it was required to pass ENDA.

“It was the decision of the committee and of everybody else, myself, Tammy, was that we couldn't pass anything without this and, in fact, even with this we had a somewhat closer vote,” he said. “We had to make it clear that non-discrimination in employment had no effect on marriage one way or another. It was added not by me, but, I believe, in committee.”

A spokesperson for Tammy Baldwin, a congresswoman who represents parts of Wisconsin, said she was not available for comment until after the Democratic Convention, which begins on August 25 in Denver.

Some gay and transgender activists who led the opposition to ENDA said the bill had too many flaws.

“The bill just had a lot of poison pills in it for me,” said Jeremy Bishop, executive director of Pride At Work, an LGBT labor group that is affiliated with the AFL-CIO, the union umbrella group. “For myself and Pride at Work, I think we would like to see a bill with fewer loopholes.”

Mara Keisling, executive director of the National Center for Transgender Equality (NCTE), while expressing support for a version of ENDA that includes transgender protections, said a comprehensive bill that had protections in public accommodations, credit, housing, and employment would also be welcome.

“I'd love to see a real aspirational civil rights bill,” Keisling said. “We shouldn't be asking for crumbs. We should be saying this is what LGBT people need. We do face discrimination in all those areas.”