Windsor's Ripples of Equality

A unanimous three-judge panel of the Ninth Circuit issued a ruling yesterday showing how the Supreme Court's Windsor case (DOMA) is helping to bring greater equality, even in areas unrelated to marriage equality.

The court ruled that a lawyer cannot peremptorily "strike" (remove from the jury pool without giving a reason) a potential juror based on their sexual orientation. But in reaching that conclusion, the Ninth Circuit concluded that any government classification based on sexual orientation triggers heightened scrutiny for Equal Protection analysis. This is a departure from Ninth Circuit precedent, which had previously applied only the lowest level "rational basis" scrutiny.

But that was before Windsor. The panel concluded that while the Supreme Court didn't explicitly address the appropriate level of scrutiny for anti-gay laws in the DOMA case, it in fact applied heightened scrutiny.

Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny. Our earlier cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor. Because we are bound by controlling, higher authority, we now hold that Windsor's heightened scrutiny applies to classifications based on sexual orientation. [internal quotations and citations removed]

The panel discussed the types of discrimination faced by gay and lesbians during our nation's history:

In the first half of the twentieth century, public attention was preoccupied with homosexual "infiltration" of the federal government. Gays and lesbians were dismissed from civilian employment in the federal government at a rate of sixty per month. Discrimination in employment was not limited to the federal government; local and state governments also excluded homosexuals, and professional licensing boards often revoked licenses on account of homosexuality. ... Indeed, gays and lesbians were thought to be so contrary to our conception of citizenship that they were made inadmissible under a provision of our immigration laws that required the Immigration and Naturalization Service (INS) to exclude individuals "afflicted with psychopathic personality." It was not until 1990 that the INS ceased to interpret that category as including gays and lesbians. It is only recently that gay men and women gained the right to be open about their sexuality in the course of their military service. As one scholar put it, throughout the twentieth century, gays and lesbians were the "anticitizen." [internal citations removed]

Indeed, today's Right Wing is dedicated to the idea that gays and lesbians are outsiders to our society. But most Americans know better, and so did five Supreme Court Justices in Windsor.

As the Ninth Circuit decision shows, the impact of Windsor continues to grow, and not just in the area of marriage equality.

PFAW Foundation

Our ENDA mission started with Senator Kennedy

UPDATE: ENDA got its start in 1994, but ENDA was not the first attempt in Congress to prohibit sexual orientation discrimination. Such protections were part of a broad civil rights bill introduced in 1974 that protected not only sexual orientation but also sex and marital status. Dubbed the Equality Act, its champions were Bella Abzug and Ed Koch.

Many who spoke this week in support of the Employment Non-Discrimination Act, including PFAW, invoked the name of a long-time ENDA champion, the late Ted Kennedy. So we reviewed the record and found his speech in support of ENDA's inaugural introduction in 1994.

And here's Senator Kennedy at the ENDA press conference in 1995:

Eighteen years later, four after his passing, we are still working to complete the mission that Senator Kennedy laid before the nation. We are keeping the pressure on all of Congress to pass ENDA.

The time is now!


Where is Speaker Boehner hiding all the good bills like ENDA?

At a press conference yesterday, Senate Majority Leader Harry Reid (D-NV) posed a question that you might also be wondering about:

Where is the secret vault in the US House where Speaker Boehner is hiding all the good bills?

Leader Reid makes a good point. Why "lock away" the Employment Non-Discrimination Act when 68 percent of voters, including 56 percent of Republicans, believe that the rights of lesbian, gay, bisexual, and transgender employees should be protected by federal law? Why keep the House from voting on ENDA when 8 out of 10 voters already think such a law exists?

Is Speaker Boehner afraid it will pass?


Senate HELP Committee Chairman Tom Harkin (D-IA):

The message from all the senators was clear:

It's our message, too.

Speaker Boehner needs to decide whether he will cave to that kind of bigotry or stand with the vast majority of voters who support this legislation.

Here are a few other highlights from the final day of Senate debate on ENDA.

Again from Leader Reid:

Senator Al Franken (D-MN):

Senator Sherrod Brown (D-OH):

Senator Susan Collins (R-ME):

Senators who stood on the right side of history and voted for passage should be thanked. Senators who stood with anti-gay extremists should hear your disappointment. There are more instructions here and here, and you can always reach them by dialing 202-224-3121.

As we move on to the House, if you have not added your name already, sign our petition now to keep the pressure on all of Congress to pass ENDA.

The time is now!


Scenes from today's ENDA debate - final votes tomorrow

During the Senate debate on the Employment Non-Discrimination Act today we've heard a lot about the bill's roots in the past, its relationship to American values, and how matching our laws with those values is long overdue when it comes to ENDA.

Senator Elizabeth Warren (D-MA), a progressive champion for many, quoted a predecessor in her seat and a long-time ENDA champion, the late Ted Kennedy:

The promise of America will never be fulfilled as long as justice is denied to even one among us.

She then offered her own words on how far we've come:

It has taken us far too long to arrive at this day, but we are here now, and we are not going back.

Senator Dianne Feinstein (D-CA), a contemporary of the late Harvey Milk, recalled her time in San Francisco city and county government, during which a non-discrimination ordinance was passed.

I watched the legislation implemented over the last four decades. It has protected people's jobs and livelihoods from unfair treatment. It has been a good thing for people and for business.

Senator Christopher Coons (D-DE) spoke passionately about how ENDA represents American values:

Protecting Americans from discrimination is part of America's shared values. And it needs to be part of our laws as well . . . It's not okay.

The final Senate votes on ENDA will take place tomorrow, starting at 11:45 am EST. Now is your last chance to call your senators. There are more instructions here and here, and you can always reach both of them by dialing 202-224-3121. Don’t forget to sign our petition.

The time is now – say yes to common sense and no to anti-gay extremistspass ENDA!


Scenes from the floor on the first day of ENDA debate

Yesterday marked the first day of Senate debate on the Employment Non-Discrimination Act, and ENDA survived its first major hurdle – a strongly bipartisan 61-30 cloture vote to end a Republican filibuster on proceeding to consideration of the bill.

Here are a few of the floor speeches given yesterday in support of ENDA.

Senator Tammy Baldwin (D-WI), the first openly gay US senator:

Senator Mark Kirk (R-IL), one of the lead Republicans on the bill in his first floor speech since suffering a stroke in January 2012:

Senate HELP Committee Chairman Tom Harkin (D-IA), summing up this historic moment:

From letters to alerts and more, the entire PFAW family has been working on ENDA. We still need your help. Please keep calling the Senate as this week's debate continues. There are more instructions here and here, and you can always reach both of your senators by dialing 202-224-3121. Don’t forget to sign our petition.

The time is now – say yes to common sense and no to anti-gay extremistspass ENDA!


Why We Need ENDA

The following is a guest post by Enbar Cohen, City of Aventura Commissioner and member of affiliate People For the American Way Foundation’s Young Elected Officials Network.

As Congress prepares to consider the Employment Non-Discrimination Act (ENDA), I have been reflecting on my own journey to self-acceptance from my starting point as a closeted young lesbian. I was raised in a conservative Jewish household and was told by those surrounding me that gay people couldn’t carry high-level executive jobs – that reputable companies avoid having openly gay employees representing their brand at important meetings.

Knowing that I could be fired for being gay created a fear in me. At the age of sixteen, I was already crafting a strategy on how to present as heterosexual in the workplace, how not to give rise to any suspicions about my sexuality. I was studying the art of inauthenticity and came to the conclusion that I had to out-perform and out-work everyone in order to shift the focus from my personality to my productivity.

No person should ever have to feel this way.

I wanted my parents to be proud, especially after I had “shamed” them when I came “out.”  I wanted to show them that my sexuality wouldn’t be a barrier for me in the workplace. While I don’t usually agree with his politics, I applauded Sen. Rob Portman for knowing the importance of not only supporting his son, but of doing the right thing for all Americans’ freedom to marry. When a parent advocates for their LGBT child or family member, they provide critically important acceptance that strengthens the spirit of that person. With a Senate vote on ENDA coming up, you should remember that, Sen. Portman.

Today I am open and proud. I want to show people, especially the youth that I have worked with, that you can be LGBT and still be successful in the workplace. That hard work and integrity take precedent over sexuality. Days after my 24th birthday, I was elected as the youngest openly lesbian elected official in the United States.

But employment discrimination is still a very real problem. Last summer I met a woman at an LGBT networking event. After mentioning she was a high-level executive at a pharmaceutical company, she promptly informed me that she wasn’t gay. Later in our conversation, her anxiety was palpable as she whispered to me that she was, in fact, a lesbian. Her words – “I’ve worked too hard to get where I am to be let go for something like that” – have been etched in my mind ever since.

Discrimination is never okay. That someone can be fired because they are LGBT is blatant discrimination and is contrary to our American values.  Employees should be judged based on their passion and commitment to their work, their integrity, their work performance – not their sexual orientation.  Our laws communicate where our values and priorities are as a nation. They ought to be representative of where Americans stand, and they ought to serve and protect all of us. Americans agree on ENDA

In the words of Martin Luther King Jr., “The time is always right to do what’s right.” The time to protect all Americans from workplace discrimination is now. 


Senators Pryor and Manchin join list of ENDA supporters, contact your senators now

On Monday, Majority Leader Harry Reid announced that the Employment Non-Discrimination Act will come up for a vote before Thanksgiving, and Senator Bill Nelson added his name to the bill.

Late Tuesday came word that Senator Mark Pryor will vote yes on ENDA.

Max Brantley of the Arkansas Times:

I've just received a brief message from Sen. Mark Pryor's office. It's big news. Said a note from Michael Teague of his staff:

"He'll vote yes on ENDA."

This is big news.

Then moments ago Senator Joe Manchin jumped on board.

Jeremy Peters of the New York Times:

Senator Pryor is No. 58 and Manchin No. 59 on the road to passing ENDA. That's a strong majority, but unfortunately because of the unprecedented GOP obstruction that has subjected most issues before the Senate to a super majority 60-vote threshold to overcome filibusters, we're still one vote shy of success. One vote.

It’s unconscionable that, once again, unprecedented obstruction is threatening fairness.

ENDA and workplace fairness for all have a clear majority on their side, but every vote is still critical. Thank those already in support for protecting LGBT workers. Tell those who aren't yet on board to say yes to common sense and no to anti-gay extremists.

The time is now – pass ENDA!


Senator Nelson cosponsors ENDA, leaves 3 votes to go, contact your senators now

On the same day that Majority Leader Harry Reid announced that the Employment Non-Discrimination Act will come up for a vote before Thanksgiving, Senator Bill Nelson added his name to the bill.

Let's do a little math.

Senator Jeff Merkley (D-OR) is ENDA's lead sponsor.

53 currently serving senators, including Senator Nelson (D-FL), have cosponsored ENDA.

Senators Lisa Murkowski (R-AK) and Orrin Hatch (R-UT) voted for ENDA in committee.

Senator-Elect Cory Booker (D-NJ) will be sworn in this week and is expected to support ENDA.


That's 57 votes that we can reasonably count in favor of ENDA. We only need 60 to cross the filibuster threshold.

3 votes to go!

Every vote will be critical to passage. Thank those already in support for protecting LGBT workers. Tell those who aren't yet on board to say yes to common sense and no to anti-gay extremists.

The time is now – pass ENDA!