Fresh off their biggest legal victory, gay rights supporters began to expand their efforts beyond same-sex marriage to a broad push to rewrite civil rights law and extend protections to other personal and financial actions.
A liberal coalition spanning gay rights groups and traditional African American leaders turned its attention to a new legislative bid to outlaw discrimination against homosexuals in employment, housing, financial dealings and other regular actions not protected under the Supreme Court’s ruling declaring same-sex marriage a constitutional right.
“You can be married on Saturday, post your pictures on Instagram on Sunday and fired from your job on Monday,” said Rep. David N. Cicilline (D-R.I.), one of six openly gay House members and the lead sponsor of the legislation.
After Friday’s ruling, Sen. Jeff Merkley (D-Ore.), the sponsor of the legislation in that chamber, e-mailed thousands of supporters asking them to get behind the new bid because, despite the marriage decision, it is still legal in some states to “kick someone out of a diner or other public accommodation because of who they love.”
Although Cicilline and Merkley plan to formally introduce the legislation next month, they acknowledged that it will be tough in the near term to win approval of an expansive gay rights agenda. Republican leaders in Congress, while trying to avoid inflammatory statements about the decision, have shown no appetite for a debate that would open up gay rights beyond what the federal courts have established.
Sen. Charles E. Grassley (R-Iowa), chairman of the Judiciary Committee, expressed concern that conservative institutions would be forced to take actions against their religiously held belief opposed to gay marriage. “Everyone deserves to be treated with respect, and nobody should have their deeply held religious beliefs trampled by their government,” he said after the ruling.
On the campaign trail, some Republican contenders for the 2016 presidential nomination grabbed hold of the Supreme Court ruling to try to appeal to social conservatives in key early primary states. After Friday’s ruling, Sen. Ted Cruz (R-Tex.), a member of the Judiciary Committee that would have oversight of Merkley’s legislation, called for elections that could be held to throw justices off the Supreme Court.
In the short run, gay rights supporters also focused on shoring up implementation of the court’s marriage ruling, as some of the most conservative-leaning states have governors or attorneys general who are refusing to uphold the decision and allow gay marriage in their states.
The Campaign for Southern Equality, which has worked to advance gay marriage rights, filed a brief with the U.S. Court of Appeals for the 5th Circuit, based in New Orleans and covering a bloc of Southern states, asking those judges to immediately lift their stay on a lower-court ruling in Mississippi that allowed for same-sex weddings. Despite the Supreme Court’s ruling, state Attorney General Jim Hood has said that the federal courts in his region need to act first, leaving same-sex marriage blocked in Mississippi.
Despite those hurdles, supporters of gay rights expressed long-term optimism, particularly after the ruling written by Justice Anthony M. Kennedy, a 1987 appointee of President Reagan. In an interview Saturday, Merkley cited “Kennedy’s clarion call about dignity in the eyes of the law” but noted the need to extend the effort.
“You can’t have dignity in the eyes of the law if you can still be discriminated against in mortgages,” Merkley said.
More than half the states do not have laws protecting against discrimination based on sexual orientation, meaning that landlords, banks and restaurants in those states can discriminate.
For the previous 20 years, the leading gay rights advocates had been promoting the Employment Non-Discrimination Act, which was originally authored by Sen. Edward M. Kennedy (D-Mass.) and Merkley took up as Kennedy became ill and died in 2009. In November 2013, Merkley succeeded in winning ENDA’s passage in the Senate, but it languished in the Republican-controlled House.
Soon after the Senate vote, the liberal coalition decided to go bigger and draft legislation that would provide many more protections against discrimination. According to Winnie Stachelberg, executive vice president of external affairs at the Center for American Progress, the expansion of same-sex marriage at the state level in recent years brought on a “backlash” against those couples as their private lives became more public.
A key difficulty Merkley and Cicilline face is that, to be successful, they will have to amend the landmark 1964 Civil Rights Act. Black leaders normally resist opening up the law for fear that it would lead to rollbacks in the protections it afforded based on race and ethnicity.
They have built their coalition beyond the obvious allies — Sen. Tammy Baldwin (D-Wis.), the only openly lesbian senator; and the Human Rights Campaign, the most prominent gay rights group — to include prominent black leaders and organizations.
Rep. John Lewis (D-Ga.), the civil rights icon, and Sen. Cory Booker (D-N.J.), one of two black senators, are supporting the emerging legislation. The NAACP and the Leadership Conference on Civil and Human Rights were among the 14 groups that signed on to the statement that Merkley and Cicilline issued after Friday’s ruling.
Lawmakers said they are trying to find Republican co-sponsors and that the leaders of the two judiciary committees, Grassley and Rep. Bob Goodlatte (R-Va.), have not signaled an inclination to even hold a hearing. “We don’t see a chairman who is stepping forward at this point,” Merkley said.
Stachelberg, who previously served as a top adviser at the Human Rights Campaign, said that the new effort needed to learn from the public campaigns for same-sex marriage and overturning the “don’t ask, don’t tell” law that prohibited openly gay service members from working in the military.
“We need a similar kind of public education campaign,” she said. “We have to take the case to the American people.”
This is a more difficult task, supporters said, because marriage and military service are such traditionally public actions that are almost universally supported. Forbidding a certain group of people from taking part became increasingly unpopular with younger, more socially liberal voters.
But educating the public on the kind of discrimination that takes place behind the closed doors of a job interview or during the mortgage application process is a more difficult task.
When he first started working on ENDA, Merkley recalled a conversation with his daughter, then in middle school, in which she did not understand how that type of discrimination was not prohibited. “What’s hard is, people assume it’s already illegal,” he said.
“The public doesn’t see the job interview when someone gets turned away,” he added.