WASHINGTON — Same-sex couples can finally get married everywhere in the country, thanks to the Supreme Court’s long-awaited ruling last month. A couple can exchange rings, dance the night away and then post pictures of the event on Facebook. Just like any other couple.
But then their boss could find the photos on Monday, realize they’re gay and fire them — based solely on their sexual orientation. And there’s no federal law stopping their boss from doing so.
Rep. David Cicilline (D-R.I.), who is openly gay, said many Americans have no idea that this sort of discrimination is still legal.
“But the truth is, in a majority of the states, there are no protections against discrimination based on your sexual orientation or your gender identity,” he told The Huffington Post.
On Thursday, Cicilline and Sen. Jeff Merkley (D-Ore.) are introducing sweeping legislation to give lesbian, gay, bisexual and transgender individuals the same civil rights protections as other Americans.
Their bill would amend the Civil Rights Act of 1964 to add sexual orientation and gender identity to the list of already protected classes (race, color, sex, religion and national origin).
In other words, it would protect LGBT people from discrimination in credit, education, employment, housing, federal financial assistance, jury service and public accommodations. (Some states already have their own laws on the books.)
“We are way past the time that someone should be kicked out of a restaurant because of their sexual orientation or gender identity,” said Merkley. “Way past the time that someone should not be able to serve on a jury. We need to set the gold standard and simply say, ‘Discrimination is wrong. Equality and opportunity are right.’ And this bill is going to establish that.”
The Equality Act, as it’s titled, is a much broader follow-up to the 2013 Employment Non-Discrimination Act. That bill, which Merkley also introduced, would have outlawed workplace discrimination on the basis of sexual orientation and gender identity. It passed the Senate, where Democrats were then in the majority, but Speaker John Boehner (R-Ohio) never brought it up for a vote in the House.
In a briefing with a small group of reporters Wednesday, Cicilline and Merkley, along with Sens. Tammy Baldwin (D-Wis.) and Cory Booker (D-N.J.), said they had no illusions about the difficulty of passing the Equality Act in the current GOP-controlled Congress. They said that although there are already several dozen Senate co-sponsors and nearly 100 House ones, no Republicans have signed on so far.
“Part of the vision here is to lay out the goal and start a public dialogue,” said Merkley, noting they were already talking to GOP lawmakers who want to first see the final bill before deciding whether they want to be a leader on this issue. “So just as it took a long time to get those Republican partners on ENDA, it may take some dialogue, some exploration to have folks become comfortable, step up.”
According to a survey in March from the pro-LGBT Human Rights Campaign, 63 percent of LGBT Americans say they have experienced some kind of discrimination. Seventy-four percent also said that securing these comprehensive nondiscrimination protections should be a “top priority” for the community.
But the Equality Act is already causing some disagreement among civil rights allies who ultimately want these LGBT protections. Groups like GetEQUAL and the Leadership Conference on Civil and Human Rights are concerned that amending the Civil Rights Act would open it up to toxic amendments that could weaken the landmark law.
Merkley explained Wednesday that this discussion about how best to move forward went on for months. But ultimately, they settled on amending the Civil Rights Act, for both legal and moral reasons.
“One is simply that you have all the court precedents that are related to the Civil Rights Act and then provide guidance and understanding for what this language means. … And the second powerful reason is that it just feels wrong to have a separate section, in which you say that gender and race and ethnicity are here, and sexual identity and sexual orientation are here,” he said.
Another reason that many groups support amending the Civil Rights Act is it allows them to fix some other gaps in the law as well.
Title II of the law, for example, bars discrimination in public accommodations on the basis of race, color, religion and national origin. So, for instance, restaurants and movie theaters can’t turn someone away because she happens to be black.
But the law doesn’t prohibit discrimination on the basis of sex — even though sex discrimination is barred in many other sections of the law. The Equality Act would add sex, as well as sexual orientation and gender identity, to all the areas of the law.
It would also widen the definition of a public accommodation. Right now, the list reflects what was popular in 1964, specifying that places like a “lunch counter” or a “soda fountain” can’t discriminate. This new bill would broaden the categories to reflect modern times and cover nearly every entity that provides goods, services or programs.
Booker said Wednesday he has been reaching out to African-American leaders who are concerned about their strategy.
“At a time in our country when African Americans are seeing a rollback of critical rights — we’re losing ground on voting rights, for example — there is an understandable concern, a legitimate fear, that we can’t afford to lose any more ground,” he acknowledged. “So the first principle for my colleagues, as well as African American leaders is to do no harm. We need to make sure that we do no harm to the hard-fought and hard-won equality and rights that currently exist for people of all races, colors and different faiths.”
But Booker added that many civil rights leaders who did fight for the civil rights legislation, including Rep. John Lewis (D-Ga.), support the Equality Act and will be at the press conference Thursday in the Capitol to introduce the measure.
“I know that the LGBT community and others who are very supportive of this approach, including the women’s community, are going to stand shoulder to shoulder to fight off any amendments,” said Sarah Warbelow, legal director at the Human Rights Campaign. “We know that our champions on the Hill are committed and dedicated to ensuring that nobody’s civil rights are harmed in any way, shape or form.”
The issue of LGBT protections, especially in the area of public accommodations, has grown increasingly heated in recent months. This week, Sen. Ted Cruz (R-Texas) released a video applauding an Iowa couple, who is Mennonite, for standing up for their religious beliefs and refusing to allow a same-sex couple to use their wedding venue.
In Congress, conservatives are pushing the First Amendment Defense Act, which would bar the federal government from taking discriminatory action against a person — which includes for-profit corporations — acting in accordance with a religious belief that opposes same-sex marriage.
And Indiana faced significant backlash recently when it passed a Religious Freedom Restoration Act that critics said would have allowed businesses to discriminate against same-sex couples.
The Equality Act would settle some of the RFRA debates by adding LGBT protections in public accommodations. It would also clarify that the federal RFRA cannot be used as a defense for discrimination.
UPDATE: 7/23/15 — At Thursday’s press conference introducing the bill, Merkley and Cicilline said the legislation now has 155 cosponsors in the House and 40 in the Senate. Watch Lewis talk about why the bill is necessary: