> Q1: Before writing an Omnibus Equality Bill, shouldn't we have our equality agenda written in plain English?
> Q2: Are we ready for an Omnibus Equality Bill?
> Q3: Isn't it better to pass incremental bills with one set of rights at a time?
> Q4: Could anybody claim that gays are asking for special rights?
> Q5: Aren't you asking for too much?
> Q6: Why did you include religion in the title of the Omnibus Equality Bill?
> Q7: What parts of this legislation are you willing to compromise?
> Q8: What's the messaging for the Omnibus Equality Bill?
> Q9: How does the Omnibus Equality Bill handle marriage equality?
> Q10: Are there any concerns about amending the Civil Rights Act (Title VII)?
> Q11: Would putting a set of ideals in the Omnibus Bill devalue ENDA when we pass it?
> Q12: Isn't passing a separate ENDA more practical and beneficial?
> Q1: Before writing an Omnibus Bill, shouldn't we have our equality agenda written in plain English?
Absolutely true. In fact, eQualityGiving was founded in 2005 on the basis of describing and achieving the goals for legal equality. At eQualityGiving, we call them the "Equality Goals," and we have based all of our work and web presence around achieving these Equality Goals. See a one page summary of all Equality Goals. We describe what needs to happen for each goal, what is their status now, which organizations are making significant contributions to achieve each one, and much more:
And in each of the pages, visitors can add comments to complement the discussion.
[Answered by Juan Ahonen-Jover, Ph.D.] Back to list of questions.
> Q2: Are we ready for an Omnibus Equality Bill?
It's time to think big, as the President is doing. Moments like this don't come too often, and if we do this well (and we have the talent and experience to do it well), we can do great things.
What I want is a package that speaks to our dignity as human beings and Americans, as the 1964 Act spoke to African-Americans and the ERA spoke to women. I believe America is ready.
[Answered by Dana Beyer, M.D.] Back to list of questions.
> Q3: Isn't it better to pass incremental bills with one set of rights at a time?
Many people may side strongly with either the incremental approach or the omnibus approach. The two approaches are not necessarily incompatible.
Some of the immediate advantage of having a proposal for an omnibus bill are:
- The more we ask, the more we will get.
Clearly, if we ask little, we will get even less.
- We can compare the incremental proposed bills with the ideal.
We may discover, for instance, that the proposed ENDA (even if trans inclusive) is not as protective as employment legislation available for other protected groups.
[Answered by Juan Ahonen-Jover, Ph.D.] Back to list of questions.
> Q4: Could anybody claim that gays are asking for special rights?
Of course, the machinery of distorsion will claim it. The truth is that the bill shows clearly that we are not adding special rights. Just the same rights that others have.
[Answered by Juan Ahonen-Jover, Ph.D.] Back to list of questions.
> Q5: Aren't you asking for too much?
One of my favorite quotes is "Shoot for the moon, even if you miss, you'll be among the stars". This could be the game changer that we need to reboot our movement in Washington. I hope this forum allows us to improve upon the work that you have already done and then find some champions in Congress to help begin the process of introducing this legislation and having a hearing on it. Just imagine the nature of a hearing on this omnibus approach. It would have to focus on whether or not LGBT people should be treated equally under the law. Period. THAT is an argument we can win.
[Answered by Lane Hudson] Back to list of questions.
> Q6: Why did you include religion in the title of the Omnibus Equality Bill?
We added religion to the title and included reasonable religious exemptions intentionally to neutralize arguments from the right from the very beginning. This strategy is not original and has been used successfully in other legislation (e.g., marriage bill in Canada, marriage legislation in California).
[Answered by Juan Ahonen-Jover, Ph.D.] Back to list of questions.
> Q7: What parts of this legislation are you willing to compromise?
As with all legislation, they will try to amend it or take things out. Every single part of this is important to the whole. Is there a way to make the bill "all or nothing?" Once they start amending, there will be no stopping them. Which sections would we agree to have removed in order to pass a bill? I say NONE. The minute one thing is removed, it is no longer a comprehensive Omnibus bill. Maybe I'm being unrealistic, but this has to be all or nothing. We would never be able to agree on which areas to sacrifice in order to gain passage.
[Answered by Don George, M.D.] Back to list of questions.
> Q8: What's the messaging for the Omnibus Equality Bill?
The omnibus nature of the proposal makes the framing of the discussion very simple. Instead of being bogged down in individual issues and debating which should come first and when, the discussion can be changed to: 'Do you agree that LGBT people sould be treated the same by the law as everyone else OR do you think this discrimination should continue?' That is a simple question and I wonder if that was a poll question what the result would be. I venture to guess we'd get a pretty good number in favor of the idea of the law treating us the same as everyone else.
[Answered by Lane Hudson] Back to list of questions.
> Q9: How does the Omnibus Equality Bill handle marriage equality?
If a couple enters into a valid marriage, civil union (CU), or domestic partnership (DP) authorized by any state (local DP registries excluded), regardless of the state in which the couple permanently resides, the federal government will recognize the union and for all federal purposes treat you and your spouse as though you are married. So even if the the opposition succeeds is calling it something less, the feds will treat it as a marriage (though minus the "m" word for CUs and DPs). Nothing in this rewording of DOMA requires any state to recognize the marriage, CU or DP. Nor does it necessitate that the state you live in recognize your union in order to receive federal rights and protections.
This section is not the final answer on marriage equality by a long shot. It does dodge the "state recognition" issue for all federal purposes, but many states, especially those that passed their own DOMA laws and constitutional amendments will probably continue to deny state recognition. But the net result is that anyone with the financial resources to travel to a state that offers marriage, CUs or a statewide DP registry (of any kind), will have their union legally recognized for all federal law purposes (including tax and immigration purposes). I must admit, it was very fun figuring out a way to turn the right wing's DOMA definition on its head to grant recognition of our relationships!
[Answered by Karen Doering, Esq.] Back to list of questions.
> Q10: Are there any concerns about amending the Civil Rights Act (Title VII)?
It is often said that Title VII and the rest of the Civil Rights Act of 1964 is a "sacred cow" and we dare not attempt to add protections for LGBT people, lest we anger our allies - whom we all agree are necessary to pass any meaningful civil rights legislation. However, through the years, there have been many amendments to these so called "sacred cows" including the very first bill President Obama signed into law. It was our progressive allies that recently pushed through the Lilly Ledbetter Fair Pay Act of 2009 - a substantive change to Title VII (and the Age Discrimination in Employment Act, the ADA and the Rehabilitation Act). And prior to that, our allies supported the Civil Rights Act of 1991 that amended Title VII and created a new section to allow recovery of compensatory and punitive damages for intentional violations of Title VII, the ADA and Section 501 of the Rehabilitation Act. Our allies were all on board for that. And most of our progressive allies also now support full marriage equality for LGBT people - rights and protections way beyond the basic human rights granted under the Civil Rights Act.
I know as a long-time member of the National Employment Lawyers Association and from working for a boutique plaintiff-side employment discrimination class action law firm prior to doing LGBT work full-time, that the plaintiffs' bar has always been concerned about substantive amendments to Title VII - or any other civil rights law. But those concerns have historically been based on a fear (real or imagined) that a technical change to Title VII might inadvertently cause courts to change how they interpret Title VII or a concern that if we attempted to amend it, the opposition will sneak in amendments that will weaken the overall law. It seems to me that adding two new categories (SO and GIE) in 2009, without changing any other substance of the law, does not involve those same risks. Admittedly, it would require our allies to acknowledge in some way that denying us equal rights under the law is a denial of "civil rights" because it would become part of an existing civil rights law. Of course, even if we passed a "stand alone" bill it would still be referred to by Congress and the media as civil rights legislation, will be enforced and have its regulations drafted by existing government civil rights enforcement agencies, and be codified in the same manner as all other civil rights laws. Which of course highlights the lunacy of our community not using the "cr" words so as not to offend; seems like a great opportunity for some "what's the real issue here" conversations with our allies instead of playing a silly game that causes our movement leaders to believe that separate and unequal is somehow ok.
If our progressive allies concern is that suddenly courts will start interpreting Title VII more narrowly (something most Reagan and Bush I & II appointees already do) because they are hostile to SO and GIE claims (in reality saying if you get your rights then we might lose some of ours so you should accept less), well, that seems like an education/straight talk issue also, not something that should cause us to be happy about a separate and lesser law. (ENDA, of course, does not allow disparate impact claims, has a much broader religious exemption, expressly permits employers to treat married and unmarried (including LGB's who are prohibited from marrying) employees differently for purposes of employee benefits. It will also likely create massive litigation (because no one knows what this new law really means yet) and take a decade or so for the courts to sort out what was intended by this separate, lesser law (having fewer explicit protections and greater exemptions, the rules of statutory construction will favor our opponents' claims that this law was intended to do something less than Title VII and should be interpreted more narrowly.
[Answered by Karen Doering, Esq.] Back to list of questions.
> Q11: Would putting a set of ideals in the Omnibus Bill devalue ENDA when we pass it?
This is why an Omnibus Equality Bill is so important: it allows to compare the ideal with any incremental legislation passed.
The Employment Non-Discrimination Act introduced in Congress in the past is a compromise of a compromise. Earlier versions not only did not protect for gender identity, but also confer more exemptions to religious organizations to discriminate---among other differences.
[Answered by Juan Ahonen-Jover, Ph.D.] Back to list of questions.
> Q12: Isn't passing a separate ENDA more practical and beneficial?
No. In fact, passing a stand-alone bill unnecessarily creates ambiguity, adds huge costs to the government and will force existing civil rights enforcement agencies to divert resources to ‘reinvent the wheel,' will lead to inconsistent judicial interpretations and do the opposite of what President Obama says he intends to do - create a leaner, more efficient government. If Title VII were amended to add protections based on SO and GIE, the existing government regulations and decades of judicial interpretations would automatically apply to these new categories. The existing government regulations would obviously need to be amended to add the categories SO and GIE, and the agencies would need to draft some new regulations to address situations unique to SO discrimination or GIE discrimination (complete with the required public comment periods and regulation rewrites). Judicial interpretation would not be a big problem, as it would be clear from rules of statutory construction and government regulations that judges should apply the existing broad body of Title VII case law when interpreting allegations of discrimination based on SO and GIE. The decades of judicial interpretations saying that Title VII is to be broadly construed to effectuate its remedial purpose would apply and there would be no "lesser" protections for SO and GIE and no overly broad religious exemption to support the arguments of opponents of equality seeking more limited protections under Title VII for LGBT people. Private attorneys would begin litigating these cases almost immediately, with little concern about how the law will be applied.
A stand-alone ENDA, on the other hand, would unnecessarily lead to tremendous cost and waste of government resources, and would unnecessarily drain the already diminished funds and resources of LGBT legal groups. (Don't forget the Economy!!!) Government enforcement agencies, rather than amending existing regulations to address the new categories, would have to create new regulations from scratch, attempting to take into account the lesser protections and broader exemptions in ENDA. These government agencies would be forced to divert valuable human and financial resources that would otherwise be spent enforcing civil rights law to create new rules from scratch, complete with public comment and rewrites. After nearly a decade of acting as business protection non-enforcement agencies, this would greatly expand the amount of time it takes to get these agencies back up to even their pre-W condition (which is far less than it could be under an Obama administration)! And a stand-alone ENDA would almost certainly lead to increased litigation because no one really knows what this new, separate and lesser law really means. Many defendants would likely opt for litigation in an effort to limit the scope and breadth of the new law and/or to significantly reduce the amount of any settlement or court ordered judgment for the plaintiff. It would also divert resources from our LGBT legal organizations who would be forced to litigate many of the early cases, as the plaintiffs' bar will almost certainly shy away until there was some certainty in the law (unlike big defense firms, most plaintiff-side civil rights attorneys are sole practitioners or work in a firm with one or two other attorneys and are only paid when they win). The uncertainty of a stand-alone ENDA would be a significant deterrent to the plaintiffs' bar for many years.
So, is there a solution that would resolve all the problems mentioned above? Sure. Would it be simple? Not necessarily, but nothing worth doing ever is. Is it possible to do and still pass ENDA in 2009? Absolutely. How? Get buy-in from the current gatekeepers to have our LGBT lobbying organizations and allies work behind the scenes using ‘lean and efficient' government and fiscal responsibility arguments (Don't forget the Economy!) to get a strong endorsement from the Obama administration for the "new fully-inclusive ENDA" that will not only provide equal protection for LGBT people, but would also eliminate layers and layers of unnecessary government cost and waste by simply amending Title VII rather than creating a separate stand-alone bill. Our allies, who may initially be reluctant but will not suddenly refuse to support ENDA, also have a big stake in getting our civil rights enforcement agencies back in the business of enforcing civil rights laws, new and old. A real win-win.
[Answered by Karen Doering, Esq.] Back to list of questions.
Home >> Blueprint for LGBT Equality >> FAQ (top)
