Civil Liberties

The LGBT Equality Bill Won't Pass, but It Shows What's After the Marriage Fight

Calls for a drastic increase in what counts as a public accommodation under federal law.


Please rise for the national anthem: "You Make Me Feel (Mighty Real)"
Credit: -Marlith- / photo on flickr

Forget the Employment Non-Discrimination Act (ENDA). Gay activists and Democratic politicians have been fighting for the passage of ENDA for decades now and have failed. The act would have extended federal workplace non-discrimination laws to gays, lesbians and transgender people.

You might think that now would be the perfect time to try to get it passed, given the victory in the marriage recognition battle. You would be correct, but apparently some have decided not to stop there. Yesterday, Sen. Jeff Merkley (D-Ore.) and Rep. Dave Cicilline (D-R.I.) introduced the Equality Act, which aims to address pretty much every avenue of private or public discrimination against LGBT folks and outlaw it.

The Equality Act (pdf) would actually amend existing laws like the Civil Rights Act of 1964 and the Fair Housing Act to insert sexual orientation and gender identity in every area where discrimination is forbidden by federal law. That means it includes what ENDA intended to accomplish, but also adds federal discrimination protections in public accommodations, federal funding, housing, credit, and jury service. It has received the public support of Apple and gay marriage litigators David Boies and Ted Olson.

But there's even more! The Civil Rights Act of 1964 actually has a very limited view of what a public accommodation is. It includes hotels, restaurants or places that serve food, gas stations, and several different types of entertainment venues. That's actually all. State-level public accommodation laws tend to be much broader. Note that even if we added sexual orientation to the federal public accommodation laws, they wouldn't cover florists or photographers or wedding venues. Depending on how the food section is enforced, it might not even cover bakeries refusing to make wedding cakes.

The Equality Act seeks to massively broaden the federal definition of public accommodations. It expands the definition of what counts as an entertainment venue, then adds these two sections:

"(4) any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services;

 "(5) any train service, bus service, car service, taxi service, airline service, station, depot, or other place of or establishment that provides transportation service;"

These additions turn every single business that serves consumers in any fashion into a public accommodation. Get screwed over by a taxi driver? Accuse him of a being a bigot and send the feds after him!

Obviously, since gay activists can't get ENDA passed, they're not going to get this passed, certainly not through a Republican legislature, even if several GOP legislators are growing warmer toward gay issues. After the Supreme Court ruled in favor of gay marriage recognition, support for gay marriage actually dropped slightly, and more people opposed the Supreme Court's decision than supported it. Support for gay marriage recognition nevertheless still outnumbers opposition. The same poll showed more support for protection of "religious liberties" that result in some businesses refusing to provide services to gay couples. By contrast, the Equality Act also declares that the federal Religious Freedom Restoration Act may not be used as a justification for violating anti-discrimination laws.

How to parse the contradictory responses in polls? Well, certainly the way questions are worded matter, but it also seems clear that there are a significant number of citizens who, like libertarians, acknowledge the difference between government and private behavior. It is not contradictory to say that the government must recognize a gay couple's marriage but that a private business owner should not be forced under penalty of law to serve them. Gay marriage recognition extends rights and privileges to the couples without taking away anybody else's liberties. The same cannot be said for public accommodation laws.

Is there anything in this legislation for libertarians to support? Certainly anything that puts an end to discrimination by the government itself is worth notice, so the parts of the law that prohibit discrimination in jury service or government funding are appropriate. If they stripped those parts of the legislation out and attempted to pass them separately, they could even possibly get a bill through a Republican Congress.

But I suspect that's not the point. There's an election, people! We can't have some sort of bipartisan win on LGBT issues! The reason for creating such a massive antidiscrimination law that cannot possibly pass, with such heavy measures when there is little actual evidence of widespread discrimination any longer, is to get Democrats on the record of supporting new LGBT protections and the Republicans on the record opposing them. And that's how, now that the marriage battle is settled, the left will try to keep the LGBT vote.