Gay-rights advocates woo Flake, McCain

WASHINGTON — WASHINGTON Sens. Jeff Flake and John McCain could be key in determining the fate of a bill that would ban employment discrimination against gays, lesbians, bisexuals and transgender workers.

The Arizona Republicans are among six GOP senators being lobbied heavily by supporters of the Employment Non-Discrimination Act. The bill's supporters appear to be close to securing the 60 votes needed to prevent a filibuster. A vote to proceed to debate on the bill is scheduled for tonight, potentially setting up a vote to approve it later in the week.

On Thursday, Arizona volunteers delivered more than 3,200 postcards and letters to McCain's and Flake's Phoenix offices urging the senators to vote for the proposed law. Supporters said they also have made more than 1,100 phone calls to the senators. Their efforts will continue until the vote.

"Our goal is to really show that the support is there for this issue among Senator McCain's and Senator Flake's constituents," said Dan Rafter of the Human Rights Campaign, the nation's largest gay-rights group.

The bill would bar employers from using a person's sexual orientation or gender identity as the basis for hiring, firing, promotion or salary decisions.

Flake supported a narrower version of the bill in 2007 when he was serving in the House. That bill did not include transgender workers. It passed the House 235-184 in 2007 but died in the Senate.

This time, Flake said he will oppose the legislation.

"Unlike a 2007 version of this bill, which I supported, the Senate bill includes new provisions that will increase the potential for litigation and compliance costs, especially for small businesses," Flake said in a written statement. "For that reason, I oppose the Senate bill."

McCain has not yet decided how to vote, although an aide says he's leaning toward opposing the bill unless it is amended. The aide said McCain worries that the bill could lead to "lawsuit abuse by trial lawyers" and whether it adequately exempts religious schools and charities from having to hire gay employees if doing so would conflict with their religious beliefs.

A September poll by Republican pollster Alan Lundry indicated about 63 percent of Arizonans support the proposed law.

"One thing we've found in conversations is that Arizonans see this as sort of a matter of the golden rule -- treating others as you would want to be treated," Rafter said. "No one would want to lose a job because of who they are."

To tap into that sentiment, the bipartisan Americans for Workplace Opportunity coalition sent three full-time field organizers to Arizona to lead the postcard-writing effort and organize phone banks to lobby Flake and McCain. The field workers have been in the state since August, shortly after the measure was approved by the Senate Health, Education, Labor and Pensions Committee. Arizona is one of seven states where the coalition has focused its efforts.

The challenge for the bill's supporters is that the Republican senators they are hoping to attract may worry about a challenge from the right in a GOP primary if they vote for the bill, said Jack Pitney, a political scientist at Claremont McKenna College in California.

"There are social conservatives in the Republican Party who would oppose just about any gay-rights legislation, so there is a political cost," Pitney said. "On the other hand, non-discrimination laws do not generate as much opposition as same-sex marriage bills. There are conservative Republicans, both in the electorate and among politicians, who don't support gay marriage but do support non-discrimination. They are very different issues."

Pitney said Republicans who oppose the law risk losing the support of younger voters.

"Younger people -- even those who are conservative -- are much more likely to embrace gay rights than older people, particularly on the issue of non-discrimination," he said. "And as societal attitudes continue to change on the issue, Republicans could risk alienating voters in the general election if they oppose this law."

The Senate's 53 Democrats and two independents -- led by Senate Majority Leader Harry Reid, D-Nev. -- have all come out in favor of the bill.

Two Republicans -- Sens. Susan Collins of Maine and Mark Kirk of Illinois -- also support the legislation. But two Republicans who voted for it in committee -- Sens. Orrin Hatch of Utah and Lisa Murkowski of Alaska -- have indicated that their support is now uncertain.

That leaves advocates for the law about three votes shy of the 60 votes they need to overcome a filibuster in the Senate.

If it passes the Democrat-led Senate, though, the legislation would face steep odds in the Republican-controlled House.

In addition to Flake and McCain, the Republican senators the Human Rights Campaign and its allies have focused on are: Dean Heller of Nevada, Rob Portman of Ohio, Patrick Toomey of Pennsylvania and Kelly Ayotte of New Hampshire.

Opponents of the bill say they also have been in touch with Flake,McCain and other key senators to try to convince them that the proposed law would hurt businesses and infringe on religious liberty.

"Business will be hit with more litigation costs if this bill passes," said Peter Sprigg, senior fellow for public-policy research at the conservative Family Research Council, which opposes gay rights and abortion rights. "When you add a new protected category to the law, you are giving a license to sue to a whole group of people who didn't have it previously."

But advocates of the bill say there has been no significant increase in litigation in states that have passed anti-discrimination laws. The U.S. Chamber of Commerce has adopted a "neutral" position on the legislation.

The Human Rights Campaign cites a 2013 report by the Government Accountability Office that showed "relatively few" employment-discrimination cases in the 21 states that have laws barring employment discrimination on the basis of sexual orientation. On average, claims based on sexual orientation or gender identity were about 3 to 4 percent of the total number of employment-discrimination claims, the report said.

The Family Research Council doesn't believe that gays need to be protected from discrimination the way that racial minorities or women do, Sprigg said. "Most employers don't discriminate against employees based on sexual orientation because they have no way of knowing their orientation unless they declare it," he said. "It's an invisible characteristic; it's not like race or gender. For the vast majority of employers, they are not going to consider sexual orientation a relevant factor."

Those that do consider it relevant -- such as churches, Christian bookstores and other groups and businesses with religious affiliations -- should not be forced to hire gays, Sprigg said.

"While there is a religious exemption of sorts in this bill, we are not convinced that any exemption could be written in such a way that protects the rights of those who disapprove of homosexual conduct," he said.

But the bill's authors say they provide a broad exemption for religious organizations.

Any religious entity that is currently exempt from the employment-discrimination provisions in Title VII of the Civil Rights Act of 1964 would also be exempt under the proposed law, the bill's supporters say.

"Americans understand that it's time to make sure our LGBT friends and family are treated fairly and have the same opportunities," said Sen. Jeff Merkley, D-Ore.,who is the bill's lead sponsor. "Now it's time for our laws to catch up. People should be judged at work on their ability to do the job, period."

Rafter said supporters of the bill believe a victory in the Senate could lead to action in the House. "The House is a little tougher, but we do see momentum there," he said.

In just the last few days, Rafter said, Republican Reps. Jon Runyan of New Jersey and Chris Gibson of New York joined three other Republican co-sponsors of the House bill.

Sprigg said he has heard that House Democrats may try to force a vote on the bill using a procedural tool called a discharge petition. If they can get 218 signatures -- which would require support from 18 Republicans -- they can bring the legislation to the House floor for a vote.

"If it does come out of the Senate, that will put more pressure on the House," Sprigg said. "We can't be 100 percent sure what's going to happen there."

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