Bush to veto ENDA?

A brief statement from the Office of Management and Budget released this afternoon says that Bush's advisors will recommend that he veto the Employment Non-Discrimination Act (ENDA), H.R. 3685, the first-ever federal bill that would protect gays from employment discrimination. The bill has not been voted on in the House; no action is scheduled yet in the Senate. The OMB statement cites a mix of policy and constitutional concerns.

A similar statement from Bush's advisors, also citing policy and constitutional concerns, was issued with respect to the Hate Crimes bill, which has not yet reached his desk.

Notably, the OMB statement on ENDA does not give, as a reason to veto, opposition in principle to an employment bill protecting gays from discrimination. Nor does the statement cite general libertarian qualms with anti-discrimination laws. The advisors instead give four reasons, which I react to briefly here:

(1) Religious freedom concerns. The religious freedom concern is very weak, given the unprecedentedly broad "religious organizations" exemption in the bill. See ENDA Sec. 3(a)(8) (definition of "religious organization") and Sec. 6 (exemption of religious organizations). The law does not unconstitutionally burden the right to free exercise of religion, as presently understood by the Court, since it applies generally to all covered entities whether or not they claim a religious objection to compliance.

(2) Sovereign immunity. Given the Court's very expansive, non-textual, and ahistorical present understanding of sovereign immunity and the Court's close limits on Congress' remedial and substantive power under Section 5 of the 14th Amendment, there may well be a constitutional problem with the section of the law that authorizes money damages in lawsuits against state governments. See ENDA Sec. 11. The rest of the law is perfectly constitutional and the bill contains a severability provision. ENDA Sec. 16. As we know, President Bush has no problem signing laws he believes are unconstitutional in part.

(3) Litigation arising from imprecise terms. "Perceived" sexual orientation, as used in ENDA Sec. 4(a)(1), does not seem especially imprecise to me, especially given that "sexual orientation" itself is given a narrow definition in ENDA Sec. 3(a)(9). The OMB statement does not explain why it might be troublingly imprecise. "Association," used in Sec. 4(e), likewise has meaning in federal statutory and constitutional law and the OMB does not explain why it is too vague here. There will be litigation around the edges of this law, as there always is, but the use of similar terms in the Americans with Disabilities Act has not produced voluminous litigation.

(4) "Sanctity" of marriage under federal law. Mention anything gay these days and the administration rushes to the defense of marriage. ENDA does not alter the federal definition of marriage as the union of one man and one woman given in the 1996 Defense of Marriage Act. ENDA also does not buttress same-sex marriage in the states. In fact, ENDA specifies in Sec. 8(b) that employers will not be required to treat an unmarried same-sex couple like a married couple for purposes of employee benefits. The implication, I suppose, is that an employer might be required to treat a married same-sex couple like a married opposite-sex couple for purposes of benefits since to do otherwise would amount to sexual-orientation discrimination. But I think the argument likely to be accepted by federal courts will be that "married" in this section refers to the federal definition of "marriage" under DOMA rather than to a state's own definition of marriage. The other reference to marriage in the bill, in Sec. 8(a)(3), simply prohibits an employer from using marriage as a proxy for sexual-orientation discrimination (but the bill otherwise prohibits disparate impact claims, see ENDA Sec. 4(g)). Neither of these sections referring to marriage alters the federal definition of marriage, requires a state to recognize same-sex marriages, or even requires an employer to treat an employee with a same-sex partner the same as an employee with an opposite-sex spouse.

The president's advisors now join an alliance of strange bedfellows, including religious-right groups like the anti-gay Americans for Truth, and gay-rights organizations like Lambda Legal, NGLTF, and more than 300 other gay/transgender organizations that are all trying to kill ENDA for their own reasons. The OMB statement makes it clear that even the stripped-down version of ENDA the House is considering, which was drafted to anticipate the sorts of concerns Bush's advisors are now raising, faces a steep climb. An even more expansive bill of the sort many gay-rights groups are insisting on would likely be a complete non-starter in both the Senate and the White House.

Whether Bush will actually veto the bill if it ever reaches his desk is unknown. The reasons given for a veto by OMB seem transparently thin, which suggests either that they're a sop to religious conservatives and that Bush may sign ENDA anyway or that they're a pretext for deep political concerns Congress simply won't be able to allay while Bush is president. It's still worth it for political reasons to pass a bill the President may well veto, just as it was politically advantageous (according to gay groups) to pass the seemingly doomed Hate Crimes bill. But a dose of cold realism about the law's prospects until at least 2009 has now been added to the mix.

UPDATE: Chris Crain offers some useful additional insights on the possibility of a Bush veto here.