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Gay Rights Legislation Overview: Outlook for Lame Duck Congress

Come January, Republicans will take over the U.S. House, and the Democratic Senate majority will shrink. That means Democrats have less than two months in a lame-duck session to enact any significant gay rights legislation. Once the new Republican representatives move in, it’s just not going to happen until at least 2013, when Democrats next have a chance to take back the House.

Nevertheless, here’s legislation to look for over the next two months:

1. DADT Repeal

DADT, or Don’t Ask Don’t Tell, the 1993 Defense Department policy that prevents military members from revealing their sexuality, has garnered lots of recent press. Just a few days ago, a Pentagon study concluded that repeal of the ban would not seriously hurt military readiness or current war efforts.

President Obama declared earlier this year that DADT was a legislative priority for 2010. Even just before the November election, Obama said he’d be personally involved in repealing the law. Back in September, a bill to repeal the policy failed in the Senate.

Outlook: Unlikely in the short term, likely in the long term. DADT repeal may be popular—a vast majority supports it—but it didn’t happen it September, and it’s probably not going to happen now. Democrats have even dropped it from their list of priorities for the lame duck session. Still, the momentum is clearly on the side of its repeal—it’s just a matter of time.


ENDA, or the Employment Non-Discrimination Act, would prevent employers with over 15 employees from discriminating based on sexual orientation. Currently, employers are free to discriminate against employees for being gay.

A bill to pass ENDA did not get out of committee earlier this year because not enough people supported its inclusion of transgender as a protected class.

Outlook: Uncertain. It won’t happen in this lame-duck session. A rumor earlier last week that House Majority Leader Nancy Pelosi supported an ENDA lame-duck vote was quickly dispelled.

3. DOMA Repeal

DOMA, or the Defense of Marriage Act, does two things: (1) it prevents the federal government from recognizing same sex marriage, and (2) it allows states to refuse to recognize gay marriages performed in other states.

A bill to repeal DOMA was introduced to Congress back in September of 2009, but there’s been no activity since then.

Outlook: Doubtful. As difficult as it’s been to repeal DADT, DOMA would be even more so. Instead, getting rid of DOMA will most likely happen through the courts, if it does at all. Until then, LGBT couples will have to resort to domestic partnership planning to mimic the benefits that marriage provides.

[Cross-posted at the Gay Law Report, where I discuss LGBT laws and related news.]

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Gideon Alper

Gideon Alper