Op-ed: Choosing the Safest Path to ENDA

Our community is disappointed the president has not signed an executive order that would be the equivalent of the Employment Non-Discrimination Act for federal contractors. The administration has said it prefers a lasting legislative solution -- ENDA itself -- that cannot be easily rescinded by the next president and that would apply to all employers, not just federal contractors.

Of course, the current Congress won't pass ENDA. But that isn't where the political logic should stop on this question.

Because ENDA is popular nationally, and because there is the very real possibility we can return the Speaker's gavel to Nancy Pelosi November 6, it's not inconceivable it could pass next year. If Republicans block it in the Senate, the president would then have even more reason to sign an executive order -- and at least three more years for it to remain in effect and prove its worth (instead of eight months if signed now and Romney wins).

Many cannot accept the administration's delay. Others think it's in our own best interest in the long run. Let's start with the easy part. We agree on two things:

(1) We deserve full equality now.

(2) We'll do much better with President Obama (and the kind of Supreme Court justices he'll appoint) than with President Romney (and his justices).

So it seems to me there are just two questions remaining on whether to implement an executive order right now:

(1) How much risk, if any, is there that signing it could help Mitt Romney win? Nationwide, ENDA enjoys strong support. But is there a risk that a swing state like Virginia or North Carolina could be lost? Picture such a state flooded with $20 million in grotesquely unfair, Willie Horton-type ads featuring trial lawyers suing small business owners over employee bathroom issues.

2. How much risk should we take to get the order signed this year rather than next?

If you are certain that the answer to question Number 1 is "zero" - that we couldn't possibly lose more votes than we gain in swing states -- then you either believe that Karl Rove and the Koch brothers would never stoop to exploiting us in hateful ways, or you believe the Virginia electorate is too sophisticated in matters of gender identity to fall for any of it. In which case, that's that: The decision, for you, is an easy one.

But if you think there may be some small risk -- say 5% -- then there's a trade-off. On the one hand, we get the executive order now. On the other hand, we risk seeing it rescinded when Romney takes office. We risk seeing the Supreme Court lost for 20 years, seeing 40 million people lose the health insurance they were finally going to get, seeing those of us with "pre-existing conditions" once again at risk, seeing yet more denial of the environmental challenges that quite literally threaten humanity, and seeing a concerted effort to roll back much of the LGBT progress made these last three years. (Here is that progress. Are any of the listed items steps McCain/Palin would have taken?)

Having lived through the Bush years because of the narrowest of losses in swing states such as Florida and New Mexico (and the loss in Tennessee), I am risk averse. And the stakes in 2012 are even higher than they were in 2000.

To be "courageous" on the topic of the executive order may actually mean standing up to those who would risk everything to get it a year sooner.

Reasonable people can disagree about the best strategy - whether to take the small risk of catastrophe or wait a year.

I believe that people on both sides of this issue are ardently pro-equality - as is the Obama administration. (Again, I refer you to that list.)

ANDREW TOBIAS is a writer and long-time Democrat. Learn more about him at his website.