Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
February 9, 2016

Gay Marriage Is a Tougher Sell Than Ban on Workplace Bias

In the fortnight after the Supreme Court’s oral arguments in two same-sex-marriage cases, half a dozen senators announced they had changed their minds to support the right of gays and lesbians to wed.

The wave of turnabouts a month ago was important because it reinforced the notion that elected politicians were hurrying to get right with a seismic shift in public opinion — no matter what the justices decide to do.

But on a more tangible level, the fact that 54 senators now back marriage equality doesn’t have much real meaning. That’s simply because legislation to universalize gay marriage is nowhere near the realm of possibility.

That said, the size of that bloc could prove decisive for the fate of two measures that may show life this year.

If the justices rule, as the arguments signaled they might, and strike down a central section of the 1996 Defense of Marriage Act — the part that, in effect, prevents federal agencies from recognizing same-sex marriages in states where they’re legal — it’s a sure bet that culturally conservative Republicans will begin pushing replacement legislation. But those 54 votes would be more than sufficient to prevent such a bill from ever getting through the Senate filibuster starting gate.

More important than that defensive block for many in the gay rights community is the potential help the 54 could give legislation banning most bias against homosexuals on the job. The Employment Non-Discrimination Act would extend federal employment discrimination protections under the 1964 Civil Rights Act to sexual orientation.

Which is why proponents of the bill expressed so much worry and annoyance Monday on the news that Sen. Rob Portman of Ohio, the very first GOP senator to endorse marriage equality, was not ready to make the ideologically consistent leap to endorse legislation protecting gays from discrimination in the workplace.

“I totally support the concept,” Portman said at a Monday night event hosted by BuzzFeed and reported on by #WGDB blogger Meredith Shiner, because “there should be no discrimination and there ought to be a law in place.”

But Portman then offered two rationales for his hesitance on ENDA. They were even more troublesome to supporters than the fact that their newest and most potentially powerful GOP ally was wavering. He said enactment of the current version would lead to too many new lawsuits (something that could be said of essentially any civil rights expansion) and that it would infringe on the First Amendment rights of religious groups opposed to homosexuality (even though the bill includes a section explicitly exempting such religious organizations from having to comply).

Portman’s open wavering suggests that, one year after President Barack Obama announced his own election-year conversion to supporting gay marriage, the political momentum is neither as intense nor as one-directional as it might appear. Of the 166 sponsors of ENDA in the House, for example, only three are Republicans: Florida’s Ileana Ros-Lehtinen, Pennsylvania’s Charlie Dent and New York’s Richard Hanna.

This isn’t to label the bill a nonstarter. Its prospects have probably never been better during the 40 years it’s been kicking around the Capitol. If the Supreme Court not only strikes down DOMA but also sweeps aside same-sex marriage restrictions in California and elsewhere, such historic decisions could spur overwhelming congressional interest in granting gay people civil rights at work to complement their new rights in their personal lives.

Defeats in those cases, or even more muddied results, would prompt gay rights advocates to redouble efforts to get out of Congress some of the advances denied by the courts — and to do so before the 2014 midterm elections.

Democratic Sen. Tom Harkin of Iowa has made ENDA the top social policy objective of his final two years in the Senate, and as chairman of the Health, Education, Labor and Pensions Committee, he’s on course to move the measure in the next few months. The dozen Democrats on the panel are so far joined by at least one Republican, Mark S. Kirk of Illinois, who is the only other GOP senator backing gay marriage at the moment.

Sen. Susan Collins of Maine, who’s a safe bet to win a fourth term next year if she avoids a conservative primary challenger, hasn’t backed same-sex marriage but is nonetheless the only GOP co-sponsor of ENDA besides Kirk.

Two others who have signaled a not-quite-there-yet approach to gay marriage, Republican Lisa Murkowski and Democrat Mary L. Landrieu, are seen by some advocates as persuadable on matters of civil rights.

If those votes fall into place, and Portman’s wavering is overcome, the decisive ballot to break a filibuster could rest with Mark Pryor of Arkansas. At the moment, he stands as the Democrat in the most re-election trouble next year, and his recent votes against gun control and his party’s budget show that he’s hoping to win by hewing to a centrist line.

But there’s a sliver of Pryor’s life story that suggests he might do the unexpected. He was a 33-year-old state legislator seriously ill with a rare form of cancer back in 1996 — so sick that his father, David Pryor, was at his bedside in Little Rock rather than his desk in the Senate the only time ENDA ever made it to the floor.

The bill was defeated by a single vote because of the elder Pryor’s absence.

  • aj rabin

    At least Portman has some brains. I thought he didn’t have any, after saying he’s changing his position in support of the perversion of marriage on the basis of his son.

    • Stanley James

      perversiom of marriage- thats what people like you said about endling bans on inter-racial marriage when those basn were trashed by scotuts

      your kind also claimed that bans on inter-racial marriage protected the sanctity of the4 white race.

    • adastraperapathy

      I assume you understand that almost every human quality (hair color, skin color, memory, athletic talent, music talent) occurs on a spectrum, right?

      So, don’t you think it would be natural for human gender and sexuality to occur on a spectrum too?

      Indeed human gender and sexuality does occur on a spectrum and it always has. There have always been people attracted to the same gender, even though it is not the dominant mode of attraction.

      Considering that everyone is made differently, and same-sex relationships can be healthy and beneficial to both of the individuals involved as well as their families and communities, it make no sense to deny equal protection to such relationships.

      If marriage was always and only about natural procreation, then shouldn’t we ban sterile men and post-menopausal women from marriage?

      Of course, marriage serves a variety of purposes, almost all of which (including child rearing) are important and applicable to same-sex couples as they are to heterosexual pairs.

      There certainly are many threats to marriage and families in this world, but when people focus so much attention on preventing same-sex couples and families from having equal protection of the law, they take the focus off of the greater threats, such as economic hardship, addiction, and domestic abuse.

      I truly wish we could all focus on addressing those real threats rather than spending so much energy preventing good couples from having equal access to the marital rights and protections.

    • PJM

      Aj Rabin, or whatever your name is, you are a bigot who is just upset that, in 20 years, bigots like you will be too ashamed to post such nonsense on the Internet. Get all your hatred out now while you can. The days where decent people are willing to turn the other way to your kind of bigotry are coming to an end. And, as usual, the GOP will be the last to drag itself to the table.

  • PJM

    Anyone who thinks that the battle for gay rights is over needs to think again. We now have 11 states and the District of Columbia that grant equal marriage rights to gay people. A few more will join (California, Illinois, etc.) but there are about 30 states that have enshrined anti-gay discrimination into their constitutions. And the numbers are basically the same for efforts to provide basic legal protections to gay people in employment and housing.

    As long as the GOP resists the inevitable (they will eventually come to their senses but not any time soon), gay people will still be denied their basic civil rights. You just have to read the homophobic, hateful comments posted on this and other websites to see that, while it may no longer be cool to be anti-gay, there are still plenty of unrepentant bigots out there.

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