Last summer, Sen. Rob Portman (R-OH) told ThinkProgress that he opposed the Employment Non-Discrimination Act because he feared it would lead to a lot of litigation, intimidating employers. Since then, Portman has endorsed marriage equality, motivated by what he learned from his son’s coming out. Unfortunately, it seems he still has reservations about granting legal protections to the LGBT community because he believes it will create problems for religious organizations, as he told BuzzFeed Monday night:
PORTMAN: I totally support the concept. This is about discrimination in the workplace. And there should be no discrimination and there ought to be a law in place, in my view. The current version of ENDA that I’ve looked at, I have some concerns about. One, about the litigation that would result because it could be heavily litigated the way it is written.
Second is religious freedom, which is the point I’ve made all through this discussion on gay marriage as I’ve talked about it. I’m also a strong believer in religious freedom and I think an entity that has certain religious tenets should not be required to change those tenets because of this law or others. ENDA has traditionally addressed this issue and I’m sure they will.
Portman’s litigation argument is a red herring. The point of the law is to ensure that LGBT people have legal recourse when employers treat them unfairly because of their sexual orientation or gender identity. If litigation couldn’t result from the law, it would have no point.
Furthermore, the current version of ENDA, introduced just two weeks ago, actually has incredibly sweeping exemptions for religious entities. In fact, any organization that is allowed to discriminate based on religion under the Civil Rights Act of 1964 would be allowed to discriminate based on sexual orientation and gender identity under ENDA as well. These are exemptions to continue discriminating that are not extended to other protected categories, like race, for example.
It remains unclear how else the bill could be tweaked to placate Portman’s concerns — or just how committed he might be to ensuring his son is never fired from a job just because he’s gay.