We won on marriage. Hiring and housing discrimination are next.

On Friday, the Supreme Court ruled that the 14th Amendment’s Due Process Clause prohibits states from denying same-sex couples the right to marry.

After a weekend of celebrating, the LGBT movement now has to remind the country that it’s not over. We won marriage equality on Friday, but we didn’t win full equality. There are a number of cultural, political and legal battles left to be waged in order to make that happen.

As Erik Eckholm outlined in The New York Times on Saturday, these next battles lie in similar forms of discrimination that lie in the hiring and firing of employees, as well as the renting and purchasing of homes:

Nationally, antidiscrimination laws for gay people are a patchwork with major geographic inequities, said Brad Sears, executive director of the Williams Institute at the School of Law of the University of California, Los Angeles. “Those who don’t live on the two coasts or in the Northeast have been left behind in terms of legal protection,” he said.

Eckholm also quoted Oregon Senator Jeff Merkley, who will soon introduce legislation adding sexual orientation and gender identity to the Civil Rights Act, as saying that “People are going to realize that you can get married in the morning and be fired from your job or refused entry to a restaurant in the afternoon. That is unacceptable.”

The arguments against employment and housing discrimination are the same as those against marriage discrimination, with one possible exception. Allowing same-sex couples to marry has no impact on the lives of opposite-sex couples, no matter what claims the Heritage Foundation pulls out of thin air. However, prohibiting private companies and individuals from making business decisions based on the sexual orientation or gender identities of those with whom they do business does have a material effect on those businesses. It may be a positive effect, as many companies that have proactively enacted LGBT protections into their own hiring practices have learned, but it’s an effect nonetheless. In winning hiring and housing equality, the LGBT movement is going to have to convince the public, and the courts, that restrictions on the actions of private citizens and businesses such that they don’t discriminate based on sexual orientation or gender identity are restrictions we can live with.

Of course, much of that debate has already been won. The majority of Americans already think it’s illegal to fire someone for being gay. They’re wrong, at least if they live in one of the 28 states that does not yet explicitly prohibit the practice, but as the LGBT movement directs more energy toward highlighting the stories of those who have been fired for being gay, or not hired in the first place, that will change. Bills like ENDA, which would ban employment discrimination on the basis of sexual orientation or gender identity for businesses with at least 15 employees and has been introduced in all but one Congressional session since 1994, will attract more more attention. It will be a bigger deal when John Boehner kills it in this session than when he did in 2013.

Legislation aside, hiring discrimination could face a more complete death in the court system. As Eckholm continues:

ENDA protest, via Matt Baume / Flickr

ENDA protest, via Matt Baume / Flickr

…the Equal Employment Opportunity Commission, charged with enforcing federal law in the workplace, has determined that discrimination against gay men, lesbians and transgender people amounts to illegal sex discrimination under Title VII of the Civil Rights Act, and it is bringing or endorsing lawsuits under that provision.

That application of existing law is still being tested in court and is more established for transgender workers than for gay and lesbian workers. In the past two years, the agency has successfully pursued 223 cases involving gay or transgender people who faced workplace harassment or other discrimination, gaining settlements or court orders, said Chai R. Feldblum, one of the agency’s five commissioners.

The Supreme Court’s ruling on Friday could expedite that process. In framing his controlling opinion in the context of equal protection based on sexual orientation as opposed to, say, gender, Justice Anthony Kennedy opened — without explicitly walking through — the door of classifying LGBT citizens as a protected class. The ruling cites the 14th Amendment’s protections for “certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.” That doesn’t go as far as to define sexual orientation and gender identity as unalterable demographic assignments establishing classes of citizens, such as race or gender assigned at birth, but future non-marriage cases could use Kennedy’s opinion as a springboard in order to convince future courts to make such a definition.

Either way, that passage should be enough to argue that firing someone, or denying them an apartment, based on their “intimate choices defining personal identity and beliefs” should be illegal.

We’ll find out soon enough.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • emjayay

    Like age discrimination and all the rest, these things are hard to prove on an individual basis.

  • emjayay

    It’s more like necessary tantrums they have to go through. A show of defiance that will eventually go away.

  • Hue-Man

    How does that go? “It’s hard to make predictions, especially about the future”

    Your points are valid. I would only add that religion will make the fight for equality in employment, housing, etc. even more difficult. An employer refuses to hire gays because their sinful ways are contrary to his religious beliefs. Landlady kicks you out of apartment when she learns that you’re transgender because it’s against her holy book. Hobby Lobby is a scary portend of what could develop.

    Most other Western countries adopted non-discrimination laws because it’s pretty obvious that all people should be treated equally and fairly in employment, housing, and services. My crystal ball says that the losers in the USA will drawn a line in the sand on every attempt at ENDA type legislation.

    I hope I’m wrong.

  • MaryNGatlin
  • The_Fixer

    You make some good points. You may well be right, and I may be kidding myself in thinking that these things may come easier than marriage equality.

    My reason for thinking that way has to do with the fact that our opponents have characterized this as an attack on religion (especially the one that they think is “right”, namely their own). Religion is a personal thing and a person’s attitude about it is a pretty defining thing. To a lot of people in this country (it being a de facto Christian nation, with all that implies), a threat to their religion is a serious thing.

    Luckily, a lot of straight people came to the realization that gay people are not out to destroy their religion, and came to think that gay people were no threat to them or their values. This morning I read an article by an evangelical pastor who thinks that it’s a natural and good thing for churches to embrace gay marriage, Another article on Yahoo! had a headline of “Meet the Evangelical Preachers Who Embrace Gay Marriage.” It’s clear that the rank-and-file did not buy into the fear, once they got to know us.

    These other civil rights we seek aren’t quite as personal as changing your thinking about religion and marriage, but I see your point that they’re a more direct experience. Yes, if you hate gay peole and have a Lesbian neighbor with whom you must interact, then that’s going to affect your thinking, certainly not in a good way.

    I guess we’ll find out soon enough. I am just glad that there’s more decent straight people in this country than there are jerks. Because of that, we have a chance.

  • FLL

    We’ll see a lot of bigots in Southern states scramble to carve out as many legal scenarios for discrimination as they can. Somehow, I think that will backfire. The motto, splashed across headlines, will be “Get married, get fired.” After all, marriage is part of public record, and bigots in any company—in the South or anywhere else—can easily snoop around the county clerk’s office or the Internet to find out if one of the employees is married to a same-sex partner. It just feels like the sort of bigoted scheme that backfires and only winds up gaining more sympathy for gay rights in the South.

    Today’s Southern bigots are cut from the same cloth as those of the 1950s and early 1960s, who were 100% Dixiecrats. The term “Dixiecrats” is, of course, obsolete and only historic. As a result of the Civil Rights Era and Nixon’s “Southern strategy,” the bigots in Southern states turned Republican and bigots down South remain entirely Republican to this day.

  • Hue-Man

    I miscommunicated – I wasn’t advocating going out of state to get married only pointing out the irrationality of their position. They’ll cave soon enough.

  • Not everybody has the means to travel across state lines to marry…and in any case, no straight couple will face this problem, making it discriminatory against gay and lesbian families.

    Suggesting people go hunting for someone willing to do their job as a county clerk is about as helpful as telling gay people simply not to join the armed forces. Or telling an African American family there are plenty of restaurants to eat in, why make a fuss about a Woolworth’s lunch counter and its no-blacks policy.

    Surrendering to bigotry is never a good idea.

  • Fortunately the 2020 elections will be in a presidential year so there’s some chance that Democrats might actually show up at the polls unlike off-year elections like 2010 when they didn’t and turned the states (and their redistricting processes) over to the GOP. there’s not much chance of winning back the House until at least 2022 unless there is a massive victory for Democrats unlike any we’ve seen in decades.

  • Bill_Perdue

    ENDA or a CRA should be what we fight for instead of futile attempts to reform a political system owned by the rich.

  • Bill_Perdue

    It actually should have been a focus all along but our attention was diverted by hamfisted attacks on our right to marriage equality by the Clintons, the Bushes and in 2008, by Obama.

    They lost and the movement grew grew in size and militancy as a result.

    https://www.youtube.com/watch?v=N6K9dS9wl7U

  • Bill_Perdue

    The same thing happened after passage of civil rights and voting rights bills in the 1960’s. Democrat/Dixiecrats voted against them and since then have conspired to limit what were always weak bills.

    We can expect the same thing this time around.

  • Bill_Perdue

    They have a powerful impact on the ability of companies to pay lower wages, which is why the Democrats Lyon pass measures like ENDA when they have no chance of being enacted.

  • Agreed. The partisan rat-fuckery known as decennial gerrymandering needs to be ended.

  • Hue-Man

    I think employment, housing, and services will be even more difficult because they have a direct, personal impact on gay-haters. An employer has to put up with a lesbian with pictures of her wife in her cubicle, the landlord has to allow gays to desecrate his apartment building, the dry cleaner has to handle the transgender person’s clothing, etc. If dalits can marry, it doesn’t affect you; if they show up at your workplace, it’s a completely different matter.

  • Hue-Man

    It’s just for show; if you can afford it, go to any marriage equality state to get married. SCOTUS says the gay-hating states have to recognize your marriage. Besides, the local marriage industry will point out how much tax revenue is being lost to other states.

  • dcinsider

    Interestingly enough, we came a lot closer to those goals this morning when the Supreme Court ruled that redistricting commissions are constitutional. THAT needs to be our next goal. We can’t pass ENDA with the current districts as they are in place. We could win if an independent commission drew the districts in every state, taking away the gerrymandering that results in a Congress that disproportionately represents a conservative agenda not shared by the majority of Americans.

    If we can accomplish that goal, the rest of the goals will flow.

  • Don Chandler

    Next up: Annex Austin movement.

  • bkmn

    None of this will happen legislatively unless we get rid of the GOP majority in congress. That means we need everyone to get out and vote.

  • 2patricius2

    Discrimination in employment, housing and access to public accommodations. This would cover jobs, housing, and the publicly licensed businesses that want to use personal religious beliefs to refuse services to LGBT people.

  • Agreed totally — hiring and housing should be next. But at the risk of harping on it, we won on marriage equality, but the homophobes are already trying to find ways to take it away. For example, Texas AG Ken Paxton basically saying they don’t feel bound by the Supreme Court decision and that county clerks and other employees should feel free not to issue or register marriage licenses.

    http://talkingpointsmemo.com/livewire/ken-paxton-clerks-refuse-gay-marriage

    The next few years at least are going to be filled with court injunctions and challenges, as well as a number of states looking to undercut marriage rights through Christianist supremacist laws. It can go on for a very long time, too — just a few years ago, there were apparently some Justices of the Peace who wouldn’t allow mixed-race couples to marry.

  • The_Fixer

    In the back of my mind, I thought about this while joyfully celebrating the Supreme Court ruling.

    Discriminiation in employment and housing are two key areas that need to be addressed – obviously, you can’t live without both. I honestly think that these things will come a bit easier than the marriage equality victory. Marriage equality was a tough nut to crack, but as has been pointed out, precedent in that area paves the way for these things. I wonder if it would have been more difficult if we had tried for ENDA first, for example, rather than marriage equality? Tough to say, but I think it would have been more difficult if we had tackled ENDA first. Of course, that’s just a guess on my part, and it’s kind of a moot point now that we are where we are in the process.

    Now that we’re talking about these things in light of the marriage equality decision, I want to say how much I appreciate my straight friends and all of the straight allies who have stood beside us in this fight. I and others have made much of the history of the movement, and the LGBTQ figures who’ve been tirelessly advocating on our behalf. However, it is doubtful that we could have gotten to this point without the assistance and advocacy of our straight brothers and sisters. Thank You all for your work on our behalf.

    Yay Straight People! :)

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