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:
…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.