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Posts from Joshua Newville, a Minnesota employment lawyer, civil rights attorney, and mediator.

SCOTUS Kills DOMA and Prop 8; Sexual Orientation Discrimination Lives On

It’s been a busy week for employment law and civil rights. The impact of the past week’s Supreme Court decisions on these two areas of law cannot be understated. The Voting Rights Act was gutted, killing protections put in place to prevent discrimination at the ballot box. The Civil Rights Act was substantially weakened, stripping minority employees across the country from access to Title VII remedies. And although the news for same-sex couples was brighter, the Court’s narrow decisions on that front leave much work to be done in the struggle for equality.

Wednesday, the Supreme Court released its decisions in United States v. Windsor (the “DOMA” case) and Hollingsworth v. Perry (the “Prop 8” case). These two cases each had the potential to become landmark civil rights precedent, with monumental significance for gay and lesbian Americans; they were heralded by pundits as the most important civil rights cases of our generation.

Indeed, the decision in Windsor will go down as one of the most significant decisions in Supreme Court history; it struck at the heart of DOMA and declared gay and lesbians deserving of equal protection under the law. The Court’s decision in Perry, on the other hand, will soon be brushed into the dusty corners of irrelevance; in that case, a group of five strange bedfellow Justices entirely ducked the question of whether same-sex couples are entitled to marriage equality. Thus, the struggle for gay civil rights marches on – and there is a lot of ground to cover.

Make no mistake about it: Wednesday was a win – a win for same-sex couples in 13 states, gay and lesbians in general, for civil rights, and for the principles of equality, morality, and human dignity. But, by the same token, the Court’s failure to reach the merits of the Prop 8 case also makes Wednesday a disappointment for millions of gay Americans, including same-sex couples in 37 states who continue to face discrimination by their government and the resulting stigma that they are less equal than their neighbors.

Understanding the reasoning, nuance, and the implications of these rulings is not a simple task. But, when put against the backdrop of the myriad barriers still preventing gay and lesbians from being full and equal citizens, it is clear that there is much work to be done. Some of that work will be made easier by Wednesday’s decisions, but most of it wasn’t even touched. Consider:

Same-sex marriages performed in one of the 13 marriage equality states need not be recognized in 37 states.

Windsor did not address Section 2 of DOMA. As a result, none of the 37 states without marriage equality are required to recognize same-sex marriages performed in a state that does, despite being required to do so for heterosexual couples. Furthermore, a complication arises as to which state’s marriage law should hold, in terms of federal recognition, for couples who move from a marriage equality state to one with marriage inequality. Consider this from page 20 of Justice Antonin Scalia’s dissent in Windsor:

“[D]ifficult choice-of-law issues. . . will now arise absent a uniform federal definition of marriage. Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.”  When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law?”  (internal citations omitted) (emphasis in original).

The Constitution’s Full Faith and Credit Clause requires that States honor the laws of other States. Thus, unless Congress chooses to overturn Section 2 of DOMA with passage of the Respect for Marriage Act, it will remain ripe for a constitutional challenge based on full faith and credit. Federal appellate litigation is expensive, time-consuming, and complicated; it would take longer to see results from the courts than it would for Congress to act, which will most likely happen only if Democrats take control of the U.S. House and retain Senate control in 2014. In other words: prepare for an onslaught of litigation in every one of the 37 marriage inequality states.

Thirty States still have amendments that enshrine discrimination against gay and lesbians in their constitutions. 

That number was 31 on Wednesday morning. So, while it is absolutely worth celebrating that Proposition 8 was killed by the Court’s decision in Perry, it is also important to remember that the Court didn’t actually address the constitutionality of such amendments. As a result, they remain the law of the land in thirty States that currently have them. Because they are enshrined in constitutions, which are typically reserved for the absolute most important of laws, they are extremely difficult to overturn. In most States, the process takes many years, can require legislative and/or executive action, costs an exorbitant amount of money, and requires majority approval at the ballot box. There are also seven States that have not legalized same-sex marriage and do not have a constitutional ban in place; because the Court didn’t address the substantive issue in Perry, some of those States may now seek such bans. Repealing those bans by constitutional challenge is almost as time-consuming as the legislative process. Nonetheless, in light of the Court’s opinions in Windsor, Romer, and Lawrence, expect such challenges to begin popping up across the country. Again, from page 23 of Justice Scalia’s bitter dissent in Windsor:

“How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status . . .  As far as this Court is concerned . . . it is just a matter of listening and waiting for the other shoe.”

The majority of States do not allow gay couples to adopt.

Neither of Wednesday’s opinions address the constitutional right of same-sex couples, or gay and lesbians in general, to adopt children. The message sent by blocking same-sex couples from adopting is that they are a threat to children. That heart-wrenching and discriminatory restriction deprives children of loving, willing, and capable families; it also strips gay and lesbians of their dignity as equal human beings. The Court’s failure to explicitly elevate the level of scrutiny it gives to laws that target sexual orientation means that such restrictions are likely to live on for the foreseeable future.

In twenty-nine States, it is perfectly legal to fire an employee simply because they’re gay.

Various state and federal laws prevent both public and private employers from discriminating against employees on the basis of race, sex, national origin, disability, and religion. Thanks to Windsor and Romer, public sector employers are at least constrained by the Equal Protection Clause from irrationally discriminating on the basis of sexual orientation. See, e.g., Sean Lathrop v. City of St. Cloud, et al. But, the only remedy available for public-sector victims is to file a federal lawsuit, which is often prohibitively expensive, complicated, and time consuming. What’s worse, the vast majority of employees work in the private sector — where, in 29 States, there is absolutely no protection from sexual orientation discrimination. Unless the Employment Nondiscrimination Act is passed (which seems unlikely as long as Republicans retain control of the House), or until those States provide state-level protection, hardworking gay employees can face rampant and unchecked discrimination.

Federal law ignores discrimination of gay and lesbians in housing.

By not including sexual orientation in the anti-discrimination provisions of federal housing law, Congress has explicitly left the door open to what is a known problem: gay people, particularly gay male couples, have doors (literally and figuratively) slammed shut while searching for a place to call home.

Gay men aren’t allowed to give blood. That’s right; for no other reason than being gay, men across the country are treated like disease-ridden monsters when they even think about giving blood. Based on an outdated belief that only gay men are vessels for AIDS, and despite screening equipment and procedures meant to stop bad blood from making it into our nation’s blood supply, gay men are flatly banned by federal law from even attempting such altruism.

GLBT individuals can be denied healthcare simply because of who they are.

Studies show that LGBT persons are denied healthcare because of their identities. Without federal legislation prohibiting such discrimination, it will surely continue.

As you can see, not only is there a significant failure of legislation protecting minorities to include sexual orientation, but there are still many laws that outright declare gay and lesbians as less equal. Beginning to overcome some of these hurdles will be slightly easier in light of Wednesday, but we must not forget that as each day passes, our gay and lesbian friends, coworkers, neighbors, children, and other family members are forced to live in a world where they are considered less than equal citizens.


Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.


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