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The next front in battle over gay rights
By Lydia Wheeler – 07/05/15 01:38 PM EDT
The Supreme Court’s ruling on gay marriage opens the door to host of new benefits for same-sex couples, but claiming them means coming out of the closet to employers who may not share the court’s opinion.
That’s why gay rights advocates are hoping to ride the momentum of the court’s landmark decision and push for workplace protections they say are needed to allow gay and transgender people to live openly.
“People do have to live in fear,” said Matt McTighe, campaign manager for Freedom for All Americans. “Now you can go get married, but to come to work and live openly as a married person means you are coming out and that could be a real problem for people who work in organizations that are not supportive.”
In the fight for nondiscrimination laws, Freedom for All Americans plans to follow the same general playbook that Freedom to Marry, the group it’s modeled after, used in the fight for marriage equality.
Though the new group has a separate leadership structure, it plans to tap many of the same donors that funded the push for legalized gay marriage.
But the endgame will be different, with advocates planning to target Capitol Hill, rather than the courts.
“The only way to gain fully guaranteed statutory protections is to get something passed through Congress,” McTighe said. “Unlike marriage, which we knew would be decided by the court, this is going to take an act of Congress that the President will need to sign.”
On the heels of the Supreme Court ruling, Rep. David Cicilline (D-R.I.) and Sen. Jeff Merkley (D-Ore.) announced plans to move forward in the coming weeks with legislation to protect LGBT employees.
The measure would add gender identity and sexual orientation to federal statutes that now only prohibit discrimination on the basis of race, color, religion, sex or national origin. The effect, Cicilline said, would ensure that LGBT Americans are free from discrimination in employment, housing, public accommodations, education and jury service.
The group also plans to take the fight to states around the country, which have widely disparate statutes on their books.
The District of Columbia and 17 states — California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington — have broad laws that prohibit discrimination on the basis of sexual orientation and gender identity.
Another three states — New Hampshire, New York and Wisconsin — have similar policies in place, though they exclude transgender people. Two states —Massachusetts and Utah — offer protections, but only in employment and housing.
In 28 states, there aren’t any protections for LGBTs.
The Supreme Court’s ruling has no bearing on employment law in those states, because the same-sex marriage case questioned only whether states were acting unconstitutionally by enacting state bans on the practice.
“If a private employer fires someone for being gay, there is no state action so there’s no impact,” said Neal Katyal, a partner at the law firm Hogan Lovells, who formerly served as Acting Solicitor General for the U.S.
“This decision doesn’t have a strict legal impact in the private employment sphere, but it is a huge shot in the arm, a huge boost, to those fighting for anti-discrimination laws at the state and federal level.”
Those who opposed same-sex marriage are prepared to fight any initiative to implement laws they believe would infringe on their own rights and religious beliefs.
“One of the first things that the pro–life movement did after Roe v. Wade was protect the right of conscience for all American citizens to never have to pay for an abortion or perform an abortion if it violated their beliefs,” noted Ryan Anderson, a senior fellow at the conservative Heritage Foundation.
“So in the same way, the pro-marriage movement will need to protect our rights not to be coerced or discriminated against by the government into violating our belief that marriage is between a man and a woman.”
Anderson said pro-life advocates have never accepted Roe v. Wade as the final word about abortion, just as pro-marriage advocates should not accept Obergefell v. Hodges as the final word about marriage.
But gay rights advocates, believing they have the wind at their back, intend to push an even more ambitious agenda, one that includes an increasingly visible transgender community.
“I think the root of almost all discrimination based on our sexual orientation is because we are not conforming to proper gender norms,” Kate Kendell, executive director for the National Center for Lesbian Rights, said.
“If we can make headway in having there be an understanding that gender identity is non-threatening, not only will we see significant gains in protections for the transgender community, but there will be a rebound benefit for lesbian, gay and bisexual individuals as well.”