Writing for The Post’s Monkey Cage, New York University professor Patrick Egan highlights the dilemma facing same-sex couples marrying in states without protection from discrimination based on sexual orientation.
Gay people can now get legally married in more states than where they are legally protected from job discrimination. As this map shows, there are now five states — Indiana, Oklahoma, Pennsylvania, Utah, and Virginia — where gay people can get legally married and where it is perfectly legal for an employer to fire someone for being gay.
Since that map was made after the Supreme Court’s action last week, marriage equality has broken out in Idaho, Nevada and West Virginia.
But don’t think this fear of discrimination based on sexual orientation is some abstract concern. Doug Schilling of Iowa wrote to me after reading my post on all the gay couples getting married last week. Noting that his state was the second in the nation to legalize marriage equality, Schilling said he was suing his former employer “who fired me for being gay after I gave my partner a kidney.” Schilling has legal recourse because Iowa prohibits discrimination based on sexual orientation and gender identity.
“I applaud the decision by the court, and hope all goes well,” Schilling wrote in an e-mail, “but I know first hand, that just because we can get married does not mean we are equal.”
What’s needed is employment discrimination protection on the federal level. There was great hope that the Employment Non-Discrimination Act (ENDA) would provide such protection. But the legislation has languished in the House since it arrived from the Senate with 64 votes nearly a year ago. Rising concern over proposed religious exemptions to the bill, combined with dim prospects of passage in the House, have led many LGBT activists and organizations to withdraw their support for ENDA and call for a comprehensive civil rights law that adds sexual orientation to the nation’s anti-discrimination statute. This won’t happen any time soon.
Meanwhile, older same-sex married couples will find themselves in a bind when the need for Social Security benefits arises. Attorney General Eric Holder determined last February that “same-sex marriages valid in the place where the marriage was celebrated” would be viewed as legal under federal law. Unless that law is the Social Security Act, as we learned in June. That’s when the Social Security Administration announced that federal law required it “to follow state law in Social Security cases.” What that means for the partner of a lesbian couple who married in New York state but live in Georgia, where marriage equality doesn’t exist (yet), is that your claim for survivor benefits will be put on hold.
Such inequality in protection under the law, not to mention the economic hardship that could result, cannot stand. Fixing this problem is a job for Congress, which seemingly hasn’t done its job since the arrival in 2011 of the 112th. Two bills in the House and one in the Senate on this issue were introduced this year, but they are going nowhere. That’s why Supreme Court action is needed. A ruling in favor of a constitutional right of same-sex couples to marry would address this issue. So, while it is great to celebrate the jump from 19 marriage-equality states to 35 in the span of a week, none of these victories and the promise they hold will be complete until all 50 states treat legally married same-sex couples equally.
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