Last week’s Supreme Court decision establishing a constitutional right to same-sex marriage may pose a conundrum for future historians: Why did it precede a federal law outlawing discrimination against gay men and lesbians in employment? After all, there was intense opposition to same-sex marriage among many religious traditionalists, who view it as sacrilege. Discrimination against gay men and lesbians in hiring, by contrast, can’t easily be opposed on religious grounds and hasn’t excited the kind of intense opposition that same-sex marriage does. But a bill introduced two decades ago by Sen. Edward M. Kennedy (D-Mass.) and Rep. Gerry Studds (D-Mass.) — the Employment Non-Discrimination Act (ENDA) — that would have banned such discrimination has yet to be enacted.
Part of the answer must surely be that both houses of Congress overrepresent rural and conservative regions that are more homophobic than the rest of the country. (The Senate’s overrepresentation is embedded in the Constitution; the House’s has been exacerbated by Republican gerrymandering). Twenty-two states have enacted their own versions of ENDA, but those states’ senators don’t make for a Senate majority. Nonetheless, in 1964, a Congress also overrepresenting rural and conservative regions passed the Civil Rights Act, banning employment and public accommodations discrimination based on race, religion and gender. That preceded by three years the Supreme Court’s striking down bans on interracial marriage. A half-century ago, employment discrimination was the first to fall, while the right to marry followed. In our time, for gay men and lesbians, the right to marry has arrived first.
This isn’t just an accident of timing. The past 50 years have seen a steady rise in individual rights, save in one crucial dimension: employment. In that arena, the rights and power of workers have declined, while those of employers have grown. Americans can’t be fired for being black or Latino, Jewish or Muslim, female or — let us hope, one day soon — gay or lesbian. But they can be fired at their employer’s whim. If they seek to join together in a labor union, they can be fired, and routinely are, by employers who face none of the penalties they’d face for firing workers for reasons of race, religion or gender. To be sure, Congress gave workers the legal right to form unions in 1935, but that right has steadily eroded over the past 40 years. Employer penalties for violating the Civil Rights Act are substantial; those for violating the National Labor Relations Act are negligible.
This disjuncture between civil rights and economic rights is key to understanding how the United States has become more egalitarian socially yet more unequal economically. Where once workers could bargain with employers for their share of the revenue they produced, such bargaining has all but vanished from the private sector. Indeed, the bargaining that goes on today more commonly takes place between company executives and “activist investors” who demand a greater share of company profits for themselves lest they attempt to unseat those executives. The power of ownership — even when owners merely hold company stock for a few months — has run amok, keeping corporate executives from investing more in new facilities, research and development, and employee raises. It’s gotten so out of hand that more and more Silicon Valley tech companies are refusing to go public, lest activist shareholders demand the companies divert funds from investments to dividends.
While the Supreme Court clearly advanced social egalitarianism with its decision on same-sex marriage, its record on economic egalitarianism is, at best, much more checkered. In Citizens United and other rulings, the court moved the nation toward a “one dollar, one vote” standard by giving big money vastly more power to dominate elections and, concomitantly, public policy. And on Tuesday, the court announced it will hear the case of Friedrichs v. California Teachers Association in its next session, which could lead to a decision that strips from public-sector unions the right to collect dues from the workers they represent in bargaining contracts and in their disputes with management. (Such workers are already exempted from paying that portion of their dues that goes to the unions’ political activities.)
The effect of such a ruling could substantially shrink those unions and their ability to win decent pay and benefits for the cops, firefighters, teachers and nurses they represent, and who increasingly constitute what remains of the dwindling middle class. Should the court, in Friedrichs, discover a right to avoid paying dues despite services received, that middle class would take one more devastating hit. A newfound friend of social equality, the court may yet remain the handmaiden of our rising economic inequality.