Equal in Love, but not Yet Equal at Work — the Next Frontier of LGBT Rights

By Jon Hyman

Jun. 29, 2015

Friday was certainly exciting. SCOTUS surprised everyone by releasing Obergefell v. Hodges [pdf] a day earlier than expected.

In case you missed it, in a 5-4 opinion authored by swing-vote Justice Kennedy, SCOTUS held that gay marriage as a nation-wide fundamental right:

The Court now holds that same-sex couples may exercise the fundamental right to marry…. State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

What is getting all the press, however, is the beautifully poetic closing paragraph of Justice Kennedy:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

What is next for LGBT rights? The right to be free from employment discrimination.

Shortly after Obergefell’s publication, Wonkblog published a stirring post calling for the end of all workplace discrimination against LGBT individuals.

Where are we on this issue?

  • 21 states and the District of Columbia ban workplace discrimination on the basis of sexual orientation.
  • 18 of those states also ban workplace discrimination on the basis of gender identity.
  • Per Executive Orders, the federal government, along with its contractors and subcontractors, are also prohibited from discriminating against their employees on the basis of sexual orientation and gender identity.
  • 89 percent of the Fortune 500 include sexual orientation in their non-discrimination policies.

We have come a long way in just the past few years. Indeed, I believe that a majority of Americans now support the extension of all civil rights to the LGBT community. Yet, Congress has consistently failed to act on the Employment Nondiscrimination Act, which would extend Title VII’s coverage to sexual orientation and gender identity. SCOTUS’s ruling in Obergefell is a huge step in the right direction. Let’s hope it is a step that will lead Congress to passing the ENDA sooner rather than later.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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