Marriage Equality, Workplace Inequality: The Next Gay Rights Battle

58 Pages Posted: 3 Oct 2015 Last revised: 13 Dec 2016

Date Written: 2015

Abstract

Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.

This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.

Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.

Keywords: same-sex marriage, gender theory, harassment, sex discrimination, constitutional law, Title VII, equal protection, narrative , framing

JEL Classification: J71, J78, K42

Suggested Citation

Cunningham-Parmeter, Keith, Marriage Equality, Workplace Inequality: The Next Gay Rights Battle (2015). Florida Law Review, Vol. 67, p. 1099, 2015. Available at SSRN: https://ssrn.com/abstract=2668366

Keith Cunningham-Parmeter (Contact Author)

Willamette University - College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States
(503) 370-6609 (Phone)

HOME PAGE: http://www.willamette.edu/wucl/faculty/profiles/cunningham/index.php

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