United States v. Windsor: A Tipping Point in the Battle for More Inclusive Statewide Employment Discrimination Policies?

by Sarah B. Wheeler

The Defense of Marriage Act (hereinafter, “DOMA”), which became law in 1996, contains two main substantive sections.[1] Section 2, entitled “Powers Reserved to the States,” provides in sum that no state will be required to recognize a same-sex marriage that was legally performed in another state, if same-sex marriage is not also recognized in that state.[2]

Section 3 lists the “Definition of Marriage” as:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.[3]

Effectively, Section 3 of DOMA “defined marriage for federal purposes as between one man and one woman”[4] (emphasis added). Both sections of DOMA have remained continuously in effect since 1996,[5] until the recent decision in United States v. Windsor.[6] In Windsor, the Supreme Court held Section 3 of DOMA unconstitutional.[7] However, the Court’s decision did not address any issue related to Section 2, as this was not brought before the Court.[8]

In the wake of the Windsor decision, a number of rulings have been issued[9] overturning state bans prohibiting same-sex marriage. Similarly, previously undecided cases on the issue were subsequently decided in favor of plaintiffs who challenged state laws prohibiting same-sex marriage.[10] For example, the plaintiffs in Bishop v. Smith[11] brought a case against the Oklahoma state law prohibiting same-sex marriage. Ultimately, the United States Court of Appeals for the 10th Circuit held in Bishop that the Oklahoma law, prohibiting same-sex marriage, was unconstitutional.[12] Similarly, in Kitchen v. Herbert, a Utah state constitutional amendment, that defined marriage as a union exclusively between a man and a woman, was held to be unconstitutional.[13] On October 6, 2014, the Supreme Court denied certiorari[14] for both cases, as well as five other cases, regarding issues of marriage equality.[15] These denials allowed that Circuit’s decision “recognizing a constitutional right to same-sex marriage to stand, clearing the way for marriage equality in all of the states within that Circuit.”[16]

The overturning of Section 3 of DOMA has broad implications not just for marriage equality, but also for employment discrimination policies.[17] An increase in challenges to state constitutional bans on same-sex marriage has not, however, translated into a marked increase in the number of challenges to statewide or citywide employment discrimination policies that do not include sexual orientation or gender identity in the protected categories.[18]

On the national level, the policy appears to be toward promoting the abolishment of these types of laws.[19] Not long after the Windsor decision, President Obama issued an executive order prohibiting federal contractors from engaging in employment discrimination on the basis of sexual orientation.[20] Despite this executive order, to date there has been no federal legislation enacted, much less proposed, to ban “on-the-job discrimination based on [the basis of] gender identity.”[21]

What remains to be seen is whether there will be an uptick in challenges to non-inclusive statewide and citywide employment discrimination policies. Thus far, only one challenge in these parameters has been made. In Kansas, the Roseland Park city council recently ruled to include “gender identity” in their anti-discrimination policy.[22] However, even in that instance, the challenge was a close call.[23] The city’s mayor broke a 4-4 tie within the city council.[24] To put Roseland Park’s ruling in perspective, only one other town in the entire state of Kansas now currently includes “gender identity” in its anti-discrimination laws that are inclusive of employment discrimination laws.[25]

[1] Family Research Council, http://www.frc.org/understandingwindsor (last visited Oct. 12, 2014) (stating “DOMA had two substantive provisions: Section 2 . . . and Section 3.”).

[2] See 28 U.S.C. § 1738C (1996) (providing that “[n]o State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”).

[3] 1 U.S.C. § 7 (1996).

[4] The Imminent Demise of Section 2 of the Defense of Marriage Act, Justia, http://verdict.justia.com/2013/08/12/the-imminent-demise-of-section-2-of-the-defense-of-marriage-act#sthash.PjSdVwME.dpuf (last visited Oct. 12, 2014).

[5] Caitlin Sandley & Stanford Moore, Windsor May Have Paved the Way for Intermediate Scrutiny of DOMA, American Bar Association (Feb. 11, 2013), http://apps.americanbar.org/litigation/committees/civil/articles/winter2013-0213-windsor-may-have-paved-way-intermediate-scrutiny-doma.html.

[6] United States v. Windsor, 133 U.S. 2675, 2696 (2013).

[7] Id. at 2696.

[8] Id. at 2683.

[9] History and Timeline of the Freedom to Marry in the United States, Freedom to Marry, http://www.freedomtomarry.org/pages/history-and-timeline-of-marriage (last visited Oct. 12, 2014).

[10] See Bishop v. Smith, 2014 U.S. App. LEXIS 13733 (10th Cir. Okla. 2014); see also Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013).

[11] Bishop, 2014 U.S. App. LEXIS at 13733.

[12] Id.

[13] Kitchen, 961 F. Supp. 2d at 1181.

[14]Adam Liptak, Supreme Court Delivers Tacit Win to Gay Marriage, N.Y. Times (Oct. 6, 2014), at A1, available at http://www.nytimes.com/2014/10/07/us/denying-review-justices-clear-way-for-gay-marriage-in-5-states.html?_r=0.

[15] Id.

[16] Baskin v. Bogan (7th Cir.), Constitutional Accountability Center, http://theusconstitution.org/cases/baskin-v-bogan-7th-cir (last visited Oct. 12, 2014).

[17] See Id.

[18] See Kansas town bans discrimination based on sexual orientation, gender identity, LGBTQNATION (Aug. 5, 2014), http://www.lgbtqnation.com/2014/08/kansas-town-bans-discrimination-based-on-sexual-orientation-gender-identity/.

[19] See Allissa Wickham, EEOC Files Historic Sex Bias Suits For Transgender Workers, LAW360 (Sept. 25, 2014), https://www.law360.com/articles/581182/eeoc-files-historic-sex-bias-suits-for-transgender-workers (last visited Oct. 12, 2014); see also DOL Releases Final Rule To Hike Contractor Minimum Wage, LAW360 (Oct. 24, 2014), http://www.law360.com/articles/583638/dol-releases-final-rule-to-hike-contractor-minimum-wage (“Obama signed an executive order barring contractors from discriminating based on sexual orientation or gender identity.”).

[20] DOL Releases Final Rule To Hike Contractor Minimum Wage, supra note 19.

[21] Id.

[22] Kansas town bans discrimination based on sexual orientation, gender identity, supra note 18.

[23] Id.

[24] Id.

[25] Id. (stating that Lawrence is the only other city in Kansas that includes this in its anti-discrimination laws).

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