Gay Marriage vs. Anti-Gay Employment Discrimination


Gay marriage is a private matter that opposed persons can ignore; employment discrimination against gays involves an adversary process that a bigoted employer will not ignore.  There is a legal (constitutional) right to marriage, but there is no legal right to a job.


Gay (or same sex) marriage involves only the two people desiring marriage. People opposed to same sex marriage can simply ignore it. Clergy opposed to same sex marriage cannot be required to perform such a marriage because of First Amendment protection for religion. Gay marriage supports the institution by encouraging more people to marry, and does nothing to discourage opposite sex marriage. The institution of marriage increases the stability of society by stabilizing relationships, so adding same sex marriage adds to that stability. Federal judges legalized same sex marriage in most of the states where such marriage is now legal. These judges have lifetime appointments, so they have no fear of being voted out of office, as happened to the Iowa judges who decided in favor of gay marriage.

Religious bigots have begun to use their religious beliefs to harm gay customers by refusing services in retail businesses, but they have not been successful so far. A religious defense for retail services such as bakery or photography against gay customers has not been recognized in public accommodations cases. In August 2013, the New Mexico Supreme Court ruled against Elane Photography’s assertion of that defense, stating that Elane “must serve same-sex couples on the same basis that it serves opposite-sex couples.”

In any event, a Defendant’s religion should require going into such a business or provide a bona fide religious reward for doing so. A failure to demonstrate a connection between the business of photography and its owner’s religion should defeat an assertion of a “religious” defense.

Businesses run by bigots that provide retail services are retaliating against recent gay marriage decisions by using their religion to refuse to serve gay people, especially those in a same sex marriage. The next use of religion to harm gay people is the defense of employment discrimination cases based on the religious beliefs of the employer.

Employment Discrimination pits the employer against a gay employee; it is an adversary process. A bigoted employer cannot be expected to ignore an employee’s or applicant’s actual or apparent sexual orientation. Moreover, such an employer would not be legally permitted to ignore a same-sex marriage of an employee or applicant for employment, since the gay employee would be required to inform the employer of the marriage for payroll and taxation purposes.

There is a legal (constitutional) right to marriage, but there is no legal right to a job. The government may by law provide protection from employment discrimination based on specified classes such as race and sex, but it’s up to each individual to find a job. If a class such as “sexual orientation” is not mentioned in an employment discrimination law, then members of that class – gays and lesbians — are not protected.

Many states have non-discrimination laws that protect gay people in public accommodations and employment, but there is no federal protection yet. ENDA (The Employment Non-Discrimination Act) – Senate Bill 815, passed in 2013, exempts all religious organizations from coverage of sexual orientation and gender identity. Passage in the House is blocked by Speaker Boehner, but a discharge petition has almost 200 signatures. (218 are needed.) An interesting issue will be exactly what constitutes a “religious organization”. As far as I know, a religious defense has not yet been recognized in employment discrimination cases, except for the rights of churches to hire and fire their ministers. In any event, an employer’s religious beliefs should actually require him or her to operate a business or provide a bona fide reward for doing so before a religious defense can be asserted. The Hobby Lobby case should not be extended to employment decisions.

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