If you had told me two years ago that we would have nationwide marriage equality before we would have job protections for gay, lesbian, bisexual, and transgender citizens, I would have said you were crazy. But that is precisely what will most likely be true by the end of June, when the Supreme Court seems poised to make marriage equality the law of the land.
Think of all the arguments that have been made against marriage equality. While I disagree with their intent to block gay and lesbian couples from the secular, governmental institution of marriage, I at least understand that there are substantive issues involved. (My second book was all about refuting those arguments.) Are we “redefining” marriage? Isn’t marriage a spiritual bond, as well as a contractual one? Aren’t we changing thousands of years of history and culture?
But the arguments against equal protection under the law for all citizens regarding employment, housing, and public accommodation are silly at best. If Americans understand, and believe in, anything, it is fairness.
Apparently, Sam Brownback, governor of Kansas, doesn’t subscribe to that All-American value. Governor Brownback’s predecessor, Kathleen Sibelius, had put into place basic job protections for gay, lesbian, bisexual, and transgender (LGBT) Kansans who worked for the state, prohibiting a Kansas state employee from being fired due to his/her sexual orientation or gender identity. Governor Brownback has now abruptly rescinded that executive order (which of course he has the authority to do), leaving thousands of LGBT state workers in jeopardy. One governor giveth, and another taketh away.
In the years since Sibelius’s action, one has to wonder how many gay state workers put a picture of their same-gender spouse on their work desks, believing they had the right and the opportunity to be more open under her executive order. Those workers are now “out” to their work colleagues and bosses. Can the boss or supervisor now fire them for being gay, with impunity? Does the gay worker now have no recourse in the courts because Brownback changed the rules? It remains to be seen, leaving many in a state of anxiety and insecurity.
It is an astounding and horrifying phenomenon when rights are actually taken away from citizens. It is the overwhelming tradition in our democracy for laws, acts of Congress, and the Constitution itself to give and protect its citizens’ rights, not take them away. It is a grim reminder that the basic civil rights of LGBT people are still up for grabs. It is also a warning to LGBT people and their allies that this battle for equality is not over yet. Just because marriage equality looks to be an inevitable reality waiting to happen, it does not mean that LGBT citizens are equal in every way.
The legal question that will need to be decided by the Supreme Court, at some point, is whether gay, lesbian, bisexual, and transgender citizens constitute a “protected class” of citizens, imbued with the same high bar of “heightened scrutiny” (as with race and gender) when it comes to assessing and enforcing anti-discriminatory protections. At the moment, the Supreme Court has not awarded that higher bar to the LGBT community.
While marriage equality is a reality in 36 states and the District of Columbia (plus about half of Alabama, where some local magistrates are still refusing to issue marriage licenses, despite a judge’s pro-marriage ruling), a gay couple can happily be married and announce their wedding in the local paper, and then be fired on Monday morning by a boss who read that announcement in the newspaper—with no recourse in the courts. That couple can legally be denied a room at the bed-and-breakfast they chose for their honeymoon. When they go to look for an apartment together, they can’t be sure if they “lost” it because of friendly competition or the fact that they were a same-sex couple.
The Center for American Progress has issued an extensive report, “We the People: Why Congress and U.S. States Must Pass Comprehensive LGBT Nondiscrimination Protections,” detailing the many and various ways that gay, lesbian, bisexual, and transgender people are still subject to discrimination in employment, housing, and public accommodation (I was a co-author of this report.) There is still so much to do to ensure that all of our citizens “enjoy” (have a right to) the promised equal protection under the law.
In the meantime, Brownback has shamed himself and his state of Kansas by backpedaling into the discriminatory past. LGBT state workers should not have to worry about being fired from their jobs simply because of who they are and whom they love. Fairness is as American an ideal as we have. If Kansans wants to be a part of the dream of equality that is America, they should demand better from their governor.