Informed Citizens. Accountable Power.

Central Question: 

What is the scope of equal protection under the Constitution? What does marriage equality mean under the US Constitution? Within this scope, what kinds of personal choices are so central to individual dignity and autonomy that they should be guaranteed and protected by the state?

Key Terminology: 

Sex-based Discrimination: Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s sex. Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII. (Source)

The Equal Employment Opportunity Commission (EEOC): An agency of the federal government created to enforce laws that prevent discrimination based on race, sex, color, religion, national origin, disability, or age when hiring, firing, or promoting employees. The commission is an independent regulatory body that has the power to launch investigations, file lawsuits, and create programs to eliminate discrimination.

Dignity: A legal term of art developed in US case law. In the context of marriage equality, in Obergefell v. Hodges, 576 U.S. ___ (2015) dignity was invoked as a basis for extending the right to marriage to all people. In this case, the court found: “The fundamental liberties protected by the Fourteenth Amendment extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.” The dissent in this same case argued that ” “The majority distorts the principles expressed by the Framers of the Constitution by portraying human dignity as granted by the government rather than emanating from the individual. The Constitution is meant to provide freedom from government intervention rather than the right to receive a government entitlement.”

Discrimination: In Constitutional Law, the grant by statute of particular privileges to a class arbitrarily designated from a sizable number of persons, where no reasonable distinction exists between the favored and disfavored classes. Federal laws, supplemented by court decisions, prohibit discrimination in such areas as employment, housing, voting rights, education, and access to public facilities. They also proscribe discrimination on the basis of race, age, sex, nationality, disability, or religion. In addition, state and local laws can prohibit discrimination in these areas and in others not covered by federal laws. (Source)

Some Key Legal Authorities: 

Executive Orders (EOs):

EO No. 13782 (2018) The executive order revokes key components of the Obama administration’s previous executive order banning federal contractors from discriminating against employees on the basis of sexual orientation or identity, gay rights advocates say.

 EO No. 13672 (2014) It prohibits discrimination in the civilian federal workforce on the basis of gender identity and in hiring by federal contractors on the basis of both sexual orientation and gender identity.

EO No. 13673 (Fair Pay and Safe Workplaces order)(2014): Required companies that contract with the federal government to provide documentation about their compliance with various federal laws.

Legislative:

• Civil Rights Act (1964)
  • 42 U.S. Code Chp. 21 – CIVIL RIGHTS
  • Subchapter VI EQUAL EMPLOYMENT OPPORTUNITIES (Title VII)
    • Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.
• The Equal Credit Opportunity Act (ECOA) ECOA guarantees an equal opportunity to obtain credit and prohibits creditors from discriminating against credit applicants on the basis of sex, familal status, race, color, religion, national origin, age, or because an applicant receives income from a public assistance program.
• Fair Housing Act (FHA) The FHA prohibits discrimination in the sale, rental, and financing of housing based on sex, familial status, race, color, national origin, religion, and disability. (The Fair Housing Act does not specifically include sexual orientation and gender identity as prohibited bases. However, a lesbian, gay, bisexual, or transgender (LGBT) person’s experience with sexual orientation or gender identity housing discrimination may still be covered by the Fair Housing Act.) (Source)

Case Law:

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U. S. ____ (2018)

Obergefell v. Hodges, 576 U.S. ___ (2015) (Holding: Marriage is a fundamental right to which same-sex couples should have the same access as opposite-sex couples.)

United States v. Windsor, 570 U.S. 744 (2013) (Holding: The section of the federal “Defense of Marriage Act” which limited federal marriage recognition to opposite-sex couples is unconstitutional, and the federal government must recognize all legally married same-sex couples.)

Lawrence v. Texas, 539 U.S. 558 (2003): ​(Holding: Sodomy statutes are unconstitutional; gay, lesbian, bisexual, transgender, and queer individuals have a right to engage in private, consensual sexual conduct.)

Romer v. Evans, 517 U.S. 620 (1996) Holding: Colorado’s anti-gay referendum violates the Equal Protection Clause, reasoning that bare animus directed toward gay individuals is not a legitimate state interest.)

Griswold v. Connecticut, 381 U.S. 479

Other Resources and Materials

• Federal Rights that Protect LGBTQ individuals
• Interactive chart on right at the state level (Updated 2015)