Marriage Equality: Not The Cure-All


This has been a good year for marriage rights for the LGBT community in the United States. Since the Supreme Court’s decision in Windsor gutted the so-called Defense of Marriage Act – an unfortunate legacy of the Clinton administration – a tide of legal decisions has washed away state bans on marriage equality. At this moment, thirty-five states offer full access to marriage for same-sex couples, covering nearly two-thirds of the country’s population. Five more states are poised on the brink, and the high court has refused to even take up appeals from the forces of bigotry.

Yet while marriage is an important right that carries many benefits, opening the nuptial doors hardly signals the eradication of homophobia or misogyny. In twenty-nine states, it is still legal to discriminate against the LGBT community in employment, housing, and education. In fact, fourteen of the states that offer marriage equality simultaneously refuse to provide these basic protections (Alaska, Arizona, Idaho, Indiana, Kansas, Montana, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah, Virginia, West Virginia, and Wyoming). And all of the five that are likely to have marriage equality soon (Arkansas, Florida, Louisiana, Missouri, and Texas) allow discrimination based on sexual orientation. This is a horrible disconnect. In practice it means that a couple who celebrate a happy, significant occasion are in fact opening themselves up to more discrimination, perhaps even the loss of their homes or livelihoods. Again, we have a labyrinthine system for LGBT individuals to navigate with a level of risk that can result in loss of income, housing, healthcare, and consequently further targets in their communities.

Employment discrimination sexual orientation in US

This map is current as of 2012. Credit: Creative Commons / Center for American Progress

Knowing which rights are protected and conveyed by one’s home state and which are denied is confusing at best and potentially hazardous. Adding in the layer of rights and benefits provided by the federal government – and the risks associated with claiming them – makes it even harder. People of color, the poor, the disabled, and other targeted and marginalized communities are hit even harder. The intersections of oppression make this confusing, dangerous situation just one more set of barriers standing in the way of equity.

Homophobia and misogyny share deep roots in our culture, which targets and punishes any variance from so-called traditional gender roles and expression – demonstrating again how the varying forms of discrimination intersect. This overlap is also an opportunity, however, as many LGBT employees are using a 1989 sex discrimination case to fight for their rights. Price Waterhouse v. Hopkins held that it was unlawful to discriminate against a person based on how well they fit social norms of gender expression. The Equal Employment Opportunity Commission has agreed in several cases that firing a gay or lesbian employee for not being “appropriately” masculine or feminine violates this protection.

Using this case to fight against employment discrimination of gays and lesbians illustrates how interwoven the threads of discrimination are in our country. Sadly, it is another example of how hard it is to fight for equality and equity. People with limited access to legal resources and without the time and money to fight long battles while struggling to survive cannot take advantage of these nuanced arguments – especially when those battles are not always successful. Our nation desperately needs a fully-inclusive Employment Non-Discrimination Act that prohibits workplace and accommodation discrimination based on sexual orientation, gender identity, and gender expression.

Even though the Senate has passed such a law, the Republican-held House has refused to take it up. With the shift in congressional power moving far to the right, it is unlikely that there will be any action toward equity in the near future. President Obama has used his legal authority to provide some protection, making discrimination in employment illegal for government contractors. That’s a great step and demonstrates his commitment, but it also creates one more confusing set of piecemeal rules. Until the law of the land – ALL the land – provides equal rights and protections, the LGBT community is caught in a web of confusing contradictions, a tangle of rights and risks.

Michael Hulshof-Schmidt teaches at the Portland State University School of Social Work. He is also the Executive Director of EqualityWorks, NW, a company that provides workshops on racial equity and how to stand in solidarity with targeted populations. Follow this link to read more of his work.

8 thoughts on “Marriage Equality: Not The Cure-All

  1. This is such an important point. Marriage certainly matters, but the media treat the marriage equality successes (which still do not benefit everyone) like the end of discrimination. That’s very short-sighted and simply wrong. Thank you for clarifying the very real ways that homophobia, misogyny, and other forms of oppression still affect millions of Americans, even as some much-needed benefits begin to trickle in.

  2. Thank you for sharing this important message. I live in a state where it is perfectly legal to fire someone for their sexual identity. While marriage equality is an important step, it is only the first of many.

  3. So many thoughts. The more things change, the more they stay the same. I’m glad there has been progress, but it IS important to recognize how much more there is to be done. So much of discrimination is born out of fear, and I hope that as people can see LGBT folks living their non-scary lives, we can move towards true equality in all areas.

  4. Thank you for your careful analysis. It’s shameful that there is no clear, universal protection in this country for the basic rights of LGBT people.

  5. The author deftly states the paradox of marriage equality juxtapose the legal patchwork of discrimination and contradictory laws our country not only abides by, but continues in the majority of states, to legally protect. President Obama enacted a modicum of needed change for LGBT citizens, but the future of increased legal protection for this population (indeed, with the change of the US Senate into Republican hands next month) looks even more bleak. However, Mr. Hulshof-Schmidt leaves us with the choice of how we wish to view the future of these yet-to-be-enacted protection with the reader: Do we end this thought-provoking article with the glass half-empty, or with the glass half-full? That answer is up to each and every one of us. The time to hibernate or surrender is not now.

  6. Thank you for such a clear enunciation of this important point. A national law providing this protection is definitely needed. Hearts and minds are changing, but there will always be a need for legal protection from discrimination.

  7. As always, excellent points and exceptional writing by Mr. Hulshof-Schmidt. As indicated, change is occurring, yet not at the desired pace. I do find favorable signs of progress in certain social and political sectors, which I find heartening. Although it is doubtful the House will approve the ENDA, we must maintain the course. As another reader comments, we can see the glass as half-full, and continue to celebrate small steps toward complete equality for all.

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