How the Obama position on DoMA will strengthen public employment rights

By Nan Hunter -

Following are excerpts from a column posted on Bilerico by former Hill staffer Tico Almeida:

...[C]onsider the hypothetical examples of a lesbian employee of the Alabama State Department of Agriculture, a gay male employee of the Arizona State Department of Transportation, and a bisexual employee of the Alaska State Department of Tourism. These three states have more in common than alphabetical privilege. Alabama, Arizona, and Alaska each currently lacks a state ENDA statute that protects against discrimination based on sexual orientation. As noted, there is no federal ENDA statute either.

As of today, the lesbian employee in Alabama can be fired just because she is a lesbian. The gay employee in Arizona can receive lower pay and fewer promotions just because he is gay. The bisexual employee in Alaska can be severely harassed and subjected to hostility just because he is bisexual. Without a state ENDA statute or the proposed federal ENDA, these three employees would have very little to absolutely no legal recourse for sexual orientation discrimination in either state or federal court.

Now imagine that the U.S. Supreme Court eventually agrees with President Obama and Attorney General Holder that gays and lesbians deserve "heightened scrutiny." At that point, the lesbian employee in Alabama, the gay employee in Arizona, and the bisexual employee in Alaska have a far greater chance of successfully arguing in federal court that the discrimination by their employers - each one a state government actor - was a violation of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

Under current constitutional law, it is possible, though sadly unlikely, that a gay or lesbian employee of a state government could win this type of constitutional case based on the lower level of constitutional protection called "rational basis review." Some plaintiffs have won cases at this lower level of protection, but it is such an uphill climb that victory is the exception and not the rule. The spillover effect of the Obama Administration's decision to argue for "heightened scrutiny" in the DOMA cases is that these three hypothetical employees would have a far greater chance than they currently do of winning their lawsuit based on sexual orientation discrimination and securing justice in the workplace - even if neither a state ENDA nor the proposed federal ENDA has passed yet...

How Obama's DOMA Position Will Help Gay and Lesbian Workers After ENDA Passes

It is probable that within the first year after ENDA is passed by Congress and signed by the President, a conservative state Attorney General will file a motion as a defense to an ENDA lawsuit in federal court contending that ENDA is unconstitutional as applied to state government employers. Imagine a Republican Attorney General of Texas or Oklahoma, up for re-election, and seeking to prove to voters his anti-gay and pro-states-rights bona fides by pushing a case to the U.S. Supreme Court to get ENDA declared unconstitutional as it applies to Texas, Oklahoma and the other states. I first raised my concern about a right-wing constitutional challenge to ENDA with the Democratic Leadership of the U.S. House of Representatives in September of 2007 when I was hired to serve as Labor Counsel to Congressman George Miller (D-CA), who was at that time the Chairman of the House labor committee.

A few months later, once I was working as lead counsel on ENDA in the U.S. House, we partnered closely with the Williams Institute at UCLA Law School, which is the legal research center on LGBT rights that has provided invaluable scholarship in venues ranging from the Proposition 8 trial in California to the legislature of Rhode Island. For the next two years, the Institute's Executive Director Brad Sears, Professor Nan Hunter, and a talented researcher named Christy Mallory led an exhaustive effort to help the House labor committee collect the research needed to demonstrate ENDA's constitutionality. Mr. Sears then skillfully presented that research to the House labor committee as a Democratic witness at the hearing on ENDA in September 2009.
Mr. Sears' testimony demonstrates just how important "heightened scrutiny" could be to the LGBT community and to the long-term success of ENDA. When the constitutionality of ENDA is eventually considered by the U.S. Supreme Court - perhaps five or ten years from now - the Justices are going weigh at least two factors:

1. the level of constitutional protection afforded to members of the LGBT community; and
2. the amount of evidence of discrimination by state governments that was collected and documented by the U.S. Congress.

Under Supreme Court precedent, there is an inverse relationship between the two factors. The higher the level of scrutiny afforded to a group (in this case, LGBT individuals), the smaller the necessary evidence from Congress regarding existing evidence of discrimination.

Congressman Miller and his House colleagues put thousands of examples of anti-LGBT workplace discrimination by state government employers into the Congressional record through live testimony in September 2009. It would have been nice if the Senate labor committee had also called Mr. Sears or one of his colleagues from the Williams Institute during their November 2009 ENDA hearing to present live testimony of the Williams Institute's voluminous report. I am hopeful that Senator Tom Harkin (D-Iowa) - a progressive champion who chairs the Senate labor committee - will correct that oversight in the upcoming session of Congress.

Senator Harkin would also do well to correct a significant mistake from his 2009 Senate hearing on ENDA, which did not include a single transgender person among the seven witnesses who were called to testify. The failure to include a voice from the transgender community was rightly and highly criticized at the time. As Diego Sanchez, a Policy Advisor to Congressman Barney Frank (D-MA), eloquently explained to a reporter from the Advocate magazine, the problem with excluding transgender witnesses is that it sends a "signal that [transgender people like Sanchez] are disposable." Transgender employees deserve the same workplace anti-discrimination rights as the rest of us, and while gender discrimination laws offer some protection, the transgender community should not be left behind with ENDA. Accordingly, I made sure that the 2009 ENDA hearing in the House of Representatives did feature a transgender victim of discrimination.

Returning to the constitutionality of ENDA, the Williams Institute's report significantly increases the chances that ENDA will survive the Supreme Court's eventual review, but it does not guarantee a victory for ENDA. Some judicial activists like Justice Antonin Scalia will likely vote to strike down ENDA no matter how many thousands of examples of discrimination we put into the Congressional record. But some of the swing votes on the Court are very much in play, and those swing votes are more likely to give ENDA a fair chance if LGBT workers are viewed through the lens of "heightened scrutiny" rather than the current "rational basis review."

Simply put, President Obama's announcement earlier this week that his Administration will spend at least the next two years working in the courts to improve the constitutional standing of gays and lesbians in the marriage context means that we will also be in a much stronger position when ENDA is signed into law and is subjected to constitutional challenge.

Our advances towards marriage equality will lead to advances in the context of employment equality, and visa versa. As noted above, equality begets equality. The Obama Administration has taken an important step toward securing equal rights for the LGBT community, both in our marriages and in our workplaces. And that's the kind of change I can believe in.



for more from Nan visit Hunter for Justice.

=end=