The U.S. Constitution protects gay people’s right to marry the person they love. It does not, however, protect them from getting fired for doing so. Throughout the first decade of marriage equality, most states that legalized gay marriage also proscribed anti-gay employment discrimination, rendering this legal dissonance moot. But as more and more states find marriage equality foisted upon them by a judicial mandate, this discordance in rights presents something of a ticking time bomb for the LGBT movement.
Currently, Pennsylvania is the only state in the nation with both gay marriage (thanks to a federal judge) and no employment protections for gay people. But as this dizzyingly polychromatic Guardian chart illustrates, several other states also boast same-sex marriage while lacking hospital visitation, adoption rights, or housing protections for sexual minorities. In New Mexico, a man can marry his male partner—but can be forbidden from visiting him in the hospital. In New York and New Hampshire, trans people can be evicted from their houses and fired from their jobs for being trans. In Hawaii, a gay student can legally be kicked out of school based solely on his orientation.
And when the Supreme Court almost inevitably legalizes marriage equality nationwide, the chasm between gay marriage and broader LGBT equality is going to expand rapidly in dozens of red states. Marriage equality was supposed to be an umbrella issue, pulling purportedly lesser gay rights into its sweep. To some extent, this strategy has succeeded: Most Americans now profess a generalized support for gay equality. But in direly reactionary states, it may take decades to convert this support into legislative action—even after the judiciary renders gay marriage a settled issue.
There are some stopgap solutions here. President Barack Obama has ordered most hospitals to provide visitation rights to gay couples, extended LGBT protections to federal employees and federal contractors, and forbidden gay and trans discrimination by HUD-assisted housing programs. But administrative regulations and executive orders can’t extend as far as a federal measure would, and a Republican president could swiftly reverse them on his first day in office. An ENDA-type federal law could permanently outlaw this kind of discrimination everywhere, but the Republican-controlled House refuses to pass one, and LGBT job discrimination remains legal (and common) in 29 states.
What’s the solution to this coming crisis? The fight for nationwide gay marriage will turn out to be a hollow joke if gay couples in red states are too afraid of discrimination to actually get married and enjoy the dignity of true, state-prescribed equality. Because the Republican House refuses to consider gay rights measures—and because states like Tennessee and Alabama seem unlikely to act on their own to protect sexual minorities—the best solution is probably the one gays have relied on for decades: the courts. Thanks to federal lawsuits, judges are already considering the idea that existing law outlaws anti-gay discrimination in every state and that the Constitution guarantees same-sex adoption rights. The same logic that shoehorns anti-gay discrimination into sex discrimination could be used to turn the Fair Housing Act’s sex discrimination clause into a protection for LGBT people.
That’s not to say that a lawsuit trumps a law: The best-case scenario remains the one in which once-homophobic Americans wake up to the beauty of equality once gay marriage is imposed on their states, and Republicans across the country suddenly preach the gospel of gay rights. As the judiciary outpaces red-state America, though, this dream seems increasingly absurd. We didn’t get marriage equality just by changing hearts and minds; we did it by taking the government to court. It’s nice to imagine that, once we achieve marriage rights, our court battle is over. But in reality, it’s just beginning.
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