Though same-sex marriage is now permitted in all 50 states, only 22 states and the District of Columbia have laws against discrimination based on sexual orientation. Legislation to provide comprehensive federal protections to gays nationwide is expected in the coming weeks.
WASHINGTON — The Supreme Court on Friday delivered a landmark victory for same-sex marriage, but gay-rights advocates were already preparing for the next great battle: the expansion of federal civil-rights laws to protect gays in the workplace and elsewhere.
Only 22 states and the District of Columbia have laws against discrimination based on sexual orientation, leaving millions of gays and lesbians without a clear right to rent an apartment, eat at a restaurant or keep their jobs.
“This is the next frontier after gay marriage,” said Bryan Gatewood, a gay-rights lawyer in Louisville, Ky. Legislation to provide comprehensive federal protections for gays and lesbians nationwide is expected to be introduced in the coming weeks by Rep. David Cicilline, D-R.I., in the House and by Sen. Jeff Merkley, D-Ore., in the Senate.
With Republican majorities in both chambers of Congress, the bills have little chance of passing anytime soon. But gay-rights groups say prospects for gay marriage were similarly dim when that movement started over two decades ago.
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Sarah Warbelow, legal director for the Human Rights Campaign in Washington, predicted an LGBT nondiscrimination bill would be passed in the next three to six years. “There has been a very significant shift among Republicans about how they think about LGBT people and what it means to provide core protections,” she said.
Opponents of gay-rights legislation are also ramping up. They are focusing a rival campaign around religious liberties, claiming that a mandate to serve gays and lesbians might sometimes violate their faith.
Some states, like Mississippi, have passed laws to protect businesses that refuse to serve gays and lesbians as a matter of religious conscience.
The Alliance Defending Freedom, a religious legal advocacy group based in Arizona, is advising churches, religious nonprofit organizations and schools on how to defend themselves from discrimination lawsuits. The organization is also representing a florist who refused to sell flowers for a gay wedding and a T-shirt printer who refused to make shirts for a gay-pride parade, according to the group’s spokesman Bob Trent.
Their cause was bolstered last year when the Supreme Court ruled that corporations with religious-minded owners have rights similar to those of individuals under a federal religious freedom law. The decision exempted the Hobby Lobby crafts chain from a federal requirement to offer certain forms of birth control to workers.
But sometimes efforts to use religious claims to rebuff anti-discrimination laws have caused a backlash. A bill approved in Indiana in March that critics said provided a legal basis for businesses to refuse services to gay customers was amended in April to explicitly outlaw such discrimination after the state was hit with a flood of negative national attention, including criticism from some major companies based in the state.
Even without a federal law banning discrimination against gays and lesbians, there have been several major — if little-known — advances in the area of employment in recent years. Since 2012, the Equal Employment Opportunity Commission has quietly reinterpreted the 1964 Civil Rights Act’s prohibition on sex discrimination in the workplace to cover gay and transgender people.
EEOC Commissioner Chai Feldblum said in an interview that the EEOC decided it was “a gender stereotype to think that a man should marry a woman,” ruling in favor of 223 LGBT people who claimed employment discrimination in the past two years. But that theory has not been fully tested in the courts, and a new federal law could give much broader protections, she said.
Last year, President Obama signed an executive order prohibiting federal contractors from discriminating in hiring based on sexual orientation, which, according to the Williams Institute at UCLA, covers nearly a quarter of the entire civilian workforce.
All federal employees are also protected against discrimination based on sexual orientation, under executive orders issued by several presidents. The Pentagon announced an anti-discrimination policy in early June. Together they mean protection for more than 4 million more Americans.
Combined with some 200 local anti-discrimination ordinances, about half of all gay and lesbian workers in the U.S. are believed to be legally protected against employment discrimination, though firm numbers are not available.
In addition, nearly 90 percent of Fortune 500 publicly traded companies voluntarily prohibit discrimination on the basis of sexual orientation, according to the Human Rights Campaign.
But there are no laws protecting a majority of gays and lesbians from other forms of discrimination, including housing.
In a 2013 study, the U.S. Department of Housing and Urban Development found that landlords responded less favorably to same-sex couples compared to opposite-sex couples in housing inquires more than 15 percent of the time.