Federal Employment Law Rights: The Impact of Same Sex Marriage Laws

Introduction

Same-sex marriage is legally recognized in jurisdictions throughout the United States. Indeed, by August 2013, several states and counties authorized the issuance of marriage licenses to same-sex couples. Although these jurisdictions have legalized same-sex marriage via court rulings and ballot measures, six states forbid same-sex marriage under their constitutions. The purpose of this research is to determine how to vindicate the employment law rights of same-sex couples. The legal, factual, and theoretical background of the proposed study are set forth below, as is the study’s significance. I conducted and will continue to conduct research using academic sources on the World Wide Web and the American Public University online library.

Background

Employers in the United States must meet certain minimally acceptable standards when it comes to the treatment of their employees. This includes ensuring that the organization itself does not discriminate against employees, and also preventing coworkers from engaging in discriminatory behavior toward one another. All employees are entitled to be compensated, evaluated, and promoted based on objective criteria that apply equally to all. Moreover, employers must provide a safe and secure work environment, allowing employees to fulfill their duties. Federal employment law goes a long way in ensuring that such minimally acceptable standards are achieved, but it has not been applied equally to all individuals.

Statement of the Problem/Research Questions

Federal employment law protections were not extended to same-sex couples until the Supreme Court mandated it in its recent United States v. Windsor decision, by striking down the federal Defense of Marriage Act (“DOMA”) definition of marriage. DOMA defined marriage, for the purposes of all rights under federal employment law, as a union between two people of the opposite sex. By invalidating this definition, the Court extended these rights to legally married couples of the same sex. But despite this victory, state law is inconsistent when it comes to employment law protections for same-sex couples. In the wake of the Windsor decision, there has been much discussion regarding the employment law rights of individuals in same-sex unions, at both state levels and federal levels. The proposed research will attempt to identify the best path forward to address these problems. It will do so by considering how similar rights have successfully been advanced for formerly subjugated groups in the past, and through the study of the relevant federal and state legislation.

Theoretical Framework

The proposed research will consider rights for couples in same-sex marriages in the United States in the contexts of federal constitutional law, federal employment law, relevant state law, feminist legal theory, and queer legal theory. The federal Constitution is based upon the idea of innate natural rights, a concept attributed to Enlightenment philosopher John Locke. These rights, however, have not always applied equally to all, and have only incrementally been expanded to cover more and more previously subjugated groups. This has at times taken place via legislation, and at times takes place in the courts. State employment law varies, but the breadth of different systems might provide a tool for identifying a way to move forward on a national level—or at least identifying what will not work.

In the academic vein, feminist legal theory is based upon feminist jurisprudence and considers the way that law has historically been utilized to subjugate women as a sexual minority. There are four models of feminist legal theory: liberty equality, sexual difference, dominance, and anti-essentialist. The queer legal theory considers both gay individuals and individuals whose sexual identities do not fall on the traditional “gay-straight” dichotomy, and how the law has been used to subjugate these groups via legal classification based upon sexuality and gender. These branches of academic theory and their implications will be explored as tools to illuminate how to vindicate the rights of same-sex couples as a sexual minority.

Research Design and Methods

This research will survey the history of federal employment law in the United States. It will then examine how federal employment law rights have been expanded to cover more and more people and consider how newly protected groups have achieved their successes in securing equal treatment under the law. Next, it will consider approaches taken by various states to the issue of employment law benefits for same-sex couples to determine what has and has not worked in furthering these rights. Finally, it will survey the academic fields of queer legal theory and feminist legal theory, and use insights from those bodies of work—which focus on sexual minority individuals—to identify which of the historically successful approaches for vindicating civil rights will work best for same-sex couples in the context of employment law rights, both federally in the wake of Windsor, and in the states. Based on this, it will recommend steps for advocates of equal rights for same-sex couples in their efforts to achieve such equal treatment.

Hypotheses

1. Extension of the protections of federal employment law rights has been a part of various civil rights movements throughout the United States history, and there are some similarities in the ways these groups have achieved such equal treatment.

2. Historically successful approaches for vindicating the rights of traditionally disenfranchised groups can be incorporated to further the rights of same-sex couples, both federally and in the states.

Significance of the Study

This proposed research will tie an existing body of history and law to the current struggle for equal treatment for same-sex couples. Illustrating the way that civil rights have historically been extended to formerly subjugated groups will provide insights for legislators, the public, and employers as they confront the recent United States v. Windsor decision, and examine how to move forward. It will also demonstrate that same-sex couples are similar to opposite-sex couples economically, and thus illustrate the importance of providing equal benefits to these couples, as the workplace is often the source of many valuable benefits for married people.

Gaps to be filled in Knowledge

This will fill gaps in the knowledge of advocates for marriage equality, by analogizing previous civil rights successes and academic literature related to sexual minorities to the current struggle for equal federal employment law rights for same-sex couples. By studying the ways previously subjugated groups have discussed, conceptualized, and advocated their quest for equal treatment, those who seek to avenge the rights of same-sex couples will be better able to identify the best way to move forward in their crusade. Moreover, by compiling and providing new data in this area, this research will both provide further support for the proposition that all such couples must receive the same benefits in their places of work.

Research Design and Methods

This research will consider historical examples of vindicating the rights of groups facing discrimination and apply those examples in the context of same-sex couple employment rights to illustrate a path forward. It will also consider academic data to rebut the argument that opposite-sex couples are unique and may be treated differently from same-sex couples in the context of employment law rights. The Constitution, federal laws, and body of academic work on feminist legal theory and queer legal theory will be read, studied and analyzed to identify trends that will allow the hypotheses herein to be tested.

References

Albert, A. (2005). The Use of MacKinnon's Dominance Feminism to Evaluate and Effectuate the Advancement of Women Lawyers as Leaders Within Large Law Firms. Hofstra Law Review, 35, 291-325.

Chemerinsky, E. (1999). Substantive Due Process. Turo Law Review, 15, 1501-1534.

Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 701- 718, 78 Stat. 253 (codified as amended at 42 U.S.C. §§ 2000e-2000e-17 (1988)).

Defense of Marriage Act, Pub. L. 104-199, 110 Stat. 2419 (codified at 1 U.S.C. § 7; 28 U.S.C. § 1738c).

Dowd, N. E. & Jacobs, M. S. (2003). Feminist Legal Theory: An Anti-Essentialist Reader. New York: New York University Press.

Eichner, M. (2001). On Postmodern Feminist Legal Theory. Harvard Civil Rights-Civil Liberties Law Review, 36, 1-77.

Frug, M. J. (1992). “Sexual Equality and Sexual Difference in American Law.” New England Law Review 26, 665–682.

Gray, A. M. (2006). Implications of Same-Sex Couples Being Denied the Right to Marriage: A Look at Federal Income Tax Structure and Social Security Benefits. The Park Place Economist, 26(3), 40-46.

Giovanna, S., & Strader, K. (2012). “Queer (In) Justice: Mapping New Gay (Scholarly) Agendas.” J. Criminal Law & Criminology, 102, 171.

Hertz, F., & Doskow, E. (2011). Making it legal: a guide to same-sex marriage, domestic partnerships & civil unions (2nd ed.). Berkeley, Calif.: Nolo.

Levit, N. & Verchick, R. M. (2006). Feminist Legal Theory: A Primer. New York: New York University Press.

Locke, J. A letter concerning toleration and other writings, edited and with an introduction by Goldie, M. (Indianapolis: Liberty Fund, 2010). (Original work published 1689).

U.S. Government Accountability Office. (2004). Defense of Marriage Act: Update to Prior Report. (GAO Publication No. GAO-04-353R). Retrieved from U.S. Government Accountability Office: http://www.gao.gov/products/GAO-04-353R.

United States v. Carolene Products Co., 304 U.S. 144, note 4 (1938).

United States v. Windsor, 133 S. Ct. 2675 (2013).

West, R. (1987). The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory. Wisconsin Women's Law Journal, 3, 81-141.