A bill to enact the proposed Employment Non-Discrimination Act ("ENDA") was introduced into the 113th Congress and approved by the Senate by a 64-32 vote. The Act would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. Non-profit membership clubs and organizations that are solely religious are exempted, but religiously affiliated organizations (such as hospitals and schools) are not.
Proponents and opponents disagree about whether sexual orientation and gender identity discrimination is widespread and a serious problem. Proponents point, for example, to a field experiment in which job applications with a fictitious resumé including membership in a gay organization in college received substantially fewer invitations for interviews than did applications with a fictitious resumé identical except for the membership. Opponents note studies showing that gays have average or above-average incomes and conclude that discrimination does not seem to have impaired their earning potential.
There is also disagreement about the impact ENDA would have on people of faith. Proponents note that the religious exemptions of ENDA track those of other federal anti-discrimination laws. Opponents point out that disapproval of homosexual acts is a fundamental tenet of Christianity, Judaism, and Islam, as well as of many other faiths, and that ENDA would be the first American federal law to outlaw exercise of a mainstream belief of our major religions.
On August 22, the New Mexico Supreme Court ruled in Elane Photography v. Willock that the First Amendment doesn't protect a photographer's right to decline to take pictures of a same-sex wedding ceremony against the requirements of the state's Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. The case perfectly illustrates the tension between the ideals of non-discrimination and individual freedom. Join us as our expert discusses both sides of the issue.
On June 26th, the U.S. Supreme Court decided two same sex marriage cases: the Proposition 8 (Hollingsworth v. Perry) and Defense of Marriage Act (United States v. Windsor) cases. Please listen as our experts discuss the decisions and their implications in this previously recorded call.
On June 26, 2013, the Supreme Court announced its decision in Hollingsworth v. Perry and United States v. Windsor. Both cases concerned the constitutionality of same-sex marriages. Perry considered whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as the union of a man and woman, and whether the petitioners have standing to sue in the case. The questions in Windsor were whether Section 3 of the Defense of Marriage Act (DOMA) violates equal protection, whether the Executive Branch’s agreement with the lower court deprives the Supreme Court of jurisdiction, and whether one of the parties had standing to sue in the case.
In Perry, in an opinion delivered by Chief Justice Roberts, the Supreme Court held by a vote of 5-4 that the petitioners did not have standing to appeal the district court’s order striking down Proposition 8, and that the Supreme Court therefore could not reach the merits of the dispute. The Court remanded the case to US Court of Appeals for the Ninth Circuit with instructions to dismiss the appeal for lack of jurisdiction. Justices Scalia, Ginsburg, Breyer and Kagan joined the majority opinion. Justice Kennedy filed a dissenting opinion, which was joined by Justices Thomas, Alito and Sotomayor.
In Windsor, in an opinion delivered by Justice Kennedy, the Court held by a vote of 5-4 that it had jurisdiction to consider the case, and that Section 3 of DOMA violates equal protection under the Fifth Amendment and is therefore unconstitutional. Justices Ginsburg, Breyer, Sotomayor and Kagan joined the majority opinion. Chief Justice Roberts filed a dissenting opinion. Justice Scalia filed a dissenting opinion in which Justice Thomas joined and which the Chief joined in Part I. Justice Alito filed a dissenting opinion which Justice Thomas joined in parts II and III.
To discuss the cases, we have Carrie Severino, who is chief counsel and policy director of the Judicial Crisis Network and Jonathan Adler, the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law.