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Same-Sex Marriage Debate Has Some Interesting Bed-Fellows

Posted by attorney John Mccarthy

The Supreme Court tackles same-sex marriage this week. Today, the Court addresses California’s Proposition 8 (“Prop 8"), which bans gay marriages, and tomorrow the Court looks at the Defense of Marriage Act (“DOMA").

The cases are more about the States’, and the Federal Government’s, meaning of the word “marriage" than about anything else. 16 states allow same-sex partners to enter into legal relationships that confer most, if not all, the rights and responsibilities of marriage.

The Justices appear hesitant to tackle the issues head on. They could use these cases to order every state to allow same-sex couples to enter into a legal arrangement under the name “marriage." But, they probably won’t.

Nonetheless, some unusual alliances are forming over these issues. For example, most employment lawyers who represent employees are all for striking down Prop 8 and DOMA as unconstitutional. In general, we represent people who have been discriminated against. The LGBT community has long been discriminated against. The denial of the right to marry is just one example. So it’s not surprising when employee rights lawyers take up a cause like this. But, it’s a little more surprising to see Seyfarth Shaw, one of the largest Employment Management Defense firms take up a cause like this. Seyfarth Shaw joined opponents of DOMA, saying the law “forces an employer to place its lawfully married employees into two categories and requires that they create and administer a variety of dual systems for these employees. This creates regulatory, tax, and morale problems for employers, and forces them to differentiate in distributing benefits to lawfully married couples."

Another interesting alliance is being formed between the traditional left progressives and the traditional right conservatives. Both sides seem to agree that the laws violate the Equal Protection Clause. Justice Kennedy famously wrote “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." That was in Romer v. Evans, which determined that Amendment 2 of Colorado's State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violated the Fourteenth Amendment's Equal Protection Clause.

Employees Should Know:

Employees should know that regardless of the outcomes on Prop 8 or DOMA, employers cannot discriminate against employees on the basis of sexual orientation or gender identity under California law. If you feel like you are the victim of unlawful discrimination, it is important to contact an experienced discrimination attorney. There are lots of things you can do to help protect your job. But, you have to be willing to protect your rights. Otherwise, you might very well end up looking for a wrongful termination lawyer and nobody wants that.

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues. He counsels, and represents employees, and writes a California Employment Law Blog.

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