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Supreme Court’s Same-Sex Marriage Decision May Prove Problematic For Anti-Discrimination Efforts

Published:  October 26, 2015

In 1982, Wisconsin became the first state to prohibit employment discrimination based on sexual orientation both in the public and private sphere.  Massachusetts was the next state to do so in 1989 and subsequently took the lead in the nation on the issue of same-sex marriage by legalizing it in 2004.  After the Supreme Court’s recent decision in Obergefell v. Hodges, same-sex marriage is now legal throughout the nation.  At the same time, less than half of the states recognize sexual orientation as a protected category under their anti-discrimination statutes with regard to both public and private employers.  This disparity has raised the question of what impact, if any, will Obergefell have in these states through the federal employment discrimination laws. 

The answer to this question may not be what most practitioners expect.  Commentators have posited that Obergefell will either have no effect on employment discrimination laws or will expand protections for gay and lesbian employees.  However, the Supreme Court’s decision may actually impede such efforts on the federal level.  At a minimum, the Court’s vague discussion of the bases for its holding is bound to lead to further litigation.

Click here to read the full article published by The National Association of Minority and Women Owned Law Firms (NAMWOLF).