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May 27, 2007 03:23 PM UTC
26 Comments
First Bill Ritter signed the second-parent adoption bill, Mary Cheney and Heather Poe welcomed the arrival of their baby (and there’s talk that they may have additional children), and now Colorado has joined the ever-growing list of states which are outlawing employment discrimination based on sexual orientation and gender identity. (And a handful of pretty conservative Republicans like Debbie Stafford and Don Maristoca voted for the bill.)
Probably the best week for the GLBT community in Colorado since the unfortunate loss of Ref. “I” last Nov.
Speaking of Ref I, has anyone heard if there will be another attempt in 2008 to pass it?
..I don’t think it makes a lot of sense to run similar legislation so soon.
At this point it makes more sense to wait for marriage. It cna only be a matter of time before cases involving the anti-marriage laws get to the Supreme Court and will be struck down.
The bottom line is it is unconstitutional for one state to refuse recognition of a marriage legally performed in another state.
…although I’m not totally convinced that the “full faith and credit” argument is a slam-dunk. In my limited research, it seems to me that this area of constitutional law is rather murky and undeveloped. Maybe it’s time to develop it further!
To rule any other way would ignore all precendence in this area. There are at least 3 US supreme Court cases I am aware of from the 1870’s to the 1960’s which have maintained that one state cannot invalidate another state’s marriages (or divroces for that matter).
Many states prohibit cousins from marrying one another but not all. If someone marries a cousin in a state where it is lawful, that semi-incestuous marriage would be recognized even in a state where it would otherwise be prohibited.
Same with ages of consent for marriage, which tend to be lower in some of those good old solid conservative southern red states, but are nonetheless legally recongized in more sophisticated blue states.
And some may recall the popularity of Neveda divorces in the 1960’s before no-fault divorce took hold in much more of the country.
I was actually thinking of marrages involving cousins or very young people….does State X have to recognize a marriage between people who would be too young to marry in that state? I thought State X’s strongly expressed public policy against such marriages might exempt it from having to recognize such marriages (unless State X’s discrimination was based on race or some factor otherwise unconstitutonal). I’d like to see a case on that.
This message is for Dan, too.
Also, don’t get me wrong, I want to share your confidence, but I guess I haven’t read the right cases yet. If you could point me to them, that would be great. Thanks!
I was on a little vacation over the holiday.
Loving v. Loving is most quoted case. It dealt with people of different races marrying and having their marriages recognized in states that still forbade such marriages.
The US Supreme Court used the opportunity to strike down all laws forbidding such marriages. But they also discussed in their decision the Full Faith and Creidt argument. In fact the dissent on the case is a dissent only because they felt the wrong principles were aplied to the case. They still argued in favor of the Full Faith and Credit Clause but dissented because they thought that was what should have been used to uphold the legal recognition of the marriage.
If you read that case, it will give several cites to previous Full faith and Credit cases.
Hope this helps!
I read Loving a long time ago, and remembered it as mostly concerning equal protection, not full faith and credit issues. I will re-read it!
This discussion of marriage reminds me of “The Joke” that circulates in Utah lawyers’ offices whenever a public polygamy case is tried.
Did you hear that Bob ______ is being tried for polygamy? He’s in big trouble. Do you know what the penalty for bigamy is?
Why, no. What is the penalty for bigamy?
Two wives.
My guess is that the keepers of the gay agenda will take an incremental approach (i.e., enactment of a civil right or two each year). This year they were adoption and employment non-discrimination.
Next year it might be inheritance rights for surviving long-time companions. Or a constitutional amendment to ban burning of the rainbow flag.
trying to enter into the 21st century.
The impact of SB 25, IMHO, will not be about discrimination in hiring or firing workers based on their sexual preference. The Colorado Division of Civil Rights almost never finds probable cause in wrongful discharge employment claims. Age, sex and race discimination cases make the news because they are so rarely sucessful. The number of sucessful wrongful discharge suits for sexual orientation will also likely be nil.
The impact of SB 25 will arise when a gay employee demands health or other benefits for his same-sex partner on the basis that such benefits are provided to spouses of other employees. For example, a spouse can be designated to receive pension benefits if the employee dies. SB-25, IMHO, arguably mandates the same benefits be available to same-sex partners.
Legal complications will inevitably arise. If a spouse can claim rights to a pension plan in a divorce, why can’t a same-sex partner have similar rights when the relationship breaks up?
….but when they find no probable cause, they issue a right-to-sue letter which allows the aggrieved party to take matters into his or her own hands (and away from a government bureaucrat……) and file a civil suit in state court.
P.S. Yes, you heard my little dig there at entrusting a discrimination claim to an inept government bureaucrat. It’s the closet-Republican in me trying to come out!
SHOULD have all of the benefits that bpilgram describes for many reasons and this bill is the least of the reasons though it may well provide the legal standing.
In this age of 47 million folks uninsured more effort needs to be undertaken to insure more people. Businesses and governments that provide insurance as a benefit to full time employees must find a way to extend them to part-time employees as well.
Following up OQD, the primary success of Title VII lies not in the occassional winning lawsuit, but in the effort most companies make to avoid doing anything that could give rise to a suit. It will be the same with SB25. Colorado’s statute has fewer teeth than Title VII so it will not be as much of a deterrent, but it will change corporate behavior, especially in bigger companies with professional HR staff. The benefits question is an interesting one – if courts construe the bill as you suggest it would be huge.
Whether SB 25 is a good thing or a bad thing depends on how courts interpret the non-discrimination mandate and how companies respond to it.
One reaction could be that companies scale back on family coverage — cover the employee, but no employer-paid/subsidized coverage for any dependents.
Another reaction might be to accept the additional non-traditional family members into the group because there are not that many.
In the sticks, where I live, the small school district has historically covered employees and family members. It now finds that health insurance costs are a quarter of its budget and it regularly chooses between fixing the furnace or paying for health insurance. Here it would only take one lawsuit to push the district to just drop family coverage altogether.
There may well be companies in conservative Colorado communities — think Focus on the Family and the City of Colorado Springs — that literally implode before offering benefits to same sex partners.
It is illegal “For an employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation.” I’m not sure that when sexual orientation gets added to the list the kind of biased benefits plans we’re discussing will become illegal. As I said, it will be interesting. If the courts do interpret liberally, you probably are right that a few (mostly small employers) will drop coverage sooner than cover a [insert such employer’s epithet of choice]. The great majority will not, because it will not increase cost.
Who will bemoan this flouting of the voters’ will if not him?
He be the only defender of the voters’ will on all things related to gay rights. But you ask a good question: Where IS D.D.H.G.L.Q. these days? And Gecko too? The only wing nut I’ve seen any sign of lately is Blah.
…oppose this? Gee, go figure.
Well would you expect anything other? It goes against their fundamental beliefs – and their rights of free association and freedom of religion. To them it is a fundamental moral question, not a simple matter of what they see as manufactured rights – and other people forcing them to accept that which is morally repugnant to them and in direct opposition to their faith.
Would you want to force blacks to employ KKK members who slur their employers with racial epithets away from the job? No? Then you advocate one sided laws protecting only SOME favored classes and exposing others?
Not claiming right or wrong, but there are arguments that people should be able to discriminate however the hell they want to, as long as its overt and public – and they can be protested, boycotted, picketed, etc in response. They have the right to free association, but they must also face the consequences of ill will that they generate. Freedom encompasses freedom to be an ass, if it is to have any value at all. The “Fred Phelps” people are walking proof of that every day.
Can we please come up with better analogies than the trite KKK and Fred Phelps lines? Please?
Sure, they have the right to believe whatever they want, but that does not include impugning the rights of others. Sorry, but homosexuality is not a choice. FotF can claim that it is, and young earth creationists can claim that the earth is 6000 years old, but I have trouble believing any theory that is propagated with zero scientific backing. Religion, on the other hand, is a choice, but that is for another debate.
The KKK analogy is along the lines of a Godwin’s law invocation. Its repugnant and a total red herring.
You are claiming right and wrong. You are claiming that it is wrong for a group of people who cross racial and gender lines, who are the subject of violence only because they are what they are, and who are denied rights that every american is inherently granted by just being born here to expect equality.
People have the right to make an ass of themselves, but what happens when people dont protest them, but agree with them? FotF is not some fly by night organization; they have quite a large organizational structure. It scares me to think that they advocate discrimination in the name of religion and then cry foul when laws dont go their way.
that people CHOOSE to belong to the KKK. No one CHOOSES their sexual orientation, any more than they choose their race (If I’m wrong, I’d love to read the story of when you chose yours) which is why equal protection laws make sense for gays and are in no way “one sided laws protecting only SOME favored classes and exposing others”.