The limits of the two gay rights decisions pending before the Supreme Court

Sometimes there is a lag time between law and changes in society.  As people wait with baited breath about U.S. v Windsor and Hollingswoth v Perry, members of the LGBT community and their supporters note that even if LGBT claimants prevail in both cases, there is still much work to be done because of the scope of rights those two cases address.  As Tara Siegel Bernard reported in the NYT yesterday, gay workers still lack protection from being fired at will and not being hired in many states.

It could be argued that both gay rights cases under consideration before the Court are putting the cart before the horse.  U.S. v Windsor is about the constitutionality of DOMA and the question of whether federal law can treat same sex couples the differently than heterosexual couples when in comes to the distribution of benefits.  The gay rights community has pushed on all fronts in terms of equal treatment under the law and it is easy to see why the main cases have concentrated on marriage equality.  The reason is that a legally recognized marriage comes with it a plethora of other legal rights, over 1,300+ by one count in federal law alone. 

Hollingsworth v Perry could be framed by the Court in an even more narrow fashion, which is to rule on the question of whether the state of California can give marriage rights to residents and then take it away later.  While victories on one or both cases would be undeniable progress, neither of these cases directly addressed the question of whether an employer can refuse to hire or fire you based on your sexual orientation alone.

The vignettes presented by Ms. Bernard in the NYT article show that it is all too possible for this very scenario to happen and that LGBT workers have little recourse under the law. Furthermore, as Bernard notes:

That means even if the Supreme Court were to declare that the law that denies same-sex married couples federal benefits was unconstitutional — it is expected to weigh in on the issue this month — such a decision could have a perverse effect: workers who may be permitted to add a same-sex spouse to a pension or a health plan, for instance, would be forced to expose their sexuality in a potentially hostile workplace to receive those benefits.

Law is inherently conservative and the Supreme Court and the federal courts cannot rule on whatever subject they please; they have to wait for a case to percolate up to them.  Law is also not a great vehicle for addressing complex social problems like homophobia.  But for minority groups searching for equality, the federal courts are often only avenue to go. 

Hopefully on this front, the states will create more progressive laws first as over 12 states have than the federal courts, but that too is a toss up given the wide geographical,  political cultural, and ideological variation among the states.