Thursday, October 18, 2012

Second Circuit Strikes Down DOMA

Today, the Second Circuit Court of Appeals struck down the Federal Defense of Marriage Act as unconstitutional. In Windsor v United States, the New York based appellate court decided that DOMA violates the Constitution's Equal Protection Clause.

The Second Circuit joins the First Circuit in finding the law unconstitutional. That said, these decisions are likely only stepping stones to the Supreme Court, as the land's highest court will undoubtedly take up DOMA.

What does this mean in the Employment Law context? Federal law does not consider sexual orientation to be a protected class in the same way race, gender, and religion are---at least not yet.

A telling line from the opinion reads as follows: "Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public." The Second Circuit seems to be putting this issue on a tee for the Supreme Court to knock out of the park by finding sexual orientation to be a protected class. If and when that happens, those discriminated against or harassed because of their sexual orientation should have the same rights in the workplace as everyone else.

Currently, seventeen states and the District of Columbia consider sexual orientation a protected class. Neither Missouri nor Kansas are included in that number. Ultimately, the decision the Supreme Court makes may very well expedite the process of ensuring that all are entitled to the same protections in Missouri and Kansas. We will just have to wait and see.

Have a question regarding your rights in the workplace or how this decision might affect you? Call the Paulus Law Firm at (816)581-4040 for a free consultation.


Jordan Bergus
Paulus Law Firm, LLC

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