The issue of same-sex marriage is once again before the United States Supreme Court. Last time the Court addressed this topic, the Court rightly invalidated Section 3 of the Defense of Marriage Act, which restricted the federal definition of marriage to a marriage between a man and a woman. This time around, the Court will be considering two discrete questions regarding the constitutionality of state same-sex marriage bans. The first question, which is a bit meatier and therefore has garnered more media coverage, asks whether the Fourteenth Amendment requires states to license same-sex marriages. Ideally, the Court will answer this question in the affirmative and thereby cement the constitutional right to marry whomever you please, regardless of sex.
However, if the Court finds that states are allowed to ban same-sex marriages, then it will also need to answer the second question: whether the Fourteenth Amendment requires states to recognize same-sex marriage that was lawfully licensed and performed out-of-state. Put another way, if a same-sex couple marries in New York but later moves to Tennessee, is Tennessee allowed treat their marriage as invalid for the purposes of state law?
States’ so-called “non-recognition” laws function by nullifying same-sex marriages as soon as a validly-married same-sex couple enters a non-recognition state, whether they enter for a vacation or to live there. In doing so, non-recognition laws deprive these couples of a staggering array of previously-acquired rights, benefits, and obligations. Among other things, the laws prevent same-sex couples from adopting children together; deny them certain state and local tax benefits; deny them access to entitlement programs such as Medicaid; and deny them the remedies of loss of consortium and wrongful death. Crucially, as our firm argued in an amicus brief on behalf of LGBT student groups, non-recognition laws also amplify the existing barriers LGBT individuals face in finding and keeping gainful employment.
Members of the LGBT community already report high rates of employment discrimination, which is something I touched on in a previous blog post. This discrimination includes failure to hire, discrimination in pay and promotion, sexual harassment, and workplace hostility. So when it comes to finding a job, LGBT employees’ flexibility is already limited by societal discrimination. Non-recognition laws exacerbate this problem by limiting where same-sex couples may live, work, and raise their children. As we wrote in our brief, non-recognition laws force LGBT individuals to choose between gainful employment and the rights, benefits, and dignity of marriage. This choice is far from hypothetical. A 2014 Harris poll found that, all other things equal, 60% of LGBT adults would prefer a job in a state where same-sex marriages are recognized over a jobr in a state that does not recognize same-sex marriages. The same poll found that 30% of LGBT adults “would consider changing jobs if their employer required them to transfer to a state where same-sex marriages were not recognized.”
We examined this issue from the perspective of college and graduate students, who are poised to enter the workforce. Nowadays, many schools specifically prepare LGBT students for the challenges they may encounter in their job searches. Because of non-recognition laws, students not only have to consider these challenges, but also whether accepting a job in a particular state might invalidate their preexisting marriages. In the context of highly competitive positions, such as medical residencies or judicial clerkships, one often has little say in where he or she ends up. This means that non-recognition laws effectively condition employment on a person’s willingness to sacrifice his or her marriage.
Many of us have played the game “would you rather,” often with entertaining results. But the question “would you rather be gainfully employed or legally married” is one that no one should have to answer. If the Court reaches the right result, then soon, no one will.