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Unpublished Paper
ONCE WE’RE DONE HONEYMOONING: MARRIAGE EQUALITY, INCREMENTALISM, AND ADVANCES FOR SEXUAL ORIENTATION ANTIDISCRIMINATION
ExpressO (2015)
  • Jeremiah A. Ho, University of Massachusetts School of Law
Abstract

Once We’re Done Honeymooning: Marriage Equality, Incrementalism, and Advances for Sexual Orientation Antidiscrimination

Abstract

Following the Supreme Court’s decision in U.S. v. Windsor, each recent victory in the federal courts has evidenced that the legal recognition of same-sex marriages in the U.S. is becoming increasingly secure. Yet, can marriage equality be the last stop in the pro-LGBT movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality can somehow leverage broader protections of LGBT individuals beyond their marital relationships?

This article begins from the perspective that the marriage equality movement is an increment in the longer process for securing legal protections for sexual minorities. Although many of the judicial victories have been specifically effective toward recognizing the relationships of same-sex couples, there have also been some significant judicial post-Windsor strides that could be instrumental for furthering progress in areas of sexual orientation antidiscrimination. Currently advancements in that area have been less even and once marriage equality is finally secured, progress for protecting sexual minorities should navigate toward reforms in federal antidiscrimination laws. This article discusses the post-Windsor judicial advances in suspect classification and heightened scrutiny and how they bolster autonomy rights in sexual identity that federal antidiscrimination laws, specifically Title VII, ought to protect, but currently do not.

Attention Law Review Editors: This article was written with the pending Supreme Court appeal regarding the Sixth Circuit’s split on same-sex marriages very much in mind. See, e.g., DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, 83 U.S.L.W. 3608 (Jan. 16, 2015) (No. 14-574). The decision in that case will be released by June 2015. Currently, my article alludes to the pending appeal, and it is my design for the article to incorporate significant discussion of this upcoming Supreme Court decision. I will draft this addition promptly when the opinion appears. This addition is highly relevant to my article because I discuss at length the federal district court cases in the Sixth Circuit that were subsequently struck down at the appellate level and are now combined in the appeal before the Supreme Court. Yet this subsequent incorporation will not ultimately disturb my normative thesis, nor the structure of the article in its current state. Whether or not the Supreme Court’s decision is favorable to marriage equality, my scholarly opinion remains that marriage equality advancements must help further the ends of sexual orientation antidiscrimination. If accepted for publication, this later inclusion of the Supreme Court’s pending same-sex marriage case will place your law review in the forefront of scholarly commentary on what might be one of the most important civil rights decisions in recent memory.

Keywords
  • LGBT rights,
  • antidiscrimination,
  • post-Windsor,
  • Title VII,
  • sexual orientation discrimination
Publication Date
February 25, 2015
Citation Information
Jeremiah A. Ho. "ONCE WE’RE DONE HONEYMOONING: MARRIAGE EQUALITY, INCREMENTALISM, AND ADVANCES FOR SEXUAL ORIENTATION ANTIDISCRIMINATION" ExpressO (2015)
Available at: http://works.bepress.com/jeremiah_ho/3/