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Same-Sex-Marriage States Often Lack Job Protection Laws For Gays


Wyoming could become the latest state where same-sex marriage is legal. A federal judge hears arguments today about when to start issuing marriage licenses to gay couples there. But while you can be gay and get married in a majority of states now, Wyoming is one of a number of states where being gay can also get you fired. Wyoming Public Radio's Miles Bryan reports.

MILES BRYAN, BYLINE: Meg Thompson (Ph) and her partner Emily got their marriage license in Washington, D.C. But they live here in Laramie, Wyoming. So last July, they had their ceremony in the Snowy Mountains a few miles out of town.

MEG THOMPSON: Old-timers of Wyoming say if summer comes on a weekend, we should have a barbecue, and that was actually the weekend it came.

BRYAN: Thompson says she's excited about the prospect of her marriage being recognized in her home state. But she's careful about who she shares that with. She does contract work as a carpenter and as a basketball coach.

THOMPSON: You know, even me, who's had mostly positive experiences in life with being out and I'm self-employed, I still have to think about it.

BRYAN: Wyoming is one of 11 states that have or will soon have same-sex marriage, but don't have employment protection for gay people. They include Pennsylvania, Virginia, Indiana and Oklahoma, where last week the Supreme Court allowed same-sex marriages to go forward. Cathy Connolly is a Laramie representative to Wyoming's legislature. She says discrimination against LGBT people in the workplace is often subtle.

CATHY CONNOLLY: It can be the inability to talk about your loved one at work, not being invited to X, Y and Z.

BRYAN: Connolly has proposed antidiscrimination legislation every year for the last six. It never passes.

CONNOLLY: Every year it gets closer, and that's the way that I prefer to think about it.

BRYAN: There are broader efforts as well. Stacey Simmons is with the National LGBTQ Task Force. She's working to get federal laws passed that would ban discrimination against gays in employment, but also in other areas like housing.

STACEY SIMMONS: We don't have consistent protections across the board, in every single jurisdiction, which is why we're working so hard.

BRYAN: Last year, the Senate passed the Employment Nondiscrimination Act, or ENDA, but it stalled in the House. Even in today's political climate, that's surprising. The polling company Gallup stopped asking Americans if they were in favor of ENDA-style laws back in 2008 after the approval rating hit 89 percent. Simmons says getting same-sex marriage is great, but it's not enough.

SIMMONS: It's a lovely story, the marriage story. It's definitely - warms the heart, but the other side of that is the very real danger and harm that comes with having your livelihood and your personhood threatened.

BRYAN: If these issues aren't addressed by lawmakers, they are beginning to be addressed by the courts. For example, the Ninth Circuit recently introduced a higher level of scrutiny for equal protection cases involving LGBT people. University of Wyoming law professor Stephen Feldman says courts almost always use the lowest level of scrutiny, called rational review, in these instances.

STEPHEN FELDMAN: Traditionally rational basis review under equal protection is a rubberstamp.

BRYAN: Meaning those cases almost always go the government's way. What the Ninth Circuit did was apply intermediate or heightened scrutiny.

FELDMAN: Heightened scrutiny is a very ambiguous term. It means anything above traditional rubberstamp rational basis review.

BRYAN: What's important is that heightened scrutiny flips the burden of proof from the group of people challenging a given law to the government defending it. That makes defending policies that discriminate against LGBT people in employment or housing way, way harder. For now this heightened scrutiny is only applied in the Ninth Circuit. The Supreme Court has declined to review the decision. It may, if a different federal court comes to a different conclusion. For NPR News, I'm Miles Bryan in Laramie. Transcript provided by NPR, Copyright NPR.

Corrected: October 16, 2014 at 12:00 AM EDT
The previous Web and audio introductions to this story incorrectly said that Wyoming has legalized gay marriage. In fact, it is under consideration by the courts, but a judge has not yet issued a final decision on the matter.
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