Same sex marriage is now legal in Wyoming, which means same sex couples now have access to all the legal rights that come with marriage. Even so, some disparities remain. For one, Wyoming lacks any legal protection for LGBT people in employment. That means gay, lesbian, bisexual and transgender people in the Cowboy State may be able to be legally married, but they may also be legally fired.
The party at the Albany County Courthouse started at 10:45am last Tuesday. That’s when Laramie’s first same sex marriage license was issued, with a dozen well-wishers cheering the happy couple on. Meg Thompson was one of those supporters. She got married to her partner Emily last year in Washington D.C., and they had their ceremony in the Snowy Mountains last July.
“Old timers of Wyoming say if summer comes on a weekend we should have a BBQ,” Thompson told me in her Laramie artist studio. “And that was actually the weekend it came!”
Thompson says she’s thrilled her marriage in finally recognized here in her home state, but she’s careful about whom she shares that with. She does contract work as a carpenter and as a basketball coach.
“Even me who has had mostly positive experiences about being out--I still have to think about it.”
Wyoming is one of eleven states that has same sex marriage but doesn’t have employment protection for gay people. They include Pennsylvania, Virginia, Indiana and Oklahoma, where the Supreme Court recently allowed same sex marriages to go forward. Laramie representative Cathy Connolly says discrimination against LGBT people in the workplace is often subtle.
"It cannot being invited to X, Y, or Z where everyone knows that being invited there with your partner or spouse is the way that camaraderie is built. That being invited is the way that a boss feels comfortable promoting someone."
Wyoming’s Fair Standards Office, which deals with workplace discrimination, says it gets about ten formal complaints from LGBT people every year, and many more informal inquiries. Cathy Connolly has proposed anti-discrimination legislation every year for the last six. Every year it doesn’t pass.
There are national efforts as well. Stacy Simmons is with the LGBTQ Task Force, a nationwide advocacy group. She’s working to get federal laws passed that would ban discrimination against gays in employment, but also in other areas like housing.
“We don’t have consistent protections across the board,” Simmons says. “Which is why we are working so hard.”
Last year the Senate passed the Employment Non Discrimination Act, or ENDA, but it’s stalled in the House. Even in today’s political climate that’s surprising: The polling company Gallop stopped asking Americans if they were in favor of ENDA-style laws back in 2008, after the approval rate hit 89 percent. Simmons says getting same sex marriage is great, but it’s not enough.
“It’s a lovely story, the marriage story. It definitely warms the heart. But the other side of that is the very real danger and harms that comes from having your livelihood and your personhood threatened.”
If these issues aren’t addressed by lawmakers, they are beginning to be addressed by the courts. For example the 9th circuit recently introduced a higher level of scrutiny for Equal Protection cases involving LGBT people. University of Wyoming law professor Steven Feldman says courts almost always use the lowest level of scrutiny, called rational review, in those instances.
“Traditionally rational basis review under equal protection is a rubber stamp.”
Meaning those cases almost always go the government’s way. What the 9th circuit did was apply intermediate, or “heightened scrutiny.”
“Heightened Scrutiny is a very ambiguous term,” says Feldman. “It means anything above rational basis review.”
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 9th circuit: the supreme court has declined to review the decision. It may if a different federal court comes to a different conclusion.
At the Albany County Courthouse these issues couldn’t be farther from anyone’s mind. But even those who are worrying about employment discrimination might not have to worry much longer, at least in Wyoming. Cathy Connelly says, now that same sex marriage is law, she’s very optimistic she’ll be able to get her anti-discrimination legislation passed when the legislature meets in January.