Mahan Law Blog

Monday, July 6, 2015

Keep Up to Date: What the Same-Sex Marriage Ruling Will Mean for Small Businesses

On June 25, 2015 the Supreme Court of the United States legalized same-sex marriage.  See Obergefell v. Hodges.  Lost in the multitude of political opinions on the matter is how the ruling effects businesses.  In a nutshell, the same-sex opinion solidified that denial of marriage licenses and recognition to same-sex couples violates the Due Process of Equal Protection clauses of the Fourteenth Amendment.

Due process prohibits government from depriving any person of "life, liberty, or property, without due process of law."  Substantively this right of due process protects individuals from policies encroaching on fundamental rights.  In the past due process has provided a right to use contraceptives, to send your children to private schools, to marry a person of a different race, etc.  Equal protection provides that states shall afford every person "the equal protection of the laws."  This clause is historically known for eradicating the "separate but equal" fallacy of segregation.  Like many supreme court cases before it, the same-sex marriage case is grounded in both the Due Process and Equal Protection clauses.

What does this have to do with business?  Justice Kennedy's use of the Due Process and Equal Protection clauses solidifies that a business' disparate treatment based upon a person's sexual orientation will now firmly be considered discrimination.  As a result we recommend all anti-harassment and discrimination policies, and discipline arising from such policies, specifically include a person's sexual orientation as protected.  While discrimination based upon sexual orientation was already illegal in many states, the impact of the Obergefell ruling creates a derivative that if same-sex marriage is a fundamental right so is one's sexual orientation.  So even without a law specifically on point, businesses should be aware that discriminating on the basis of sexual orientation would violate public policy.

The issue expected by lawyers to be litigated in the near future is whether or not a business, such as Hobby Lobby, whose owners hold its first amendment freedom of religion is infringed by implications of the same-sex marriage ruling will likely be met with disappointing results.  If you recall, in Burwell v. Hobby Lobby Stores, Inc. the Supreme Court recognized a corporation's religious beliefs (based upon its closely held owners) and struck down the contraceptive mandate found in the Affordable Care Act requiring employers to cover certain contraceptives for their female employees.  A mandate for employers to provide contraceptives under an act of congress is a far cry from infringing upon "fundamental rights" of an individual.

Make sure your policies protect a person's sexual orientation just as any other protected class. 

For years Mahan Law has provided its clients a list of protected classes so business-owners and managers can properly train staff to avoid unintentional discriminatory conduct.  Our protected-class list includes age, disability, familial status, gender, genetic information, national origin, race, religion, sexual orientation, and veteran's status.  If you haven't already, take the time to update your anti-discrimination and anti-harassment policies to ensure your business stays up-to-date with legal requirements.  As always should you have specific questions please contact your attorney.

Our office is conveniently located in Newport, Kentucky (less than two miles from downtown Cincinnati), but we handle cases throughout the states of Ohio and Kentucky. We also routinely meet with our clients at their offices or homes if more convenient.

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