This document discusses policies related to sexual orientation and the public workplace. It outlines that there are currently no federal laws protecting against employment discrimination based on sexual orientation. Some key topics covered include the history of laws regarding same-sex marriage and civil unions, court cases related to discrimination and privacy, and the debate around the Employment Non-Discrimination Act. The document also examines public opinion on issues like same-sex marriage over time.

1. Sexual Orientation, Policy,
and the Public Workplace
Diversity and Equity in Public Administration

2. Introduction
• The rights of homosexuals is currently one of the most
highly debated policy issues and legal topics with many
issues in the courts right now!

3. Sexual Orientation and Public
Policy: Workplace Discrimination
• Federal Law
• There are no laws protecting discrimination on the basis of sexual orientation
at the federal level.
• The Civil Rights Act of 1964
• Congress also refused to extend the Civil Rights Act of 1964 to cover sexual
orientation in terms of job discrimination.
• State Law and Discrimination Based on Sexual Orientation
• It is still legal in 29 states to fire someone based on their sexual orientation.
• Arizona SB 1062
• The Arizona legislature passed a law that would allow individuals and
businesses to refuse service to someone on the basis of their sexual orientation
so long as it was related their religious beliefs.
• Governor Jan Brewer vetoed the bill.
• Indiana
• Indiana did pass a law that would allow businesses to refuse service on the
basis of the business owner’s religious beliefs to LGBT people.

5. Gay Marriage Law (2010)
• The States
• The Massachusetts Supreme Court held that the state could not discriminate against same-sex
marriages.
• Goodridge v. Department of Public Health (2003)
• This decision really started the current debate.
• Five states allow for same-sex marriage:
• Massachusetts (State Supreme Court ruling, 2003)
• Goodridge v. Department of Public Health (2003)
• Connecticut (State Supreme Court Ruling, 2008)
• Kerrigan v. Commissioner of Public Health (2008)
• Iowa (State Supreme Court ruling 2009)
• Varnum v. Brien (2009)
• Vermont (legislation, 2009)
• New Hampshire (legislation, 2010)
• Maryland (legislation, 2012)
• New York (legislation, 2012)
• Washington (legislation, 2012)
• Maine (referendum 2012)
• Also: District of Columbia (legislation, 2009)
• Some states grant limited rights (domestic partnerships):
• Nevada, Oregon, Colorado
• Civil Unions:
• New Jersey
• Although some other states grant VERY limited rights, we can say that all other states have banned gay
marriage.

6. Sexual Orientation and Public
Policy: Gay Marriage (2014)
• The States
• Seventeen states allow for same-sex marriage:
• Massachusetts (State Supreme Court ruling, 2003)
• Goodridge v. Department of Public Health (2003)
• This decision really started the current debate.
• Connecticut (State Supreme Court Ruling, 2008)
• Kerrigan v. Commissioner of Public Health
(2008)
• Iowa (State Supreme Court ruling 2009)
• Varnum v. Brien (2009)
• Vermont (legislation, 2009)
• New Hampshire (legislation, 2010)
• Maryland (legislation, 2012/popular vote 2013)
• New York (legislation, 2012)
• Washington (legislation, 2012/popular vote 2012)
• Maine (referendum 2012)
• California (Supreme Court ruling, 2013)
• Hollingsworth v. Perry (2013)
• Rhode Island (legislation, 2013)
• Delaware (legislation, 2013)
• Minnesota (legislation, 2013)
• New Jersey (court decision, 2013)
• Also: District of Columbia (legislation, 2009)
• Hawaii (legislation, 2013)
• New Mexico (court decision, 2013)
• Illinois (legislation, 2014)
• Some states grant limited rights
(domestic partnerships):
• Nevada, Oregon, Colorado
• 33 states ban same-sex
marriage

7. Sexual Orientation and Public
Policy: Gay Marriage
• California
• In 2000, the citizens of California passed
Proposition 22, which affirmed a legal
understanding that marriage was a union between
one man and one woman.
• Gay marriage was legal between June 2008 and
November 2008 after a State Supreme Court
decision ruled that same-sex couples have the right
to marry.
• In 2008, California citizens passed Proposition 8,
which amended the California Constitution to
provide that “only marriage between a man and a
woman is valid or recognized by California.”
• The nearly 18,000 same-sex marriages performed
during this time are still legally recognized.
• A federal district court judge (Northern District of
California) struck down Proposition 8 in the case
of Perry v. Brown (2010).
• The 9th Circuit upheld the decision of the district
court, but on a very limited basis.
• The United States Supreme Court just heard oral
arguments in 2013.

8. Sexual Orientation and Public
Policy: Gay Marriage
• Perry v. Schwarzenegger (rational basis)

9. Sexual Orientation and
Public Policy: Gay Marriage
• Hollingsworth v. Perry, 570
U.S. ___ (2013)
• Does the Equal Protection
Clause of the Fourteenth
Amendment prohibit the state of
California from defining
marriage as the union of one
man and one woman?
• In a 5 – 4 decision, the Court
decided that the petitioners who
supported Proposition 8 did not
have standing in the case.
• Thus, the decision of the 9th
Circuit (a limited decision)
stood.

10. Sexual Orientation and Public
Policy: Gay Marriage
• Congress
• Defense of Marriage Act of 1996 (DOMA)
• Denies the recognition of same sex couples by the federal
government.
• “In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word “marriage” means only a legal
union between one man and one woman as husband and wife, and the
word “spouse” refers only to a person of the opposite sex who is a
husband or a wife.”
• The Act also allows states to refuse to recognize same-sex
marriages performed in other states (Article IV, Section 1, Full
Faith and Credit Clause).
• Until 2013, denied federal benefits to same-sex couples (there are
over 1,000 benefits).

11. Sexual Orientation and
Policy Issues: Gay Marriage
• United States v. Windsor (2013)
• Edith Windsor and her partner were
married in Toronto and their marriage
was recognized by the state of New
York when they moved.
• Thea Spyer left her estate to her
partner when she died, and the
federal government imposed an
estate tax of $363,000 because
federal law does not recognize their
marriage.
• The Supreme Court held that the
purpose and effect of DOMA was to
impose a “disadvantage, a separate
status, and so a stigma” on same-sex
couples in violation of the Fifth
Amendment’s guarantee of equal
protection.

12. Gay Marriage Law (2015)
• Obergfell v. Hodges (2015)
• The banning of gay marriage by states is unconstitutional.
• All 50 states must now allow for gay marriage.

13. Sexual Orientation and Public Policy: Don’t Ask, Don’t Tell

14. Sexual Orientation in the
Public Workplace I
• Colvin, R. A. (2000). Improving state policies prohibiting
public employment discrimination based on sexual
orientation. Review of Public Personnel Administration,
20(2), 5-19.
• Lewis, G. B. (1997). Lifting the ban on gays in the civil
service: Federal policy toward gay and lesbian employees
since the Cold War. Public Administration Review, 57(5),
387-395.

15. Legal Standards and Discrimination
Based on Sexual Orientation
• Romer v. Evans, 517 U.S. 620 (1996)
• Video next time.
• Standard used: rational basis
• Bragdon v. Abbott, 524 U.S. 624 (1998)
• The Supreme Court held that those with AIDS/HIV are protected under the Americans
with Disabilities Act and therefore cannot be discriminated against in employment.
• (Subject of the film Philadelphia)
• No standard applied because only tangentially related to sexual orientation.
• In 2008, Congress amended the ADA to include AIDS/HIV as protected under the
Americans with Disabilities Act.
• United States v. Windsor, 570 U.S. (2013)
• No clear standard established but subsequent cases decided by lower courts used
intermediate scrutiny.
• Obergfell v. Hodges, 576 U.S. ___ (2015)
• No clear standard used.

16. The Supreme Court and Discrimination
Based on Sexual Orientation: Private Sexual
Activities Between Consenting Adults
• Bowers v. Hardwick, 478 U.S. 186 (1986)
• An Atlanta police officer came to Michael Hardwick’s home to serve him with an arrest warrant for failing to
appear in court.
• After a roommate granted the officer access, the officer found Hardwick engaged in sodomy with another
man.
• The officer then arrested Hardwick for violating a Georgia law that prohibited the practice of oral or anal sex.
• In a 5 – 4 decision, the Supreme Court upheld the Georgia law stating that fundamental liberties did not
include the right to engage in sodomy.
• The dissenters, including Harry Blackmun, argued that this was an issue of privacy rights and that the law
should be struck down.
• Lawrence v. Texas, 539 U.S. 558 (2003)
• After receiving a complaint about a weapons disturbance, police entered the apartment of John Lawrence and
found Lawrence and Tyrone Garner engaged in a private, consensual sexual act.
• Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding
two person of the same sex to engage in certain intimate sexual conduct.
• Lawrence and Garner challenged the Texas law as a violation of the equal protection clause and due process
clause of the 14th Amendment.
• The Supreme Court would decide that the issue is about more than just sexual conduct, it is about the privacy
between couples.
• Bowers v. Hardwick is overruled and the Texas law is unconstitutional as it furthers no state interest that is
worth justification of intruding into the private lives of individuals.

17. The Supreme Court and Discrimination
Based on Sexual Orientation
• Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
• James Dale was a lifelong member of the Boy Scouts of American, achieving the rank of Eagle Scout and
eventually becoming an assistant scoutmaster.
• After he admitted to being gay, he received a letter from the Monmouth Council revoking his adult
membership in BSA on the basis that the Scouts “specifically forbid membership to homosexuals.”
• Dale filed suit claiming that the action violated a New Jersey law banning discrimination on the basis sexual
orientation.
• The Scouts countered by claiming that they had a First Amendment right to free association.
• In a 5 – 4 decision, the Supreme Court, based on the freedom of association under the First Amendment
allowed the Boy Scouts to exclude homosexuals.
• No legal standard applied for sexual orientation.
• Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006)
• Congress adopted the Solomon Amendment which requires colleges and universities to give military
recruiters the same access as other employers on campus or they would lose federal funding.
• The Amendment was passed in response to colleges refusal to allow military recruiters on campus due to the
military’s policies with respect to homosexuals.
• FAIR, an association of law schools with policies against discrimination based on sexual orientation, filed suit
arguing that the Solomon Amendment was a violation of the freedom of speech and association protected by
the First Amendment.
• The district court disagreed but the court of appeals agreed stating that it forced the law schools to choose
between its First Amendment rights and federal funding.
• In an 8 – 0 decision the Supreme Court decided that the Solomon Amendment regulates conduct and not
speech and the power for Congress to raise an army supersedes any claimed free speech rights.
• No legal standard applied for sexual orientation

18. Sexual Orientation Policy
Issues: Political Firsts
• Presidents
• None have been openly gay.
• Members of Congress
• First Democrat to openly come out:
Barney Frank (MA)
• First Republican to openly come out:
Jim Kolbe (WI)
• State Governor
• Jim McGreevey (Democrat) from
New Jersey
• Only came out during resignation
speech
• Only governor in U.S. history to come
out.
• Alabama State Legislators
• Patricia Todd (Democrat)

19. Sexual Orientation and Policy
Issues: Employment Discrimination
• Employment Non-Discrimination Act of 2013 (ENDA)
• Introduced in the 113th Congress by Rep. Barney Frank and others.
• Would prohibit discrimination based on sexual orientation for
businesses with more than 15 employees.
• Senate approved the bill on November 7th of 2013 by a 64 – 32
bipartisan vote.
• The bill is now in the House where the bill is awaiting a vote that
would force members to vote on the bill in the form in which it
appeared from the Senate.
• As of September 18th, the bill has 190 of the 218 votes it needs to
require a floor vote.
• If the bill does not pass, what should be done to help end
employment discrimination based on sexual orientation?

20. Sexual Orientation and Policy
Issues: Gay Marriage
• Although strides have been made toward equity in
marriage for same sex couples, there is still a long road
ahead.
• What does it mean in terms of gays and lesbians in the
workplace if there is not marriage equality?

21. Sexual Orientation and Policy
Issues: Gay Marriage Public Opinion
• Survey Methods
• Results for this Gallup poll are based on telephone interviews
conducted May 2-7, 2013, with a random sample of 1,535 adults,
aged 18 and older, living in all 50 U.S. states and the District of
Columbia.
• For results based on the total sample of national adults, one can say
with 95% confidence that the margin of sampling error is ±3
percentage points.
• Interviews are conducted with respondents on landline telephones
and cellular phones, with interviews conducted in Spanish for
respondents who are primarily Spanish-speaking. Each sample of
national adults includes a minimum quota of 50% cellphone
respondents and 50% landline respondents, with additional minimum
quotas by region. Landline telephone numbers are chosen at random
among listed telephone numbers. Cellphone numbers are selected
using random digit dial methods. Landline respondents are chosen at
random within each household on the basis of which member had the
most recent birthday.
• Samples are weighted to correct for unequal selection probability,
nonresponse, and double coverage of landline and cell users in the
two sampling frames. They are also weighted to match the national
demographics of gender, age, race, Hispanic ethnicity, education,
region, population density, and phone status (cellphone only/landline
only/both, cellphone mostly, and having an unlisted landline
number). Demographic weighting targets are based on the March
2012 Current Population Survey figures for the aged 18 and older
U.S. population. Phone status targets are based on the July-December
2011 National Health Interview Survey. Population density targets
are based on the 2010 census. All reported margins of sampling error
include the computed design effects for weighting.
• In addition to sampling error, question wording and practical
difficulties in conducting surveys can introduce error or bias into the
findings of public opinion polls.

22. Sexual Orientation and Policy
Issues: Don’t Ask, Don’t Tell
• Log Cabin Republicans v. United States (2010)
• U.S. District Court struck down the don’t ask, don’t tell policy.
• Judge applied intermediate scrutiny
• The United States government sought to stay the order and was
successful on November 1, 2010.
• The Supreme Court denied a motion to vacate the stay on
November 12, 2010.
• On July 6th, 2011, the 9th Circuit Court of Appeals lifted a stay on
the injunction of the Don’t Ask, Don’t Tell law.
• The government is sought to reinforce the stay.
• The case became moot when…the Don’t Ask, Don’t Tell Repeal
Act of 2010 was signed by Obama on December 22, 2010.

23. Sexual Orientation in the
Public Workplace II
• Riccucci, N. M., & Gossett, C. W. (1996). Employment
discrimination in state and local government: The lesbian
and gay male experience. American Review of Public
Administration, June, 175-200.

24. Conclusion
• All of these issues:
• Represent opportunities to exclude gays and lesbians from the workforce and thus create
a less diverse organization.
• Diversity – respect for individuals of different characteristics such as color, race, ethnicity,
gender, age, religion, sexual orientation, or way of thinking.
• Why is it necessary?
• Diversity in public administration mirrors the diversity in the population.
• Diversity in public administration provides a work environment that is open to a variety of lifestyles and
ides.
• Diversity in public administration eliminates the “good old boys” network (similar characteristics, similar
values).
• Diversity allows administrators to deliver public services more effectively.
• The lack of laws to protect gays and lesbians from employment discrimination may cause them to conform. Why is this a
problem?
• Gays and lesbians may not have representation, either active or passive, in public organizations.
• This is a problem of equity as gays and lesbians are not equally represented in government.
• Even if gays and lesbians are passively represented in the public work force, they may choose not to engage in
active representation.
• Create a problem that the needs of gays and lesbians in the citizenry, via policy, will not be served by public
organizations.
• About 4.6% of the population identifies themselves as gay, lesbian, or bisexual.
• Equity – all individuals are equal in their moral worth, are entitled to equal treatment under law,
and should have an equal political voice.
• Creates problems of equity as seen in the various issues of discrimination discussed above.
• Social equity – the fair, just, and equitable management of all institutions serving the public directly or by
contract; the fair, just, and equitable distribution of public services and implementation of public policy; and
the commitment to promote fairness, justice, and equity in the formation of public policy.
• How can equity problems be fixed if there is a lack of representation (diversity) in the public workspace?