Last week the Obama administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage for federal law purposes as a legal union between a man and a woman. This development was welcomed by gay rights advocates.
However, we are still a long way away from establishing comprehensive federal anti-discrimination mandates to protect homosexuals. The Employment Non-Discrimination Act (ENDA), which would ban workplace discrimination based on sexual orientation and gender identity has been introduced in almost every Congress since 1994 but has failed to pass.
ENDA would be consistent with other well-established civil rights protections. The civil rights statutes can be understood to protect discreet and insular minorities with a history of discrimination. This civil rights model would appear to encompass the gay community. In the alternative, the law can be understood to prohibit discriminatory conduct based on effectively immutable characteristics. Many now believe that sexual orientation is biological in nature, and I would argue that it is at least as immutable as religion, which is a protected characteristic.
I have written extensively about the concept of immutability in employment discrimination law in an article that is forthcoming in the William and Mary Law Review. What do you think, will American society soon be prepared to support legislation such as ENDA?