Gov. Sam Brownback, World's Worst Governor™, is really a shameless, pandering, religious nut. (Funny, how often those traits all go together.) Imagine: This nut job just removed legal protections for the LGBT residents of his state!
In 2007, the state of Kansas was forbidden from firing state employees because of their sexual orientation or gender identity under an executive order signed by then-Gov. Kathleen Sebelius (D). On Tuesday, the state’s sitting governor, Sam Brownback (R),abruptly rescinded this order. Before any state officials take Brownback’s action as a license to purge gay or trans workers, however, they should familiarize themselves with the Constitution and the Supreme Court’s decisions applying it in gay rights cases. If Kansas actually fires someone for being gay or trans, they are likely to find themselves on the wrong end of a federal lawsuit.
The Constitution forbids states from denying any person “the equal protection of the laws.” In the gay rights context, the Supreme Court explained most recently in its 2013 decision striking down the anti-gay Defense of Marriage Act (DOMA), “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.'”
The Court’s precedents also establish that discrimination by a state official is no less offensive to the Constitution than discrimination by an act of Congress, so if a Kansas state official fires a state employee simply because they are gay, lesbian or bisexual, they violate the Constitution — regardless of whether a state has an executive order in place banning the practice. Mere anti-gay animus, divorced from another, legitimate justification for the state official’s action, cannot justify discrimination.
Yet, while the Court’s precedents indicate that state-sponsored discrimination against gay workers is unconstitutional, LGBT Kansans should be aware of two caveats to this conclusion. The first is that, while the arc of the Supreme Court’s gay rights jurisprudence has bent towards justice in recent years, gay Americans are still caught in an odd kind of constitutional limbo that creates some uncertainty regarding the scope of their rights.
Although the word “discrimination” carries negative connotations, most forms of discrimination are entirely constitutional — and rightfully so. The government may legitimately prefer job applicants who performed well in college to those with low GPAs. Or it can discriminate against people who did not graduate from law school when hiring lawyers. Or it can choose to only throw people who committed crimes into prison while treating the rest of the population differently.