Civil Rights Denied: PA’s Proposed Constitutional Same-Sex Marriage Ban

Logo of Freedomt to Marry, Inc.

“working to win the freedom to marry in more states, grow the national majority for marriage, and end federal marriage discrimination. ” http://www.freedomtomarry.org/pages/about-us

A couple of days ago I posted a blog about the dueling marriage equality and same-sex marriage ban bills recently introduced into the Pennsylvania General Assembly.  Today I thought I give a more detailed argument as to how discriminatory the same-sex marriage ban is to gays and straights alike.

As previously stated, on May 7, Pennsylvania State Representative Daryl Metcalfe (R-12 Butler County) introduced his legislation (HB 1349) to create a constitutional amendment defining marriage OR its “substantial equivalent” solely as a union between a man and a woman.  That bill would amend Article I of the Pennsylvania state Constitution – the Declaration of Rights section – to take rights away from unmarried couples in Pennsylvania, whether they are same-sex or heterosexual couples.  Here’s the constitutional amendment as written in HB 1349:

“Marriage is the legal union of only one man and one woman as husband and wife and no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

Until the spring of 2012, 31 states across the country had created constitutional amendments to outlaw marriage or anything that looks like marriage between same-sex couples. The last successful attempt at this form of discrimination occurred by referendum in North Carolina in the spring of 2012; all other attempts since then to deny marriage equality have failed.

Marriage equality however has had many successes since then. Three states – Delaware, Rhode Island, and Washington – either passed a referendum OR legislation legalizing marriage equality following North Carolina’s referendum. One state – Minnesota—is expected to pass their marriage equality bill today; note, this is only 6 months after the voters in Minnesota by referendum killed their proposed same-sex marriage ban.  And one state – Colorado – passed legislation recognizing civil unions even though they have a constitutional ban on same-sex marriage.

Instead of moving forward, right-wing legislators would like to have Pennsylvania join the 31 other states that constitutionally ban-same sex marriages and/or other legal forms of relationships such as domestic partnerships and civil unions.  These Pennsylvanian legislators are making their fourth attack on same-sex couples and on unmarried people – gay or straight.  If HB 1349 passes, Pennsylvania for the first time in its history would enshrine and mandate discrimination into the state Constitution.

This amendment would take rights away from unmarried couples in Pennsylvania, whether they are same-sex or heterosexual couples.  The way this amendment is written would affect all unmarried couples, victims of domestic violence if they are not married to their abuser, and could threaten Pennsylvania’s anti-discrimination laws

Effect on All Unmarried Couples – Gay or Straight

Currently, Pennsylvania statute recognizes only marriages between one man and one woman.

Pennsylvania does not recognize either (1) same-sex marriages or (2) civil unions, domestic partnerships, or any other coupled-household status—whether entered into by same-sex or opposite-sex couples.  Those affected by this amendment would therefore, for example, include senior citizens who live together but are not married because of economic considerations, couples who believe they have a “common law marriage” (which is no longer recognized in Pennsylvania), and gay or straight couples who have any type of intimate relationship.

It could also threaten the lives of unmarried domestic violence victims and allow unmarried individuals to be discriminated against in housing, employment, and public accommodations.

Effect on Domestic Violence Victims

In 2004, Ohio passed their discriminatory anti-marriage constitutional amendment, which was quickly and unexpectedly used to deny protections to unmarried victims of domestic violence.  Here’s what happened.  Almost immediately, unmarried batterers argued that since they were not married, Ohio could not enforce their domestic violence law because that was treating their relationship with their partner as “equivalent to marriage.” The 2nd District Court of Appeals in Ohio agreed and ruled that the Ohio domestic violence law runs afoul of the “Defense of Marriage” amendment, passed by voters in 2004, and does not apply to “a person living as a spouse.”  As a result, unmarried defendants, who could have faced felony domestic violence charges, only faced misdemeanor assault charges.    It took several years for the Ohio Supreme Court to reverse this ruling.  In the interim, unmarried women were at the mercy of their batterers in several counties in Ohio.

The Ohio amendment is very similar to that of the one proposed for Pennsylvania.   In Ohio, by providing protection to persons living as spouses,” the domestic violence statutes created a legal status for cohabiting relationships that is “equivalent to a marriage,” according to the appeals court. The appeals court decision in Ohio then denied protection from abuse to unmarried individuals – gay or straight – because the domestic violence law gave legal standing to an unconstitutional relationship – that of an unmarried couple. The courts argument overturning these domestic violence protections utilized similar language found in Pennsylvania’s HB 1439, which states that no other legal union… or the substantial equivalent thereof shall be valid or recognized.

We have no way of knowing how the courts would rule on a similar argument should this amendment pass and become part of Pennsylvania’s Constitution.  Who knows if Pennsylvania’s Supreme Court would protect the victim or allow batterers to circumvent Pennsylvania’s Protection From Abuse (PFA) law?  We need to protect all people from domestic violence and sexual assault.  Passage of this amendment could deny the protection offered by Pennsylvania’s domestic violence and protection from abuse laws; it could even risk the very lives of unmarried people–gay or straight–because this constitutional amendment denies the rights, privileges, and protections of law to people who are not legally married or who have a relationship that is “functionally equivalent” to traditional marriage.

Effects on Employment, Education, Housing, and Public Accommodations

It also looks like current and proposed employment, education, housing, and public accommodations anti-discrimination laws at both the state and local levels might be jeopardized for unmarried individuals.  Discrimination based on marital status and family responsibilities is unlawful under a variety of existing laws. With a few exceptions, under current state and federal law, people who experience this form of discrimination must fit their claims into an appropriate legal theory—as discrimination based on gender, a violation of family and medical leave laws, or another legal theory.  In addition, many municipalities throughout Pennsylvania have passed or are considering ordinances that would make it illegal to discriminate in employment, housing, and in some cases, public accommodations specifically based on sexual orientation, gender identity and marital status.   Will the state courts, the PA Human Relations Commission, or local Human Relations Commissions be able to enforce these laws if Pennsylvania’s constitution has been amended to require unmarried couples to be treated differently from married couples?  We do not know.  Passage of HB 1439 as a constitutional amendment could put all of these protections at risk since any person, company, or school could argue that their business is mandated to deny employment, hiring, and benefits to any person who is not married.

Civil Rights Denied, Reiterated

Last, but not least, exclusion, discrimination and inequality are not the principles this state was founded upon. This discriminatory “Marriage Protection Amendment” denies unmarried heterosexual, lesbian, gay, bisexual and transgender families the protections and fairness they deserve. Heterosexual married couples and their families are afforded more than 1,000 legal protections and economic benefits provided through state and federal law, benefits and protections that are currently inaccessible to unmarried couples.  Passage of this amendment would therefore subject same-sex couples and their families to exclusion, discrimination and inequality.

The proposed amendment could also take away existing legal protections for committed long-term couples and their children, such as second parent adoptions, cohabitation agreements, co-parenting agreements, wills, living wills, powers of attorney, etc., regardless of their sexual orientation.

Gay and lesbian Pennsylvanians are our neighbors, co-workers, friends, and family member.  They pay taxes.  LGBT people should not be bullied.  They deserve the same rights, protections, and responsibilities that all residents desire and have.

Let’s all work to stop this bill now!  So I’m once again recommending that you keep up-to-date on this horrible bill as well as other LGBTQ legislation at  Equality Pennsylvania’s website.

What is Equal Pay Day and Why Should I Care?

For the last three years, my local NOW chapter—Ni-Ta-Nee NOW—has organized community education events surrounding Equal Pay Day and paycheck fairness.

A frequent question we have is, “What’s Equal Pay Day and why should I care?”  To help answer that question, we have done op-eds and interviews with the local press (See here and here).  We also create a flyer that we update each year.  As President of Pennsylvania NOW, I wrote another blog on this issue in 2011. And elsewhere on my blog site, I have commented on the need for fairness in pay.

Today, we will once again be distributing Equal Pay Day flyers in front of the gates of The Pennsylvania State University over the dinner hour today.

Why today? Because Equal Pay Day moves from year to year. For 2013, that day is April 9.

The following is a web-based version of this flyer.  The hard-copy version focuses on Pennsylvania.  I have kept that information here; I’ve also added commentary and links for information and contacts in other states.

TUESDAY APRIL 9TH 2013

EQUAL PAY DAY

IT’S THE DAY ON WHICH WOMEN’S WAGES CATCH UP WITH MEN’S WAGES FROM THE PREVIOUS YEAR.

Equal Pay Day symbolizes how far into the year a woman must work full-time, on average, to earn as much as a man earned the previous year.  In 2013, it took 2 days MORE than in 2011 and 8 days LESS than in 2012 for a woman to earn as much as a man earned in the entire year.

THE WAGE GAP

National Perspective

The wage gap shows that women, particularly women of color are paid significantly less than white men.

The Wage Gap: Lack of Equal Pay

The wage gap is the ratio of women’s to men’s median annual earnings for full-time, full-year workers. Based on these earnings, women earned just 82% of what men earned (US Bureau of Labor Statistics, 2013).

Nationally, Asian American women have the smallest wage gap, earning 88% of what the average white man earned in 2012. White women are next, earning approximately 81% of white men’s average income. African-American women (68%) and Hispanic women (59%) have the largest wage gaps compared to white men (Institute for Women’s Policy Research, March 2013).

A typical woman earns $431,000 less in pay over 40 years due to this wage gap. (Center for American Progress, 2012)

At the current rate of progress, the Institute for Women’s Policy Research estimates that it will be 2057 before women’s wages reach parity and Equal Pay Day will finally be on December 31 rather than somewhere in April of the following year!

Pennsylvania Perspective

The wage gap is just as bad, if not worse, in our state. When ranked among the other 50 states, the District of Columbia, and Puerto Rico, Pennsylvania’s wage gap placed it 34th (Women’s Law Center calculation based on American Community Survey Briefs, April 2013).  You can look up your state’s pay equity ranking at this site as well if you don’t live in Pennsylvania.

The median annual income for a woman working full-time, year round in Pennsylvania in 2011 was $37,089, compared to men’s $47,956. This is a wage gap of 77% (Women’s Law Center calculation based on American Community Survey Briefs, April 2013). A typical woman in PA earns $459,000 less in pay over 40 years due to this wage gap. This gap rises to $722,000 for women who have earned college degrees. (Center for American Progress, 2010)

WHAT CAN I DO??

If You are an Employer

If you are an employer, you can get help in examining pay practices by conducting an equal pay self-audit using the guidelines from the US Department of Labor (available at www.pay-equity.org/cando-audit.html).

If You Believe You Are Experiencing Wage-Based Discrimination

Tell your employer if you are being paid less than your male co-workers. Click here for some tips on negotiating for pay equity.

If there’s a union, ask for their help.

If discrimination persists: There are three places to file complaints – at the federal level, at the state level, and at the local level.

At the Federal Level

You can file under federal law with the Equal Employment Opportunity Commission (EEOC). Go to this link and follow the instructions.

At the State Level

You can find your state’s anti-discrimination agency website and contact information in a pdf file created by Legal Momentum starting on page 28.  Most of the agencies have a website address that you can copy and paste into your browser.  All of the agencies have a phone number that you can call for assistance.

If you live in Pennsylvania, you can file a complaint with the Pennsylvania Human Relations Commission in Harrisburg.  Contact information is available by region.  Just go to their website and look for your county’s name.  The phone number and address for your regional office is listed directly above the names of the counties served by each office.

At the Local Level

There are a few communities throughout the country that have created local ordinances that include the state-based anti-discrimination protections and have also expanded coverage to other areas (such as protections based on sexual orientation, family status, and/or family responsibilities across the life-span).

You should therefore check to see if your local county, city, or community has an ordinance providing similar protections for wage-based discrimination. If so, you can more conveniently file a wage-based complaint at the local level.  Check with your state’s anti-discrimination agency (see info above under “At the State Level”) to see if there is a local ordinance in your community.

In Pennsylvania, there are about 30 communities with such an ordinance. Your regional office of the Pennsylvania Human Relations Commission can give you this information, along with whom to contact.

One of these 30 communities in Pennsylvania is State College, PA, where the main campus of The Pennsylvania State University is located. Their ordinance covers wage-based discrimination based on sex as well as color (race), religion, ancestry, national origin, sexual orientation, gender identity or expression, familial status, marital status, age, mental or physical disability, use of guide or support animals and/or mechanical aids.  If you work within the State College, PA borough, you can file a complaint with them under their Employment Anti-Discrimination Ordinance at 814.234.7110 (Side note: I was one of the people instrumental in crafting this ordinance).

Supporting and Advocating for Paycheck Fairness

Ask your Congressional representatives to co-sponsor the Paycheck Fairness Act – HR 377 in the US House of Representatives and S 84 in the US Senate).  The Paycheck Fairness Act updates and strengthens the Equal Pay Act of 1963. It gives women the tools they need to challenge the wage gap itself.

You can find out where your representatives stand on the Paycheck Fairness Act by going to http://thomas.loc.gov/home/thomas.php. In the search box in the middle of the page, type in “Paycheck Fairness Act” and click search.  On the next page, two bills will show up—SR 84 and HR 377.  This page provides several links to information about both of these bills—text, bill history, co-sponsors, etc. If you click on “cosponsors” for each bill, you can determine if your representatives are publicly supporting the bill or not. If they are a sponsor, thank them and then ask them to call for a hearing on vote on the bill.  If they are not, ask them to sign on.

And For More Information

Visit http://www.pay-equity.org – the website created by the National Committee on Pay Equity (NCPE).  NCPE is a coalition of women’s and civil rights organizations; labor unions; religious, professional, legal, and educational associations, commissions on women, state and local pay equity coalitions and individuals.”  They are dedicated to ending wage-based discrimination and achieving pay equity. If you like what they are doing, you can join and become a member.