You are listening to an episode of Ask the Experts on Talk 860 WWDB AM with host Steve O and weekly guest, LGBTQ legal expert Angela Giampolo.
This week we open with a short discussion of the Respect for Marriage Act, the possibility of it passing the Senate and what this might mean for LGBTQ couples.
Angela also addresses why estate planning is so important, giving us examples from some real-life stories.
Steve and Angela also touch upon the basics of real estate law and go in depth about the value of a revocable living trust to help you and your family avoid dreaded probate.
Last week, the U.S. House of Representatives passed The Respect for Marriage Act. This is a big deal: it is the most bipartisan and widely supported pro-LGBTQ bill ever to pass in Congress. The passage is an unprecedented move in the current climate of partisan vitriol, especially when it comes to LGBTQ+ rights. 47 Republicans voted for this bill, a far greater number than the 3 House Republicans who voted for the Equality Act last year. Hopefully, this signals changing political tides concerning LGBTQ+ rights, especially rights such as marriage that have such legal significance.
With that said, the bill is limited in scope. The bill only serves to repeal the Defense of Marriage Act. The Respect for Marriage Act compels the federal government and other states to recognize same-sex marriages that were entered into under state law. An LGBTQ+ couple who were legally married in their home state would have their marriage recognized both by the federal government and other states who may not have marriage equality, an important protection considering all of the legal rights and privileges that come with a marriage certificate.
States will have to respect the marriages of other states, yet would still have the right to bar same-sex in their state. So, if the Supreme Court overturns Obergefell v. Hodges, which established that the fundamental right to marry covers same-sex couples, the Respect for Marriage Act would not stop any state from once again banning marriage equality.
The Respect for Marriage Act is also limited because of the political reality of the current Congress. Its prospects in the Senate are unclear, as at least 10 Republican senators would need to join all 50 Democrats to bypass the filibuster. The broad support in the House was a positive sign, but progress in the Senate is often much slower.
While the Respect for Marriage Act’s passage in the House is an important first step, there is much more Congress needs to do to codify LGBTQ+ rights at the federal level. Under this law, the federal government would still be required to respect same-sex couples’ already-existing marriages, as would other states in many circumstances, but a state that stopped issuing marriage licenses to same-sex couples would not violate the Respect for Marriage Act. Beyond this bill, Congress needs to act on the plethora of legal attacks on LGBTQ+ rights at the state level, especially regarding the transgender community and students in public schools. These increasing threats against our rights at multiple levels requires Congress to be more aggressive in seeking to protect our rights, because LGBTQ+ lives depend on it.
Episode Transcript
Speaker 1 (00:05)
Hey, good morning, Philadelphia. Welcome to another Ask the Expert, we’re with you every Tuesday from ten to eleven. We bring on Philadelphia’s finest experts in the area of legal, health, financial and home improvement. And this is going on our 7th year now. Amazing. We’re also in other cities, but our first show every week at 10:00 is now my favorite. And she’s got the clock behind her, which means she is in town. Let me welcome you to attorney Angela Giampolo. Good morning, Angela.
Speaker 2 (00:51)
How are you?
Speaker 1 (00:52)
And this is just kind of an inside thing. I just got something and thank you. I got that. Well, I got to ask you something, and Angela and I never rarely get into politics at all, but I thought about you this week and Senator Cruz made a big enough statement. It’s been running everywhere and I want to get your thoughts on it. It was about the, I guess, marriage equality in 2015 that he said it should have never been allowed. Did you see that?
Speaker 2 (01:32)
I mean, he said it back in 2015. So he’s not saying anything that he and probably a lot of other people his comrades don’t already think. But yeah, now post Roe, now is the time for politicians to sort of reiterate and vocalize what their stance would be if there was a vote. Because one of the things that the President can do and or the Senate is a Marriage Equality Act, right. So New Jersey, for instance, I’m licensed in PA and in New Jersey, my main office is in the Gayborhood in Philadelphia, but we have an office in New Jersey. And about nine or ten months ago now, New Jersey codified marriage equality, right? Meaning it is law that LGBTQ folks can marry in New Jersey. So it would require a vote of the entire House and two thirds Senate right. To undo that very hard, much harder than overturning a case. And like with Roe in Pennsylvania and sort of all over the news, you’re hearing states calling on legislatures to codify abortion, right? Like put it in law in the state that abortion is a right. So now you have the federal government talking about a Marriage Equality Act, knowing that if the question goes up to the Supreme Court that it will likely be overturned.
Speaker 2 (03:05)
So trying to sort of get ahead of that happening, they’re calling on legislators to bring forth a Marriage Equality Act, sort of the antithesis of DOMA, the Defense Against Marriage Act. Right. So now you have politicians like the Ted Cruz’s of the world that are vocalizing now, like, guess what? In 2015, I thought it was wrongly decided and I think it’s wrongly decided now. And if it were to come up for a vote right, I would vote against it. Yeah, it feels out of left field because Roe v. Wade was about abortion and not about LGBTQ rights. But we all know that when it kicked up was, oh, wow. If Roe v. Wade could be overturned and a question like abortion left to the states, then without fail, marriage equality could be overturned, and whether or not LGBT folks can get married will be left to the states. So you have politicians talking about it now like they were in 2015.
Speaker 1 (04:15)
Is that good or bad?
Speaker 2 (04:19)
It means that everybody who’s worried about what’s going to happen if it goes up to the Supreme Court is rightfully so worried. Right. Because you have a lot of people coming to me. So it’s bad because, to answer your question, is it good or bad? It is bad because it means that we are truly next on the chopping block. So any LGBTQ folks out there who, when Roe v. Wade is overturned, didn’t get worried, still don’t think, oh, that doesn’t apply to me. That’s abortion, how could it apply to my marriage? Or how could it apply to LGBTQ folks? This is proof that the Ted Cruz’s, the rich Republicans, like all the anti LGBTQ folks, are now talking about it again, because it’s political discourse. The way that I’ve been describing it to clients is your house is not on fire, but the house three doors down from you on your block is on fire. And if the house three doors down from you is on fire, wouldn’t you be like, hey, babe, let’s get our things together. Let’s prepare the house three doors down on fire. Pack up. You know what I mean? So your house is not on fire, but getting your estate planning in order, any confirmatory adoptions in order, transgender name changes or gender marker changes in order that’s you preparing your home to getting it in order, because the house three doors down is on fire.
Speaker 2 (05:48)
And so the fact that Ted Cruz is talking about that is proof that the house three doors down is on fire. And it’s coming this way and the roofs are made up.
Speaker 1 (05:56)
Strong.
Speaker 2 (05:57)
Another analogy.
Speaker 1 (05:59)
Angela, I don’t want to go near abortion, but marriage equality, I don’t understand. I mean, I guess I was closed minded at one time, but you learned I kind of feel bad that I was saying. Equality should be it’s so important. Why are people still now, here in 2022, still so close minded?
Speaker 2 (06:29)
Well, Steve, so I feel like if I could change your mind on marriage equality, then one day I’m going to change your mind on abortion because you keep saying we’re not going to talk about it because clearly, you know, we have diverging opinions. We haven’t talked about it yet, but maybe we’ll save a whole show just for open dialogue where no one is angry and we just speak openly, because I feel like nobody does. And if anything, this show is a safe place for that. And so to have us just have a whole show where we just come up with questions, where we actually talk about it, that would be wonderful.
Speaker 2 (07:05)
Yeah. And I think that would be really good.
Speaker 1 (07:08)
The whole thing about your show, Angela, is you want to educate people. And I always felt like, gosh, if we could just touch one person each week, wow, that would be amazing.
Speaker 2 (07:22)
Next week, it’s going to be you.
Speaker 1 (07:24)
Okay.
Speaker 2 (07:31)
But to your point about marriage equality, and you saying it doesn’t make sense to you and you feel bad, to me, what is most confusing is Justice Clarence Thomas, right? So you had Loving v. Virginia so for ever, we had interracial marriages being illegal, and people couldn’t marry. And so now you have a Supreme Court justice, black man married to a white woman, who is ultimately one of the leaders of overturning marriage equality and making contraception illegal. So just as Clarence Thomas, to me, when you say it doesn’t make sense, to me, that is what makes the least amount of sense, because what he would be overturning and in his concurring opinion, what he calls to overturn inherently overturns his right to be married to Jenny, his wife. Right. It’s based on the same progeny of cases. So it literally doesn’t make sense, at least coming from him. And it was his concurring opinion that sort of led the charge. Right. We don’t know as explicitly where the other Supreme Court justices land as explicitly as Justice Clarence Thomas. So that’s what makes the least amount of sense to me. And ultimately, what they said is that the right to privacy is not inherent in the Constitution, and they’re not wrong in the sense that it’s not written into the Constitution.
Speaker 2 (09:22)
The word privacy does not make an appearance in the Constitution, and they’re textualist, they’re originalists. They go by what’s in the text of the Constitution, and it’s not written. Nowhere will you find the word privacy in the Constitution. So they’re right there. But then it depends on whether or not you’re a textualist, which means that the text was written whether it’s 300 years ago, 700 years ago, that whatever the text is that governs however many years later. And there are other jurisprudential scholars and Supreme Court justices who believe that it’s a living, breathing document. And, yes, at one point, founding fathers had to write the text because someone had to write it. Someone had to put pen to paper, but that they didn’t mean for that pen to paper to be literal moving forward, that 350 years ago, the humans reading it cannot read into it anything that there’s nothing inherent in the text of the Constitution. So starting with the Griswold case and sort of the progeny moving forward, the inherent right to privacy was read into the Constitution, okay? And that’s what they’re saying is not there. And so any right that has come since then, Griswold was contraception, right.
Speaker 2 (10:52)
Yet Loving v. Virginia, the right to privacy in your own home. Decriminalizing of gay sex sodomy, in 2003, Lawrence v. Texas, we couldn’t even talk about marriage equality until it was legal for us to even have sex, which was only in 2003. 911 was 2001. It was still illegal in the whole country for gay men to have sex, let alone get married, in 2003. So then that was overturned. And then we have the Windsor case and then overshow and then Bostock, which is sort of different in employment. But I don’t think that answers your question around it not making sense. I guess I just no, I understand.
Speaker 1 (11:34)
Where you go yes.
Speaker 2 (11:36)
When anyone says it doesn’t make sense, I go right to Clarence Thomas and him being a black man married to a white woman, how nothing about that makes sense.
Speaker 1 (11:43)
Anyway, today we had planned and we are talking about employment law as it pertains to the LGBTQ community because Angela, attorney Angela Giampolo, she really specializes and works with the LGBTQ community. And we get into family law, estate planning, real estate law, business law, because they all kind of really coincide with each other. But today we are talking about the employment law. I have got tons and tons of questions for you. When I heard Ted Cruz, I’ve got to ask Angela about this, and it should be open, not just her and I, but to our listeners. So I want to start off with, is sexual orientation a protected category or not?
Speaker 2 (12:43)
Yes, so it is now. So the last group of cases from the Supreme Court gave us Bostock, which amended Title VII of the Civil Rights Act of 1964 and said that sexual orientation, gender identity is a protected class and regardless of the laws of your state. So, Pennsylvania, we still do not have employment discrimination protection at a state level for LGBTQ folks. That is not a law that Pennsylvania has passed. New Jersey has had it quite some use over a decade. And so the state in which you live in may or may not have employment discrimination protection. However, now through the bus stop, you have it at a federal level through Title VII. So it’s a protected class. There are limitations to the protections there. So going literally two years, almost to the day since that Supreme Court case came down, who does the antidiscrimination laws apply to? I know that you got to have something like more than 15 employees follow the federal employment laws.
Speaker 2 (14:08)
Right. For the commercial, we talked about Boss Talk and the Supreme Court case that provided federal protections under Title Seven. And I said there are limitations to Title Seven, and so there may not be protections in the state in which you live and in which case, like here in Pennsylvania, for instance. So then the limitations could hurt you because millions of Americans work for a small company, including employees of mine. Right? Obviously, not that I would discriminate against anyone due to their sexual orientation or gender identity, but unless it’s Niko or I right. So we’re a company under 15 people. And so if I did discriminate against an employee, then Title VII would not be applicable, and then the employee would be in Pennsylvania and ultimately not have any recourse. So Title VII applies to entities or companies in excess of 15 employees, which can be very limiting with the millions and millions of small businesses that we have in this country.
Speaker 1 (15:24)
Well, does a person have to be an employee to be protected by discrimination? I mean, what about candidates?
Speaker 2 (15:31)
Candidates, interview candidates, but also potentially 1099 independent contractors per DM contractors, depending on the scenario, but also interview candidates? For sure. There are companies who hire I have worked with companies even on how to make their interview process more inclusive. There can be a situation that can happen in an interview. There can be discrimination in the actual interview, or there can be discriminatory practices in how people interview. Abercrombie and Fitch is a great example of that in terms of a case that went all the way up to the Supreme Court with both how they interviewed and the types of people, the only people that they hired in their interview process. So, yeah, you don’t just have to be an employee, a W-2 employee.
Speaker 1 (16:34)
God. I would think that a company, especially a larger company, would want to consult with you on what and what they can’t do or say. Do you ever get companies that just come to you for consultation?
Speaker 2 (16:52)
Yeah, either consultation or what’s been happening a lot lately, especially since we just came off of Pride Month, is to talk to their company, their employee resource group, and or their company about LGBTQ rights. So Waymo is a subsidiary of Google and I spoke to them during Pride Month. That is their subsidiary that’s working solely on an autonomous driving car. There’s also a subsidiary of Phillips called Signify. And I spoke to their pride group. I’m in talks with other corporations to speak to their Pride groups in two, three, even though Pride Month is over. So, yeah, there are a lot of large corporations, Fortune 500 companies, that are approaching me just to speak to them and then also to hire me to consult on either their employee handbooks, their guidelines, their policies, HRC mineral’s campaign reviews, the corporate policies of the Fortune 500 and other companies, and then grades them for what’s called the Corporate Equality Index. And I’ve been hired by both municipalities and corporations to help them increase their score with the HRC and their Corporate Equality Index and municipalities with their municipality Quality Index.
Speaker 1 (18:24)
This is really getting off the subject, but I trust you so much and I trust your opinion so much. I believe this past weekend in Philadelphia, there was a parade, and it was a Sesame Street parade. Two black children went up to this is a parade parades move. Two black children went up to one of the characters to try to get their picture taken with them, and the character kind of waved them off. Now they’re going to be sued for and of course, the attorney who is involved in this is known for cases like this. But is there a case there for any kind of discrimination?
Speaker 2 (19:23)
Probably not. I mean, especially if there was a parade that again, I don’t know who put on the parade, if there was Sesame characters, like what organization put on the parade, but let me back up. Can they be sued? It sounds like they already have been. So unfortunately, in this country, I always say being sued is not like an elective surgery. Like you can choose to get your nose done. When you get sued, you don’t have a choice but to defend it.
(19:55)
Right.
Speaker 2 (19:56)
And if we’re very litigious in this country, and I say that being Canadian, that type of lawsuit would not be lodged in the first place in most other countries. So can they be sued? Yes, they can. They have been. Apparently this lawyer, I’ll look it up files these types of cases, probably to get their name in the paper, just notoriety and whatnot. Now, will it go anywhere? No, my first thought is some sort of sovereignty exemption, right? So it was a parade on public streets, even safety exemption, like, they waived the kids off, they were moving, the parade was moving. I haven’t heard of this. And right off the bat, my brain is coming up with a bunch of defenses against the lawsuit that would have nothing to do with discrimination. So I don’t see it going anywhere, but I will google it after we get off and look into it further. And if I have more thoughts, I’ll touch on it next week. But yeah, that’s what stuck about this country, ultimately.
Speaker 1 (21:10)
Yeah, I hear you. When you get calls when it’s about employment law, what would you say is the number one complaint that you get calls on as it pertains to employment law?
Speaker 2 (21:27)
Definitely transgender folks calling around, just discrimination in the workplace. Like, without fail, if I had to take ten calls, I’d say seven of them are from trans folks, gender nonbinary folks in some way being discriminated against, misgendered a lot over the weekend. I’ll get a lot of emails on Sundays or Mondays about occurrences that occurred on a Friday or Saturday night with bouncers, mistreating, misgendering them, maybe harassing them, or following them in bathrooms that otherwise wouldn’t occur to assist people in the same establishment. A lot of repeat establishments, I won’t name them, but a lot of establishments that are local to the area where a lot of complaints around the same types of the same establishments and the same types of establishment bars, restaurants, Friday nights, Saturday night bouncers. But I would say that’s not the type of issue that’s like the demographic or community, but I would say definitely the trans community, number one. And then as far as issue, it could be both employment, but also a lot of nightlife being mistreated out and about when people are trying to enjoy themselves and patroning establishments.
Speaker 1 (23:01)
Well, we only have a few minutes left. I wanted to ask you, what is at will employment situation?
Speaker 2 (23:08)
Yeah, so that’s kind of an easy question to wrap up. So Pennsylvania is an at will state. I don’t know about Florida, but it’s an at will state where you’re not guaranteed an employment agreement, which means if you’re an at will employee, the boss can come in and say, I’m firing you because you’re gay. Let’s say because I hate that yellow shirt or because you smell. I mean, it could be any reason they can come in and you’re an at will employee and they can terminate you at will. And so, if nothing else, if you’re faced with an at will employment choice, to the extent that you can advocate for yourself to have an employment agreement, do so. Okay? That’s my biggest piece of advice. We’ll end on that. If you have the ability to advocate for an employment agreement, that that right there binds you and rises your level of protection even more.
Speaker 1 (24:10)
This show just goes by so fast. But Angela will be with us again next Tuesday at 10:00. Attorney Angela Giampolo, and we talk about LGBTQ law, community law, and thank you so much. You know how much I respect your opinion, and I learn something new every week. And that’s what we’re hoping our listeners will get. Angela, give everybody your phone number and how they can reach you.
Speaker 2 (24:39)
Absolutely. So feel free to give me a call, 215-6452 416, and you can reach me at my website at giampololaw.com and I [email protected].
Speaker 1 (24:52)
Wonderful. Angela will be back with us next week. Angel, have a wonderful week. Be sure to tune in every Tuesday at 10:00 a.m. When Angela Giampolo is the guest on Ask the Experts on 860 www and online at WWDB am.com.