I have a question.
It's not about boys and girls again, is it? Because I told you to ask your parents.
Well, sort of. It's about a new decision I heard about that says that it's illegal for employers to discriminate against someone because they're gay.
You're talking about the decision by the United States Court of Appeals for the Seventh Circuit yesterday, holding that discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964.
Yes. Exactly. That's what I meant. The court and . . . and the title. That.
What's your question?
I don't get it. Why is a court just deciding this now? Is it a new law? Did the court change its mind from before?
No. It's the same old law it's been since 1964. And there have been signs that a court would eventually come to this conclusion for a while.
I still don't get it.
The Civil Rights Act of 1964 was the groundbreaking federal civil rights legislation that prohibited racial discrimination based on race, national origin, religion, and sex. It prohibited discrimination on those grounds in employment, schools, and "public accommodations" — meaning restaurants, stores, and other places open to the public. Title VII of the Civil Rights Act of 1964 prohibits discriminating based on race or sex or religion in employment — hiring, firing, work treatment, and so forth.
I'm with you so far.
Imagine my delight. Anyway, Title VII only prohibits discrimination on specified grounds — race, national origin, religion, and "sex" (what might be called gender by some people now). Not every type of discrimination violates the Civil Rights Act of 1964, though other federal or state or local laws might apply. So previously courts have said that discriminating against someone in employment because they're gay or lesbian doesn't violate Title VII.
So what's this case about?
A woman named Kimberly Hively, an adjunct professor at Ivy Tech Community College in South Bend, Indiana, sued the college in federal court under Title VII, claiming that she was turned down for a series of full-time jobs because she is a lesbian. The federal district court dismissed, holding — based on established precedent — that sexual orientation is not a "protected class" under Title VII. She appealed to the United States Court of Appeals for the Seventh Circuit, arguing that some Supreme Court precedent should be read to allow courts to treat sexual orientation as a protected class. The three-judge panel that heard the case rejected her argument, noting that settled precedent required it to do so, even if there were plausible arguments that precedent was incorrect. A majority of the judges of the Seventh Circuit then voted to hear the case en banc — that is, to have it decided by all of the court's judges. A three-judge panel of a Court of Appeals is generally bound by that court's past cases; an en banc group can overturn that court's past cases.
So the judges sitting en banc went the other way?
The Court explained that its past cases had been based on the idea that Title VII's prohibition on sex discrimination means you can't discriminate against a man because he's a man or a woman because she's a woman. The court expanded this approach to take into account the concept of "gender conformity." The argument is this: discriminating against someone because they don't fit your stereotype of how a man or woman is supposed to act is the equivalent of discriminating against them based on their gender. So treating a lesbian differently than a straight woman is sex discrimination because if a man was attracted to women you'd be ok with it but if a woman is attracted to women you object, and the difference is the gender of the person.
Did they just make that up out of the blue?
Well, not exactly.
The notion has been developing for years, primarily in the area of sexual harassment law. Sexual harassment is treated as a form of sex discrimination under Title VII. For some years, a number of courts have treated sexual harassment of gays and lesbians as a Title VII violation, reasoning that the harassment is "because of sex" in the sense that it's because the victim's sexual orientation does not match the harasser's expectations for that gender. In addition, a couple of Supreme Court cases support the notion that "sex stereotyping" can be a form of discrimination prohibited by Title VII. So court-watchers have expected for years that a court would eventually confront this concept and resolve it one way or the other.
Here the court also argued — somewhat persuasively — that the Supreme Court's precedent about interracial marriage supports its conclusion. In Loving v. Virginia the Supreme Court found that bans on interracial marriage violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Court there rejected the argument that miscegenation laws don't discriminate because they bar everyone, not just minorities, from marrying "outside their race." By analogy, the Seventh Circuit argues, discrimination based on sexual orientation is unlawful discrimination even if it is applied equally to men and women.
What happens now?
The college will seek review by the United States Supreme Court, and that Court may take it.
So is this case important?
Yes. For two reasons. First, though expected for some time, it's the first federal Court of Appeals to apply the Civil Rights Act of 1964 to sexual orientation, which dramatically expands the reach of that Act and, if sustained, offers substantial and important protection to gays and lesbians against discriminating in employment, education, and public accommodations. It would effectively thwart efforts by many states to protect the right to discriminate against gays and lesbians, a recent trend. Abruptly, millions of gays and lesbians who could be fired or denied service last week now have an argument that federal law protects them.
Second, it's very important for wonky lawyer reasons.
The decision, concurrence, and dissent are all notable for how meta they are — how much they address the concept and process of judging and overturning precedent, and how Congressional intent is to be read. The majority opinion is very up front about its concept that interpretation of a statute (and, presumably, of the Constitution) is not static and develops over time:
This is not to say that authority to the contrary does not exist. As we acknowledged at the outset of this opinion, it
does. But this court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago. The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.
Judge Posner, in concurrence, is characteristically more philosophical, explaining at length how interpretation of a text can change over time under his judicial philosophy:
It’s true that even today if asked what is the sex of plaintiff Hively one would answer that she is female or that she is a woman, not that she is a lesbian. Lesbianism denotes a form of sexual or romantic attraction; it is not a physical sex identifier like masculinity or femininity. A broader understanding of the word “sex” in Title VII than the original understanding is thus required in order to be able to classify the discrimination of which Hively complains as a form of sex discrimination. That broader understanding is essential. Failure to adopt it would make the statute anachronistic, just
as interpreting the Sherman Act by reference to its nineteenth-century framers’ understanding of competition and monopoly would make the Sherman Act anachronistic.
With rather remarkable frankness, Posner rejects the majority's attempt to premise the decision on Supreme Court precedent and forthrightly accepts a mantle of what might be called "judicial activism":
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently
to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.
That's an extraordinarily blunt statement of the judicial philosophy that conservatives attack as "legislating from the bench."
It falls to Judge Sykes in dissent to articulate the case for judicial conservatism and a limited role for courts:
This brings me back to where I started. The court’s new liability rule is entirely judge-made; it does not derive from the text of Title VII in any meaningful sense. The court has arrogated to itself the power to create a new protected category under Title VII. Common-law liability rules may judicially evolve in this way,11 but statutory law is fundamentally different. Our constitutional structure requires us to respect the difference.
It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation. The ordinary, reasonable, and fair meaning of sex discrimination as that term is used in Title VII does not include discrimination based on sexual orientation, a wholly different kind of discrimination. Because Title VII does not by its terms prohibit sexual orientation discrimination, Hively’s case was properly dismissed. I respectfully dissent
[Note how utterly anti-gay forces in America have been routed, when even dissents objecting to the extension of gay rights sound distinctly sympathetic to them, and Scalia-style rants against gay activism are increasingly rare.]
So: in addition to extending fundamental statutory protections to gays and lesbians, this case offers a clearly articulated example of differing approaches to judicial interpretation of laws and the Constitution. Based on those two factors, it is perhaps one of the most significant federal Court of Appeals decisions of this decade.
Edited to add: Scott Greenfield has thoughts and noted that the Second Circuit went the other way just a few days ago, creating a split between the circuits and increasing the chance that SCOTUS reviews it.
Second Edit: Reportedly the college will not seek SCOTUS review. But SCOTUS could accept cert on one of the other circuit's decisions abotu the issue.
Last 5 posts by Ken White
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