7th Cir­cuit: Civil Rights Act pro­tects gays

Supreme Court likely to de­cide

The Washington Times Daily - - FRONT PAGE - BY BRAD­FORD RICHARD­SON

A fed­eral ap­peals court ruled the Civil Rights Act of 1964 also pro­tects gay, les­bian and bi­sex­ual em­ploy­ees from dis­crim­i­na­tion in the work­place, a de­ci­sion that car­ries huge im­pli­ca­tions in the on­go­ing de­bate over gay rights.

The full 7th U.S. Cir­cuit Court of Ap­peals voted 8 to 3 in fa­vor of plain­tiff Kim­berly Hively, an ad­junct pro­fes­sor who claims she was de­nied full-time po­si­tions at Ivy Tech Com­mu­nity Col­lege of In­di­ana for be­ing a les­bian.

Writ­ing for the ma­jor­ity, Chief Judge Diane Wood said the statute’s pro­hi­bi­tion on “sex” dis­crim­i­na­tion also ap­plies to sex­ual ori­en­ta­tion.

“For many years, the courts of ap­peals of this coun­try un­der­stood the pro­hi­bi­tion against sex dis­crim­i­na­tion to ex­clude dis­crim­i­na­tion on the ba­sis of a per­son’s sex­ual ori­en­ta­tion,” Chief Judge Wood wrote. “The Supreme Court, how­ever, has never spo­ken to that ques­tion. In this case, we have been asked to take a fresh look at our po­si­tion in light of de­vel­op­ments at the Supreme Court ex­tend­ing over two decades. We have done so, and we

con­clude today that dis­crim­i­na­tion on the ba­sis of sex­ual ori­en­ta­tion is a form of sex dis­crim­i­na­tion.”

In Tues­day’s de­ci­sion, the full panel for the 7th Cir­cuit threw out an ear­lier rul­ing by its own three-judge panel, which in July up­held a district court rul­ing say­ing the law does not ap­ply to sex­ual ori­en­ta­tion.

Writ­ing for the dis­sent against the full panel Tues­day, Judge Diane S. Sykes chided the ma­jor­ity’s “cir­cum­ven­tion of the leg­isla­tive process by which the peo­ple gov­ern them­selves.”

“The Con­sti­tu­tion as­signs the power to make and amend statu­tory law to the elected rep­re­sen­ta­tives of the peo­ple,” Judge Sykes wrote. “How­ever wel­come today’s de­ci­sion might be as a pol­icy mat­ter, it comes at a great cost to rep­re­sen­ta­tive self-gov­ern­ment.”

John East­man, found­ing di­rec­tor of the Clare­mont In­sti­tute’s Cen­ter for Con­sti­tu­tional Ju­rispru­dence, called the de­ci­sion “such ut­ter non­sense.”

“Folks have been try­ing to amend the ’64 Civil Rights Act for decades to add sex­ual ori­en­ta­tion, and those ef­forts have not suc­ceeded be­cause peo­ple rec­og­nize that there is a dif­fer­ence be­tween con­duct­based sta­tus and sta­tus,” Mr. East­man said. “For the judges to sim­ply re­write this statute is well be­yond the role of the ju­di­ciary.”

Ti­tle VII of the Civil Rights Act makes it un­law­ful for em­ploy­ers to dis­crim­i­nate on the ba­sis of “race, color, re­li­gion, sex, or na­tional ori­gin.” It con­tains an ex­emp­tion for re­li­gious em­ploy­ers.

The de­ci­sion does not take up the ques­tion of whether the law also pro­hibits dis­crim­i­na­tion in the work­place on the ba­sis of gen­der iden­tity and such re­lated mat­ters as which bath­rooms trans­gen­der in­di­vid­u­als may use.

But it was cheered by lib­er­als, in and out of the courts, as a po­ten­tial land­mark nev­er­the­less.

House Mi­nor­ity Leader Nancy Pelosi, Cal­i­for­nia Demo­crat, said “the 7th Cir­cuit de­ci­sion is a re­sound­ing vic­tory for LGBT Amer­i­cans and the right of ev­ery per­son to dig­nity and op­por­tu­nity in the work­place.”

Ms. Hively, the woman who brought the case, agreed.

“I have been say­ing all this time that what hap­pened to me wasn’t right and was il­le­gal. Now I will have my day in court, thanks to this de­ci­sion,” Ms. Hively said in a state­ment. “No one should be fired for be­ing les­bian, gay, or trans­gen­der like hap­pened to me.”

Tues­day’s de­ci­sion comes less than two years af­ter the Supreme Court cre­ated a con­sti­tu­tional right to same-sex mar­riage.

Rachel B. Tiven, CEO of Lambda Le­gal, which rep­re­sents Ms. Hively, im­plic­itly com­pared the two de­ci­sions by say­ing “love won again today.”

“Kim Hively loved her job teach­ing math at Ivy Tech Com­mu­nity Col­lege, but she was fired be­cause she is a les­bian,” Ms. Tiven said in a state­ment. “Today the Sev­enth Cir­cuit said clearly: that’s wrong. Our move­ment is about love and pride.”

Mr. East­man said the rul­ing is an­other sign that judges in­creas­ingly do not think they are bound by what the law says and see it as sim­ply a tool to achieve their own ends.

“The first im­pli­ca­tion is we no longer live with judges who think they’re bound by the law,” he said. “Why all those ef­forts for decades in Congress to change the law if it al­ready meant what those ef­forts were seek­ing to amend it to?”

Ron­ald D. Ro­tunda, pro­fes­sor of ju­rispru­dence at Chapman Univer­sity School of Law, said the 7th Cir­cuit rul­ing will be taken up by the Supreme Court some­time next year be­cause it con­flicts with the in­ter­pre­ta­tion of the Civil Rights Act reached by other cir­cuit courts.

He de­clined to pre­dict how the high­est court will rule, but noted that the Supreme Court has been re­luc­tant to give lower courts the au­thor­ity to in­ter­pret nondis­crim­i­na­tion statutes to “in­clude cat­e­gories that the leg­is­la­ture has not seen fit to in­clude.”

“Sex­ual ori­en­ta­tion is not on this list of for­bid­den cat­e­gories of em­ploy­ment dis­crim­i­na­tion,” Mr. Ro­tunda said in an email. “Congress (or a state leg­is­la­ture) may de­cide to add that cat­e­gory along with oth­ers (e.g. vet­eran’s sta­tus, gen­der iden­ti­fi­ca­tion, etc.), but the leg­is­la­ture has not done that yet.”

Daniel Gold­berg, le­gal di­rec­tor for the pro­gres­sive Al­liance for Jus­tice, said the rul­ing is a “land­mark de­ci­sion” and agreed that the con­flict with the 11th Cir­cuit means it’s likely to end up at the Supreme Court.

“In the 21st cen­tury, it’s of course not only rep­re­hen­si­ble, but il­le­gal to dis­crim­i­nate on the ba­sis of sex­ual ori­en­ta­tion,” said Mr. Gold­berg.

He said the case shows the stakes in fill­ing the ninth Supreme Court seat, and do­ing so with some­one who shares pro­gres­sive groups’ val­ues.

“It also demon­strates how crit­i­cal lower court judges are here. Eight judges were in the ma­jor­ity, three were in the dis­sent — in­clud­ing Judge Sykes, who was on Don­ald Trump’s short list,” Mr. Gold­berg said, ref­er­enc­ing the list of roughly 20 judges the Fed­er­al­ist So­ci­ety drafted for Pres­i­dent Trump dur­ing his cam­paign.

Mr. East­man pre­dicted that even Supreme Court jus­tices who sup­port gay rights will be hard-pressed to up­hold the 7th Cir­cuit’s de­ci­sion.

“Even Jus­tice Kennedy — there’s a dif­fer­ence be­tween Jus­tice Kennedy’s con­sti­tu­tional ju­rispru­dence and statu­tory ju­rispru­dence, and the statute here could not be more clear,” Mr. East­man said. “It talks about sex dis­crim­i­na­tion, not sex­ual ori­en­ta­tion dis­crim­i­na­tion. And with decades of ef­forts to amend it to add a new cat­e­gory hav­ing not suc­ceeded, the courts just don’t uni­lat­er­ally get to re­write the law.” ●

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