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Seventh Circuit Rules Discrimination Based On Sexual Orientation Barred By 1964 Law

Gavel And Scales Of Justice

In what appears to be the first ruling of its kind, the Seventh Circuit Court of Appeals has ruled that discrimination based on sexual orientation is banned under the Civil Rights Act of 1964:

In a significant victory for gay rights, a federal appeals court in Chicago ruled Tuesday that the 1964 Civil Rights Act protects gay workers from job discrimination, expanding workplace protections in the landmark law to include sexual orientation.

The decision by the United States Court of Appeals for the Seventh Circuit, the highest federal court yet to grant such employment protections, raises the chances that the politically charged issue may ultimately be resolved by the Supreme Court. While an appeal is not expected in this case, another appellate court, in Georgia, last month reached the opposite conclusion, saying that the law does not prohibit discrimination at work for gay employees.

The ruling on Tuesday comes as gay rights advocates have voiced concern about the potential rollback of protections under President Trump. While the Supreme Court legalized same-sex marriage, many other legal protections, including in employment and housing, have not been extended at all levels to gay people.

The White House considered and then scuttled a plan to overturn Obama-era protections for lesbian, gay, bisexual and transgender people. But the Trump administration also rescinded protections for transgender students that had allowed them to use bathrooms corresponding with their gender identity.

In the decision on Tuesday, the judges ruled by an 8-to-3 vote that the civil rights law, which already prohibits discrimination on a variety of factors, also includes protections based on sexual orientation. They concluded that such discrimination was no different from a form of sex discrimination, which the law prohibits. Five of the eight judges in the majority were appointed by Republican presidents.

The case stems from a lawsuit by Kimberly Hively, an Indiana teacher who has alleged that she was fired from Ivy Tech Community College because she is a lesbian. She applied to six full-time jobs at the school in South Bend, Ind., that she did not get, and she was let go from her part-time position there in 2014.

The community college denies that she was discriminated against because of her sexual orientation.

“Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction and policing,” the court’s chief judge, Diane P. Wood, wrote in the opinion. “Ivy Tech is disadvantaging her because she is a woman.”

The court did not rule on Ms. Hively’s specific anti-discrimination lawsuit. But the ruling allows for Ms. Hively’s employment case to proceed. A lower court had dismissed her case, ruling that the Civil Rights Act did not include sexual orientation protections.

Ms. Hively, who represented herself in the lower court because she said no lawyer thought she would win, said late on Tuesday that she was still processing the significance of the ruling.

“I wasn’t doing it just for me, but for anyone who was going to be bullied in a job for who they decided to love,” she said in an interview.

Greg Nevins, the employment fairness program director for Lambda Legal, which represented Ms. Hively, called the ruling a “tremendous victory.” He said the Seventh Circuit’s approach to the Civil Rights Act was a momentous shift from past cases.

“The problem with the old decisions was a focus on the words that were not in the statute — ‘We don’t see sexual orientation in the statute, so you lose’ — instead of what is in it: sex discrimination,” Mr. Nevins said in an interview.

An official at Ivy Tech said on Tuesday night that it “respects and appreciates” the ruling and does not plan to appeal it to the Supreme Court. “The college denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court,” said the official, Jeff Fanter, the senior vice president for communication and marketing at Ivy Tech.

Lawyers with the firm Barnes & Thornburg, which is representing Ivy Tech, did not immediately return phone calls or respond to emails.

Previous Circut Courts who have dealt with this issue have ruled against employees seeking to apply the Civil Rights Act to discrimination claims based on sexual orientation. The 11th Circuit, for example, recently ruled against an employee at a hospital in Georgia who claimed that she was fired from her job because she is a lesbian. Just last week, a panel of the Second Circuit Court of Appeals rejected a similar claim from an employee at a private business who claimed that they had been fired because of sexual orientation. At the same time, other lower-level Courts have both accepted and rejected the argument that the Civil Rights Act of 1964, which in its relevant portion prohibits discrimination based on sex, applies to discrimination that is based on sexual orientation. At the very least, then, it’s clear that we have a Circuit split on this question, which would ordinarily mean that the Supreme Court would be likely to take up an appeal if one were presented to them. In the Seventh Circuit case, though, that appeal is not going to be forthcoming immediately. As the article quoted above notes, the Defendant in the case has apparently already decided that they would not be immediately appealing the case to the Supreme Court but instead, would return to the District Court and fight the case on the merits for now. This doesn’t preclude the possibility that the nation’s highest court won’t be asked to rule on this particular case in the future, but any such appeal may be years away depending on how long it takes for the matter to get through trial in the District Court and a likely second appeal to the Seventh Circuit regardless of which side wins below. It’s also possible that either the 11th Circuit case or the 2nd Circuit case will soon be before the Justices and that they may decide to take one or both cases up for review. In any case, for the time being the Seventh Circuit’s decision stands, although it only applies inside the Seventh Circuit. How this issue plays across the rest of the Federal Judiciary will be interesting to see.

As things stand, the case for extending the Civil Rights Act of 1964’s bar on discrimination based on sex to sexual orientation strikes me as a fairly tenuous legal argument at best. It’s clear from the legislative history of the law that the provisions regarding barring discrimination based on “sex” were meant to cover situations where a person was hired, fired, or treated unfairly by an employee based on their gender, not on the question of whether they were attracted to members of the opposite sex or people of the same sex. For better or worse, at the time the law was drafted this was simply not an issue and it’s difficult to imagine that the people who voted in favor of the law intended that the law they were passing should be interpreted to apply to those situations. This has most certainly been recognized at the state level, where many states have expanded their civil rights protections to apply to gays and lesbians through legislation. Additionally, the Employment Non-Discrimination Act, which would essentially do what the Seventh Circuit is purporting to do in this decision, has been pending before Congress in one form or another for several years now. Rather than relying upon Courts to deliver what is essentially a very creative interpretation of a fifty-three-year-old law, it strikes me that it would be more appropriate to leave this matter to the legislature, where it belongs. Yes, it’s more difficult to accomplish, but that’s beside the point. It isn’t the job of Judges to read things into statutes that clearly aren’t there, and in this case it seems clear to me that there is no bar against discrimination based on sexual orientation in the Civil Rights Act of 1964, that it was never the intention of the drafters that the law cover such situations, and that the law should not be interpreted so overly broadly so as to create liability under the law that clearly doesn’t exist based on a fair reading of the words on the paper.

None of this is to suggest that discrimination based on sexual orientation isn’t wrong on some moral level, of course. Ideally,  any discrimination based on anything other than one’s fitness for a particular job and job performance is unfair on some level. However, that is a different thing from the question of whether a law that was intended to bar one thing should be interpreted to bar something else. That’s not how the law works, and that’s not how Judges should be doing their jobs.

Anyway, here’s the opinion:

Hively v, Ivy Tech Community College by Doug Mataconis on Scribd

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Hal_10000 says:

    Yeaaah, I’m going to have to reluctantly agree that the legal argument here is a bit thin. While I think anti-discrimination law should cover orientation, it’s not clear that the 1964 law does (although there seems to be a lot of interesting debate on that topic). I think it would be better overall if Congress ….

    ….

    … oh, yeah. Dammit.

    We’ll see what happens if and when SCOTUS picks this up.

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  2. MBunge says:

    I’m not much of a fan of originalism but it’s not the job of federal judges to let Congress off the hook on issues like this.

    Mike

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  3. Hal_10000 says:

    Aside: interesting note from Ken White:

    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.

    My kids’ generation will never understand what the fuss about gays was all about.

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  4. DrDaveT says:

    It’s clear from the legislative history of the law that the provisions regarding barring discrimination based on “sex” were meant to cover situations where a person was hired, fired, or treated unfairly by an employee based on their gender,

    This is perhaps the crux. Doug, I don’t know whether you were deliberately contrasting ‘sex’ (the biological trait) and ‘gender’ (the cultural trait), but that’s where the action is in these decisions.

    In 1964, US law did not recognize a difference between sex (what kinds of chromosomes you have) and gender (a set of sex-linked expectations about social role). The default assumption was that there are men (XY) who are male, women (XX) who are female, defectives (XXY or other intersex conditions), and perverts. Discrimination law was phrased in terms of sex, though as Doug notes it was really aimed at gender. (For example, if you discriminated against a female impersonator without knowing she was a man, it would not be a valid defense to argue that it wasn’t discrimination because she was actually a man.)

    So, now we (collectively) know better, though there are organized pockets of denial. It is an interesting point of law whether the original intent to avoid gender discrimination should be interpreted to apply using our new and more nuanced understanding of gender, or whether the overturning of that past world view requires new legislation to correctly deal with the implications of the new world view for questions of equity.

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  5. @DrDaveT:

    Your point would be relevant, perhaps, if the Plaintiff in the Seventh Circuit case were arguing that she was discriminated against based on gender identity. She isn’t. She’s arguing that she was discriminated against because she’s gay.

    The only relevant question is whether existing law at the Federal level makes that illegal, and I find the argument that the Court adopted to be unpersuasive on that point. Expanding the law like this is the job of the legislature, not the job of Judges.

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  6. Gustopher says:

    @DrDaveT:

    Discrimination law was phrased in terms of sex, though as Doug notes it was really aimed at gender. (For example, if you discriminated against a female impersonator without knowing she was a man, it would not be a valid defense to argue that it wasn’t discrimination because she was actually a man.)

    I really don’t think it was aimed at gender — just the simple biological sex of XX vs. XY (with no thought given to the edge cases). There was no fondness for cross dressers then (which is where the understanding of transsexuals ended at the time).

    I think it’s reasonable to read the constitution in expansive terms — it was written in broad, sweeping, aspirational language that we didn’t live up to at the time, and that we still don’t live up to. It’s an amazingly short document for what it says. I think the founding fathers meant for it to be interpreted broadly.

    I don’t think it’s reasonable to read most laws in the same way. They are generally written in precise language, and go on forever, carefully enumerating who they affect and who they don’t.

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  7. James Pearce says:

    @Doug Mataconis:

    Expanding the law like this is the job of the legislature, not the job of Judges.

    Is it really an “expansion” of the law or are they interpreting the law as written (although not necessarily as intended)?

    I’d argue for the latter and cite this from the ruling: “We conclude that discrimination on the basis of sexual orientation is a form of sex discrimination.”

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  8. grumpy realist says:

    I’m also in the I-dont-think-this-is-part-of-the-amendment but I can see how activist jurists could be frustrated enough to try to read it in there.

    (There’s not a few SCOTUS decisions where the “conservatives” take a narrow opinion, not so much because they believe that’s the way the situation should fall, but because they’re trying to kick Congress into passing relevant legislation to cover the situation. This is especially true when previous law is getting stretched to cover new technology/situations.)

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  9. HarvardLaw92 says:

    @Doug Mataconis:

    The only relevant question is whether existing law at the Federal level makes that illegal

    I’m not so sure. Had they intended for the concept to be strictly limited to the chromosomal difference between XX and XY / biologically male and biologically female, they would have used the word “gender”. In using “sex”, they left the door open to any and all immutable secondary characteristics which are associated with gender – which I think you’ll agree (or at least have a difficult time attacking) easily encompasses sexual orientation (which is unavoidably entangled with / can’t be separated from) gender.

    If Congress wishes to amend the act to specify just gender – and nothing else associated with it – they have the power to do so at any time. In the interim, we go with the verbiage that exists. I’d think that a textualist would approve of that approach.

    It sounds like you may be engaging in “I don’t think that this statute should protect sexual orientation, so I’m going to interpret the verbiage of the statute to mean what I believe that it should mean”, but at the same time saying that a court shouldn’t have that leeway. What gives?

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  10. Daryl's other brother Darryl says:

    @Hal_10000:

    My kids’ generation will never understand what the fuss about gays was all about.

    With Republicans running all three branches…I think you meant to say;

    “…what the fuss about gays was is all about…”

    No doubt your kids will see a different world…but the bigots haven’t given up yet. Far from it. It was just last week when Trump weakened LGBT workplace protections for Government employees.
    http://www.rollingstone.com/politics/features/trump-quietly-went-after-lgbt-workers-this-week-w474245
    And a month before that he overturned Obama rules re: Transgender bathroom use.
    I’m straight…but nonetheless…as a people we are less free than we were before Jan. 20th.

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  11. SKI says:

    As things stand, the case for extending the Civil Rights Act of 1964’s bar on discrimination based on sex to sexual orientation strikes me as a fairly tenuous legal argument at best.

    Think simpler…

    She was not hired because her preferred partner was female – and issue that wouldn’t have mattered if she was male herself.

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  12. SKI says:

    @SKI:

    Think simpler…

    She was not hired because her preferred partner was female – and issue that wouldn’t have mattered if she was male herself.

    I should further note that this approach is very much in line with existing SCOTUS precedent that found that discrimination for failing to conform to gender expectation is covered by Title VII of the Civil Rights Act of ’64 (Price Waterhouse v. Hopkins)

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  13. Kylopod says:

    @Gustopher:

    I don’t think it’s reasonable to read most laws in the same way. They are generally written in precise language, and go on forever, carefully enumerating who they affect and who they don’t.

    I think this is the key point. If a legislator wanted to amend the CRA to add sexual orientation to the list of protected categories, I’d be all for it. But it seems clear that the law, in its original form. was never intended to be used that way. The Constitution is a living document, but I doubt the drafters of the CRA ever intended that the law would one day apply, without amendment, to categories other than the ones they specifically mentioned: race, religion, and gender.

    I am not usually impressed by process arguments used by conservatives to halt the expansion of civil rights in the US, but in this case I think they have a point. This is liberal judicial activism in its worst sense. I support the outcome, but in this case the means of getting there are questionable at best.

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  14. @HarvardLaw92:

    In using “sex”, they left the door open to any and all immutable secondary characteristics which are associated with gender

    This may be true under a modern understanding of terms like “sex” and “gender,” and even then the jury is still out depending on who you talk to, but it’s not the one that prevailed in 1964, and that seems to me to be the only relevant question. The Plaintiff in this case isn’t alleging she was discriminated against because she is a woman. She is arguing she was discriminated against because she is a lesbian,

    I can agree with the idea that discrimination in either instance is wrong, but that’s not the relevant question and it’s not a question a Judge should be answering in any case. The question is whether the law as written covers sexual orientation and it seems clear to me at least that it doesn’t. That’s why so many jurisdictions have felt it necessary to expand their non-discrimination statutes to cover sexual orientation, and why many in Congress have been trying to pass the Employment Non-Discrimination Act.

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  15. DrDaveT says:

    @Doug Mataconis:

    Your point would be relevant, perhaps, if the Plaintiff in the Seventh Circuit case were arguing that she was discriminated against based on gender identity. She isn’t. She’s arguing that she was discriminated against because she’s gay.

    Are you saying that there is no gender difference between gay and straight women? I would suggest that you are confusing sex and gender — or perhaps trying to impose the 1964 understanding of gender. As HarvardLaw92 notes, sexual orientation/preference is inextricably entwined with gender; I would go further and say that it is a component or aspect of gender. Gender, after all, is a purely social construct. India recognizes three genders in their law; one could also imagine a society with only one gender (“human”).

    Just to be clear: I am not arguing that the court was right to extend the meaning of the 1964 law in this way. I am merely noting that the question of whether they were correct or not hinges on how you interpret ‘gender’.

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  16. @HarvardLaw92:

    It sounds like you may be engaging in “I don’t think that this statute should protect sexual orientation, so I’m going to interpret the verbiage of the statute to mean what I believe that it should mean”, but at the same time saying that a court shouldn’t have that leeway. What gives?

    What gives is that I’m looking at what the statute actually says and proceeding accordingly. The ones who are stretching the language of the statute beyond what it actually says, it seems to me, are those siding with the majority in the Seventh Circuit.

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  17. DA says:

    I think it’s clear that firing someone for sexual orientation is sex discrimination. Say you have a bunch of employees, and say you happen to know that some of those employees are dating women. You fire the female employees who are dating women, and not the men. Firing women for something that you wouldn’t fire men for? Sex discrimination.

    I also agree that it can’t be what the people passing the law intended.

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  18. HarvardLaw92 says:

    @Kylopod:

    but I doubt the drafters of the CRA ever intended that the law would one day apply, without amendment, to categories other than the ones they specifically mentioned: race, religion, and gender.

    Race, color, religion, sex or national origin.

    They didn’t specify “gender”. They specified “sex”. “Gender” is a specific sexual characteristic, one among many in a basket. “Sex” is the whole basket.

    I have my doubts that the framers ever intended for the 1A as written to bar prayer in schools, but here we are anyway (and rightly so). Legislatures write laws; courts interpret them. They’re not boilerplate leases.

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  19. @DrDaveT:

    I’m arguing that gender and sexual orientation are two different things. Trying to conflate the two as being the same is twisting language in a way that is entirely inappropriate for the law, which is supposed to be something that has a clear, easy to understand meaning not something that can be so easily manipulated.

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  20. HarvardLaw92 says:

    @Doug Mataconis:

    What gives is that I’m looking at what the statute actually says and proceeding accordingly

    No, you are changing what the statute actually specifies – “sex” – into another word that you believe expresses what the actual intent should be – “gender”.

    Gender – “the state of being male or female”

    Sex – “the sum of the structural and functional differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences

    If they meant just gender, they should have specified just gender. If they still believe that this is how the statute should be read, then they have the power to change it.

    In the meantime, the definition of the word that they actually used well justifies the interpretation utilized by the court in this case.

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  21. HarvardLaw92 says:

    @Doug Mataconis:

    I’m arguing that gender and sexual orientation are two different things

    and I 100% absolutely agree with you about that.

    The problem – once again – is that “gender” is not the word that they used when the wrote the statute. The word that they actually used means a bit more than just gender. The meaning includes gender, but is not limited to just gender.

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  22. grumpy realist says:

    @DrDaveT: This is why, at the end, a lot of legal catfights do boil down to arguing over semantics.

    Which we’re seeing right now in our legal arguments about “sex” vs. “gender” vs. “transsexuality”.

    The one amusing factor in all of this is watching conservatives going nuts over what they take as Platonic, god-given, immutable ideals and then discovering that well, Mama Nature doesn’t work that way. That the pigeonholes are messy, and so are the categories, and the simple “XX chromosome” == “heterosexual woman” == “human mandated by GAWD to have babies and stay home and take care of them and say “yes sir” to her Lord and Husband” ain’t necessarily so.

    And the more we get into genetic manipulation I suspect the fuzzier the boundaries are going to end up being. What happens, for instance, when we get the technology to totally remake the human body and replace all “XX” chromosomes with “XY” chromosomes (or vice versa)? So that there is, in fact, absolutely no difference, physically, between that person and a person of whatever sex he/she has transitioned into? Would “transsexual” even make sense as a physical category any more?

    One of the reasons why I think science fiction can be one of the best gedankenexperiments out there. Go read Lois McMaster Bujold and her use of introducing uterine replicators into a relatively backwards militaristic culture….

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  23. HarvardLaw92 says:

    @Doug Mataconis:

    The question is whether the law as written covers sexual orientation and it seems clear to me at least that it doesn’t

    The law as written within the confines of the meaning of words as they existed in 1964 doesn’t. Legislatures don’t deliver laws which continue to operate in perpetuity within the social mores of the exact time that they were enacted. Judges interpret statutes within the context of the world in which they are currently applied.

    I think that this may be more a debate about textualism vs. interpretationalism itself, which is the eternal (and unresolvable) question in our profession.

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  24. @HarvardLaw92:

    I understand the meaning of the words in the statute just fine. I simply don’t believe it is appropriate for Judges to be applying that language in a manner in which it was not intended.

    This is a job for Congress, or state legislatures/local governing bodies, not the Courts.

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  25. grumpy realist says:

    Oh, and FYI, Barry Manilow just came out as gay.

    (I can’t figure out whether my reaction is to roll my eyes or mutter “et alors?”)

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  26. HarvardLaw92 says:

    @Doug Mataconis:

    Like I said, textualism vs. interpretationalism. We’ll just have to agree to disagree.

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  27. Kylopod says:

    @HarvardLaw92:

    They didn’t specify “gender”. They specified “sex”. “Gender” is a specific sexual characteristic, one among many in a basket. “Sex” is the whole basket.

    In 1964 people didn’t commonly use “gender” the way they use it today, to mean “the state of being male or female.” That usage existed, but it didn’t become widespread until the 1980s along with other language reforms having to do with identity. (That was the period when terms like “Asian American” and “African American” really started gaining currency, and it was part of the same trend.) In the context of the CRA, “sex” meant pretty much exactly what “gender” does today. The word has other meanings, but not the way it was used in the law.

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  28. HarvardLaw92 says:

    @Kylopod:

    And I’m ok with that, to the extent that I’ll stipulate what they may have intended. I’m just not that concerned with what they may have intended 53 years ago. I’m concerned with what they wrote (unless somebody wants to argue that I won’t find both words in the 1964 dictionary) and how what they wrote comports with the world in which judges today have to interpret and apply it.

    We don’t live in 1964.

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  29. Kylopod says:

    @HarvardLaw92:

    I’m just not that concerned with what they may have intended 53 years ago. I’m concerned with what they wrote

    Those two factors can never be totally separated, because “what they wrote” involves what they communicated. Are you really going to argue that you can just impose modern definitions on a text’s words that have since evolved in meaning?

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  30. HarvardLaw92 says:

    @Kylopod:

    Are you really going to argue that you can just impose modern definitions on a text’s words that have since evolved in meaning?

    Absolutely. Are you going to argue that verbiage of statutes enacted in the 1700s should be read – boilerplate – according to the definitions of said verbiage as it existed in the 1700s? Either the law adapts legal interpretation to the era in which the interpretation is occurring, or we have a great many court rulings we’re going to have to revisit here shortly.

    That having been said, as I noted previously both words existed in 1964. Are you going to argue that they were incapable of picking up a dictionary? That they were incapable of writing with enough precision that the words they selected conveyed the meaning that they intended to convey? Do I need to have an intern head down to the library to ascertain how those words were defined in 1964?

    Like I said, I’m not concerned with what they intended. I’m concerned with what they wrote. We just had a ruling in Maine where a misplaced comma completely changed the legislature’s ostensible statutory intent. Words have meaning.

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  31. teve tory says:

    IANAL but it seems that if the long-dead authors of a legal text didn’t understand the full consequences of the principles they meant to establish, it’s not unreasonable for a court to later reinterpret the law with a more complete understanding.

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  32. SKI says:

    @Kylopod:

    Are you really going to argue that you can just impose modern definitions on a text’s words that have since evolved in meaning?

    Absolutely.
    Do you really think we need to restrict ourselves to only what the Framers would have considered “cruel and unusual” in considering what the 8th A. prohibits?

    This is why I think that most claims of originalism or “intent” are simply a false facade covering up personal biases and policy preferences.

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  33. SKI says:

    And let’s make this a bit more explicit: If Doug : is correct, than Loving is wrong. After all, we didn’t amend the Constitution in ’67 and there is no way anyone can credibly argue that the drafters of the 14th A. in 1866 intended to prohibit anti-miscegenation laws, particularly as SCOTUS unanimously upheld them in 1883 (Pace v. Alabama).

    Either it is ok to recognize that our understanding of reality changes when interpreting plain meaning of language or it isn’t. Doug?

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  34. wr says:

    @MBunge: “I’m not much of a fan of originalism but it’s not the job of federal judges to let Congress off the hook on issues like this.”

    Yes, because the proper role of the judicial branch is to teach little moral lessons to Congress. It’s like Jiminy Cricket, only in black robes.

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  35. wr says:

    @Doug Mataconis: “I’m arguing that gender and sexual orientation are two different things. Trying to conflate the two as being the same is twisting language in a way that is entirely inappropriate for the law, which is supposed to be something that has a clear, easy to understand meaning not something that can be so easily manipulated.”

    One thing that grows clearer and clearer to me is that gender and sexual orientation have much less of a clear, easy to understand meaning than we have chosen to believe in the past. They’re a lot like our concepts of race that way — a couple hundred years ago we had clear, easy to understand meanings of racial identity, and now we realize that they were social constructs and not biological facts.

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  36. panda says:

    @HarvardLaw92:

    They didn’t specify “gender

    But I’m pretty certain that the current usage of the word gender was not in vogue in 1964.

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  37. panda says:

    @HarvardLaw92:

    They didn’t specify “gender

    But I’m pretty certain that the current usage of the word gender was not in vogue in 1964.

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  38. An Interested Party says:

    Contra Doug, here’s a legitimate argument about how the 7th Circuit got it right with this decision…

    Tuesday’s decision is, in short, a thunderbolt. It lays out three cogent reasons why sexual orientation discrimination is always a form of sex discrimination. And it essentially dares other courts, including the Supreme Court, to find flaws in its careful, disciplined analysis. Wood’s majority opinion contributes to a growing (though not yet universal) consensus among federal courts that Title VII obviously protects gay employees—and confirms that this consensus is bipartisan. It will be impossible for other judges to ignore. And with a little luck, it will soon push a majority of the Supreme Court to recognize that anti-gay discrimination is, at root, discrimination “because of sex.”

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  39. HarvardLaw92 says:

    @panda:

    Again, I couldn’t care any less how the meaning may have changed over 53 years. We’re apply the statute here. Now. In the present.

    My point was twofold:

    1) what they may have intended 53 years ago is irrelevant and immaterial with respect to how the statute might be interpreted today, and;

    2) they didn’t even bother trying to be precise with regard to expressing their intent when they wrote it in the first place, so the door has always been open. A court finally walked through it.

    If Congress doesn’t like it, they can amend the statute. Meanwhile, thanks to the 7th Circuit (en banc, no less) it’s illegal to discriminate on this basis in Illinois, Indiana and Wisconsin. Congress would be better off amending if they actually want to put a stop in. Appealing this to SCOTUS as long as Kennedy remains seated (Gorsuch or not) would be a bad idea for opponents.

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  40. DrDaveT says:

    @Kylopod:

    In the context of the CRA, “sex” meant pretty much exactly what “gender” does today.

    See, I disagree. The nuance of our current notion of ‘gender’ was entirely absent in 1964. See my earlier post — there were all kinds of built-in assumptions about how biology determines what we now call ‘gender’ that were simply wrong, and that only people in the grip of a particular religion still believe. When they said ‘sex’, they meant sex-plus-this-basket-of-permitted-gender-roles-that-we-assume-are-natural, plus some other crap.

    But 1964 only has so much clout. As SKI notes, if we really thought that the cultural baggage of the time of the original drafting was inviolable, Loving would not be possible. Yet it is, and not even controversial any more.

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  41. Gustopher says:

    @HarvardLaw92:

    They didn’t specify “gender”. They specified “sex”. “Gender” is a specific sexual characteristic, one among many in a basket. “Sex” is the whole basket.

    I think you have that exactly backwards.

    From Wikipedia’s page on the distinction between sex and gender:

    The distinction between sex and gender differentiates sex (the anatomy of an individual’s reproductive system, and secondary sex characteristics) from gender, which can refer to either social roles based on the sex of the person (gender role) or personal identification of one’s own gender based on an internal awareness (gender identity).

    Are you referencing a different definition, that has a basis in law rather than gender theory and common usage?

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  42. Gustopher says:

    @SKI:

    And let’s make this a bit more explicit: If Doug : is correct, than Loving is wrong. After all, we didn’t amend the Constitution in ’67 and there is no way anyone can credibly argue that the drafters of the 14th A. in 1866 intended to prohibit anti-miscegenation laws, particularly as SCOTUS unanimously upheld them in 1883 (Pace v. Alabama).

    There wasn’t a single drafter, and the entire process was a matter of compromise. Thus you have section 2 about disenfranchisement of males, and sections 1 and 3 discussing persons. There were feminists, Radical Republicans (back when that was a good thing), and all sorts of moderates, quibbling over every word. It was a compromise where everyone thought they had gotten the upper hand.

    So, I am willing to say, that at least some of the drafters did intend to prohibit anti-miscegenation laws, and that if the Supreme Court took a hundred years to get there, that doesn’t mean that the meaning of the Amendment had changed.

    Read this, and then stop and read it again, and try not to attach what you already believe it means:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    It doesn’t mention race, sex, national origin, or sexual orientation, and that’s on purpose. They could have enumerated the protected classes, but they decided to be broad and expansive. It could have read “nor deny to any male, white or negro, within its jurisdiction the equal protection of the laws, except for confirmed bachelors or anyone from Ireland.”

    The drafters meant for it to be interpreted as broadly as social mores would allow.

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  43. Pch101 says:

    Human rights are just that — rights that you have because you are a human. They are not statutes that can be repealed arbitrarily or that can be engineered to deprive certain citizens of their freedoms simply because of some genetic trait or because we have a history of discriminating against them without cause.

    Unless someone can come up with a compelling reason why gays should be denied public accommodations, workplace protections, etc., then I see no reason to presume that those rights are lacking. Rather, the burden should be on those who want to deny those rights to prove that the state has a compelling interest to bar them from having those freedoms.

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  44. HarvardLaw92 says:

    @Gustopher:

    Wikipedia? Seriously? …

    As long as we’re playing, though, from your source:

    Sex is annotated as different from gender in the Oxford English Dictionary, where it says sex “tends now to refer to biological differences”.[16] The World Health Organization (WHO) similarly states that “‘sex’ refers to the biological and physiological characteristics that define men and women” and that “‘male’ and ‘female’ are sex categories”.[17]

    So yea, given that I’m pretty convinced that sexual orientation is an inborn trait, I’ll continue to support my original asserti N

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  45. grumpy realist says:

    @SKI: Well, if we DO interpret the Second Amendment according to the originalist interpretation, we can logically argue that no one should have any firearms later than a flintlock with homemade lead bullets and set off with black powder…..

    ….which I think is a jolly good idea.

    This isn’t a gender question. This is an interpretation question and there are many different schools of thought, even beyond originalism.

    (It’s a bit like patent law, where we’re constantly having to figure out how far a patent stretches to include new technology.)

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  46. Tyrell says:

    @grumpy realist: At some point some of these “identificationing” cases will have to be decided. Recently there have been concerns with athletics. Will a sports organization retain the right to decide participation based on the medical gender of a person or will the courts force them to allow anyone based on what they prefer or identify. And there is the recent case where a judge ruled that a person can legally be no gender ! So one has to wonder what will on down the line: identifying as a non human, an animal, or another person ? And the strange case of the news lady who said she was black but wasn’t.
    Listen to Dr. Al Mohler’s timely thoughts on this ruling: “7th Circuit Drops Bombshell” (The Briefing 4-6-17)
    In the near future the issue of artificial intelligence will be another new area of various legalities that will have to be navigated.

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  47. grumpy realist says:

    And, as could be expected, the usual suspect over at TAC is having a cow.

    (I really wish Rod and his entourage would just….not comment on any issue involving law. Few of them understand it, few of them know how our legal system works, and they persist in blaming it all on The Big Bad Evils Liberals, rather than understand right how we’re having a discussion among different types of statutory interpretation. And the idiot over there who claims that Posner is a liberal? Words fail me.)

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