- The Washington Times - Tuesday, April 4, 2017

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 its decision Tuesday, 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 conduct-based 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 and it’s incredibly powerful to know that the law now protects me and other LGBT workers.”

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. Pride in yourself and your work, and the freedom to love and to be treated equally.”

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.”

Jim Campbell, a senior counsel with the Alliance Defending Freedom agreed that the 7th Circuit ruling “conflicts with the consensus among the circuits on the proper interpretation of the word  ‘sex’ in Title VII.”

He noted that “cases where one circuit steps out of line with the others are prime candidates for Supreme Court review” and predicted that “the justices would likely take a close look at the case and strongly consider granting review.”

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 9th Supreme Court seat, and doing so with someone who shares core constitutional 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.”

Alex Swoyer contributed to this report.

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