Seventh Circuit’s Hively Splits The Circuits (Update)

The best reaction to the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College was revealing.

For all the cries about how the law already established that gender identity was included within the ambit of sex discrimination under Titles VII and IX, the hard fact was that no court has ever held it. This couldn’t have been made more clear than by the reaction to the Hively decision which held, for the first time ever, that sex discrimination included sexual orientation.

For the uninitiated, it means that discrimination against a person for being gay is sex discrimination, prohibited by the Civil Rights Act of 1964. It’s a fairly big step uphill from gender identity discrimination. and until now, no circuit court in the nation had reached such a holding. Now it has.

The vote was 8-3. The opinion in Hively v. Ivy Tech Community College, by Judge Diane Wood, reasoned that sexual orientation discrimination is essentially indistinguishable from sex discrimination because the former relies on stereotyped concepts about how men and women should behave sexually and about with whom they should associate in their intimate lives.

Notably, the Second Circuit mere days ago held otherwise. There is now a circuit split, and so the issue could go to the Supreme Court for decision.

While advocates cheer the decision for obvious reasons, and make the justifiable claim that there is no policy justification to deprive anyone of the protection of law based upon sexual orientation,* the issue arises from the fact that the 88th Congress that enacted Title VII used language that was clear and certain at the time, and had nothing to do with what was then called sexual preference. That social norms have since shifted is great, but that raises the question of whether changing norms change the words of a statute.

Enter Judge Richard Posner, whose concurring opinion answers the question.

Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted. But I need to emphasize that this third form of interpretation—call it judicial interpretive updating—presupposes a lengthy interval between enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.

As Josh Blackman characterizes it, this is remarkably honest and arrogant. Judge Posner openly, hell expressly, admits that the court is creating a heretofore non-existent doctrine, “judicial interpretive updating,” to rewrite a law because a “lengthy interval” has passed and the judges have decided that the law no longer reflects what they feel it should.

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.

Indeed, when Posner candidly writes that “this is something courts do fairly frequently,” he reveals the dirty little secret of the law, of judicial interpretation, that courts may engage in all manner of gymnastics to conceal what they’re doing behind sophistry and pedantry, Even Wild Bill Douglas felt compelled to rationalize it under the “emanations and penumbras” language of Griswold v. Connecticut. It’s not new that courts write their own laws, but that Posner openly and quite frankly concedes that’s what they’re doing here.

While many will applaud the outcome, and others will shrug it off as a good policy decision and harmless to the nature of Title VII’s reach, the problem with “judicial interpretative updating” is fairly obvious. Just as the refusal to be “obedient servants” works to achieve a result that many desire here, it can be used to work a result that many find repugnant elsewhere. And since this means laws will be rewritten by unelected judges with life tenure, you don’t have to like what they do. They don’t need your approval.

Despite the widespread claims that this was always the case, that this was already the law, it wasn’t. Not even a little bit, as reflected in the shock at the outcome. Knowledgeable gay advocates knew it, and when they promoted the false claim to the contrary, their hope was to persuade enough people to believe the lie that it would be “normalized,” viewed as the way things already were so that we would come to accept it as reality.

Now they actually have a circuit decision that says what they’ve been lying about all along. And the court just made it up because they decided it should be the law, even though it wasn’t.

The outcome as to Title VII is what the law should be, as it’s true that social norms have evolved. How this shift has been achieved, however, is the problem. Separation of powers in our tripartite government would require that it be a decision made by Congress.

Instead, a law has been amended by a court. No matter how good an amendment, how much we agree with the amendment, how dysfunctional Congress has become such that we seek change we desire from whomever is willing to give it to us, this is not the way law should work under our Constitution.

Update: Apparently, Judge Posner’s new interpretative doctrine wasn’t exactly a surprise, as Josh Blackman notes.

During the AALS annual meeting in January, Judge Posner discussed at some length Hively v. Ivy Tech Community College. This case, which was then pending before the en banc Seventh Circuit….

Way sub judice, bro. It gets worse.

*Sexual orientation, as opposed to gender identity claims that would involve affirmative remedies that trade-off the rights of others, need not involve any expectation of special accommodation. It’s nobody’s business whom someone else chooses to love or what they do in their bedroom.

30 comments on “Seventh Circuit’s Hively Splits The Circuits (Update)

  1. Fyodor

    In my own field of law, there has been at least one case (subsequently overruled) where Posner just kind of blew off the existing statutes and case law and imposed his own view of how things should work. I like a lot of his scholarship but it’s pretty hard to defend a lot of his work as a judge at this point.

    1. SHG Post author

      Seriously? That is so cool. I probably should have just made this an open thread, “Crazy Posner Decisions,” so everybody could comment on the most awful Posner decision in their field of law. That would such fun.

      1. Brian

        For IP/trade secret law, US v. Hanjuan Jin was pretty awful. Key paragraph:

        The defendant denies any intention of showing any of the thousands of documents about iDEN that she stole to anyone in China (or elsewhere); they were just study aids. And the judge made no contrary finding. But what she was studying—what she was refreshing her knowledge of—was iDEN. In China she would be a walking repository of knowledge about iDEN that she could communicate to any company or government agency interested in hacking or duplicating iDEN. Could and would, because it would enhance her career prospects; what other motive could she have had for refreshing her knowledge of iDEN? So had she not been stopped from boarding the plane to China, she would have succeeded in conferring an economic benefit on herself and Sun Kaisens, and quite possibly on the Chinese military as well.

        Who cares about proving a key element of a criminal statute? And for all Posner’s purported focus on economic pragmatism, who cares if the reasoning would make every technical employee who changed jobs a criminal? Courts find employee confidentiality agreements unenforceable when applied against inevitable disclosure, but Posner’s OK throwing someone in jail for four years on that basis.

  2. Fyodor

    Sometimes I wonder if you are trying as hard as you could be to retain and cultivate my insightful comments section postings.

    1. SHG Post author

      Your comments are deeply insightful. For example, in this comment, I learned that you don’t use the reply button. How else would I have learned that?

  3. Billy Bob

    Just when you thought it was safe to go back into those textualist/originalist waters,… Judge Posner comes along with his very, extraordinarily original “judicial interpretative updating”. How clever is that? We will not be hearing the end of that one, anytime soon.
    Hey look, if the Congress were not so dysfunctional, it would not be necessary for the courts to engage in these interpretative shenanigans. The system is broken and collapsing around us. So now we’ve got the classical New York-Chicago split. The Supreme Court will hear, and with Gorsuch on the bench, it’s pretty clear where the cudgel will fall. The Second Circuit wins. Chicago loses. We hate it when the Cubs lose.

    Now if only Cuomo would commute some more life sentences, New York might be a great place to live and conduct busyness.

    1. SHG Post author

      Or if only the courts would kick it back to Congress, noting that it’s Congress’ job to update laws to comport with evolving social norms, the people would better understand that their legislators are failing them and litigants wouldn’t substitute lawfare for lawmaking.

      1. Ross

        Wouldn’t that just upset the judges, as their decisions would be “we think plaintiff makes a good argument, but the only solution is to write your Congressman and ask for a change in the law” instead of 50 pages demonstrating their clerks writing ability?

        1. SHG Post author

          Without demonstrable proof of their writing ability, they couldn’t get $250,000 from biglaw the following year.

      2. Keith

        if only the courts would kick it back to Congress, noting that it’s Congress’ job to update laws to comport with evolving social norms, the people would better understand that their legislators are failing them and litigants wouldn’t substitute lawfare for lawmaking


        1. SHG Post author

          Was this necessary because a self-explanatory idea, obvious to most people, eluded you or because you happened to have an example and had to share it or you would burst?

  4. PDB

    I have to think that the plaintiffs in the Second Circuit case are moving for a rehearing en banc in order to get the old case overruled and allow the sexual orientation discrimination is cognizable under Title VII argument to win the day. For the sake of political comity in this country, I hope that the en banc Second Circuit resolves the issue in line with the Seventh Circuit and ends the circuit split. Given how nuts things are already, especially with the Gorsuch nomination, I don’t think this country is ready for another gay rights fight in the Supreme Court.

    1. SHG Post author

      Undermining the integrity of the law is a better answer?

      There is no expedient to which a man will not resort to avoid the real labor of thinking.

      –Sir Joshua Reynolds

      1. Tom C.

        On top of your excellent point, rehearing en banc by the 2nd Circuit would not resolve the circuit split because the rest of the circuits have also held that Title VII does not extend to discrimination based on sexual orientation.

  5. Dave

    There can be issues with using “original interpretation” instead of just going with what the text says.

    [Ed. Note: Middle thousand words deleted and return to inventory.]

    And yes, all the questions are rhetorical. And I apologize in advance for spewing my thought processes all over your pristine comment section. But since I have spent the week cleaning out and organizing my kitchen, my karma is balanced.

    1. SHG Post author

      What part of this post struck you as debate between textualism and originalism? Never mind. Glad to hear your kitchen is organized. Hope that cats are pleased.

      1. Dave

        Your post does strongly imply if you don’t go originalist, the sky is falling because that is amending a statute by judicial fiat, as opposed to just reading what it says in English and not giving a fuck what the writers were thinking.

        But it made me feel better to get that crap out of my head, the same way it felt good to throw away two-year expired frozen vegetables that no one in my house would have eaten the day they were bought.

        And no pets. Pets are a pain in the ass. Kids are enough. And they move out eventually.

    2. Billy Bob

      We were wondering what you were doing in between trips to the control room? By the way, how’s the new fridge? You have to keep it clean; otherwise, things start to grow in there.

        1. Dave

          My favorite part is where Hal tells Dave he should sit down and take a “stress pill” and they can talk it out.

  6. Keith

    Look, it was passed in 1964 and we need to keep up with inflation. This just makes sense and if Congress won’t do what the Judges think is their job, then damn it they have to step up and be the Congress. After all, somebody MUST do something and they are certainly some somebody.

    Personally, I think we should get ahead of the curve.

    The 26th Amendment was passed in 1971, so we only have a few years to figure out the voting age, priced for inflation. I’m guessing 17 is a good number, but I wonder what Posner would think.

  7. Pingback: Lawsplainer: How The Seventh Circuit Decided That Sexual Orientation Discrimination Violates Federal Law | Popehat

  8. Noxx

    Posner’s arrogance here seems so benign, as we all generally agree people should be left the hell alone regarding their sexual identities and preferences. Yet this sort of casual “C’mon we all know better” attitude also leads to horrible decisions like Koramatsu, “Yeah we read the law, but we don’t feel like it really applies to (insert enemy alien flavor of the decade)”. Dangerous shit, taking ones own power so lightly.


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