The best reaction to the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College was revealing.
Holy fucking shit… we won! #Hively
— Omar GP (@omargp) April 4, 2017
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.
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.