WASHINGTON — The beginning of the Supreme Court’s term this week includes momentous oral arguments on Tuesday in two cases that illustrate clashing theories about how statutes should be construed. If properly decided, the cases will nudge Congress to act like a legislative body.

At issue is whether workplace discrimination based on sexual orientation is forbidden by the 1964 Civil Rights Act, which proscribed discrimination because of a person’s “race, color, religion, sex, or national origin.” The question is whether “sex” also proscribes discrimination based on sexual orientation. Tuesday’s arguments will reprise those made in 2017 in another case. Then the U.S. Court of Appeals for the 7th Circuit held, in effect, that Congress can now be said to have proscribed such discrimination without intending to. Dissenting judges rejected this conclusion because it empowers courts to do what Congress clearly did not do but easily could do.

Kimberly Hively, a part-time adjunct professor at an Indiana community college, says she was repeatedly denied a full-time position, and then her part-time contract was not renewed, because she is a lesbian. The 7th Circuit majority said the question is “what it means to discriminate on the basis of sex” — are “actions taken on the basis of sexual orientation” a “subset of actions taken on the basis of sex”?

Citing “the broader context of the statute,” the majority acknowledged but disregarded the fact that Congress has “frequently” considered adding, but has declined to add, “sexual orientation” to the act. The majority professed to have “no idea what inference to draw from congressional inaction.” Besides, “The goalposts have been moving over the years, as the Supreme Court has shed more light on” the phrase “sex discrimination.” So, the majority said, Congress in 1964 “may not have realized or understood the full scope of the words it chose.” Discrimination based on sexual orientation necessarily involves “taking the victim’s biological sex ... into account.” Hence “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

“Times have changed,” said a judge concurring with the majority opinion. He continues: “[T]he meaning of the statute has changed and the word ‘sex’ in it now connotes both gender and sexual orientation.” The concurring judge said that “it is well-nigh certain” that homosexuality “did not figure in the minds of the legislators” in 1964. Then “homosexuality was almost invisible.” Since then, however, “nothing has changed more” than attitudes toward sex, which now “has a broader meaning than the genitalia you’re born with.” Therefore — non sequitur alert — the “passage of time and concomitant change in attitudes ... can justify a fresh interpretation” of the statute that is “ripe for reinterpretation.”

Ripeness means, for the concurring judge, “taking advantage of what the last half century has taught” in order to correct “statutory obsolescence” and “to avoid placing the entire burden of updating old statutes on the legislative branch.” When and where, one wonders, were courts authorized to share the “burden” of legislating?

“Our role,” said the minority, “is to give effect to the enacted text, interpreting the statutory language as a reasonable person would have understood it at the time of enactment. ... We lack the discretion to ascribe to [the act] a meaning it did not bear at its inception.” The majority has engaged in “judicial statutory updating” that “cannot be reconciled with the constitutional design,” which requires bicameralism (both houses of Congress to enact or amend a law) and presentment (of laws and amendments to the president).

The minority said that “sexual orientation” is not the same forbidden category of employment discrimination as sex is. This is an interpretation that “has been stable for many decades.” As proof that the terms “sex” and “sexual orientation” are not used interchangeably, the minority cited the Violence Against Women Act, which forbids discrimination on the basis of both “sex” and “sexual orientation,” and the Hate Crimes Act, which imposes heightened punishment for harms inflicted because of both “gender” or “sexual orientation.”

The minority acknowledged, and clearly welcomed, the “striking cultural change” since 1964. It could have said 2004, when electorates in 11 states voted on referendums to amend their constitutions to define marriage as exclusively heterosexual. All 11 measures passed, all by double-digit margins. Just 15 years later, that controversy has cooled.

The 7th Circuit’s minority said that if Hively was denied a job because of her sexual orientation, she was treated unjustly, but not illegally under the 1964 Civil Rights Act. It is depressing but clear that the Supreme Court needs to remind Congress — and the 7th Circuit — that “statutory updating” is Congress’ job.

(17) comments

timothygaydos

I am sure the Supreme Court will rule that any discrimination is not allowed... and when they look at each of these cases they will find that there are other reasons why these folks were dismissed from their jobs and it had nothing to do with their gender or sexual orientation... we see it all the time especially within the government employees where their performance is lacking and they are being dismissed and they claimed discrimination to avoid being fired. Employers will need to be more thorough at documenting their paperwork for terminations...

shiftless88

The owner of the funeral home (one of the cases heard today) explicitly said it was because of the change in gender identity that led to the firing. But nice try at the straw man.

des21

Of course, if you rule by Executive Order and SCOTUS decisions, the content of those Orders and decisions are going to change with the occupant of the White House and the composition of the SCOTUS. That's obvious right? Obama's EO's were fine and dandy to many but Trump's are just outrageous to commentators here. The Warren Court's activism was great but the Robert's Court going back to a more conservative reading of the law is outrageous? Come now, we're more mature than that right. I'd rather is abortion, gay marriage, sexual orientation being protected (or not) and illegal immigration being ruled by law rather than by judicial fiat but, what worked for one side of the political spectrum can certainly be utilized to reverse it by the other right? Of course that's right logically. Solution? Do away with the court? Pack it? Term limits? I have a feeling these people took their ball and went home when things didn't go their way as children.

shiftless88

I cannot understand how our entire system of government, which is meant to prevent the tyranny of the majority, can countenance discrimination as part of its law. Honestly, the Civil Rights Act should not have been necessary.

FCPS-Principal

No gender neutral law outlawing discrimination based on sex can possibly not outlaw discrimination based on sexual orientation, since one drives the other. The conservatives however care not for facts and will have no problem allowing homosexuals to become second-class citizens by inventing some rationale under the stupid 'original intent' doctrine, which they invoke when it suits them. We saw that in the Colorado baker ruling.

shiftless88

Do you want to live in a country where it is legal to be fired because of your sexual orientation? I do not. Because your sex is inherently tied up with your sexual orientation it seems straightforward that discrimination should be illegal.

FCPS-Principal

Not to conservatives. They thrive on finding ways to discriminate.

MD1756

Discrimination of all sorts should be illegal. Nor do I want the government at any level or businesses to be allowed to discriminate based on whether or not one has children, but that's an issue they'll never take up. Those of us with no children are made to pay more in income taxes than those who chose to have children and who require more public services. Businesses also are allowed to discriminate by offering specials to some people but not others. All of that should be done away with. Treat all as equal under the law.

shiftless88

Technically one cannot discriminate because of whether you are married or have children, but in reality there are accommodations made for those with kids and expectations of those who do not.

MD1756

That appplies only to employment otherwise it is legal to discriminate for a number of issues/factors. If it applied more broadly, then why do the federal, state and local governments that collect income taxes allow more deductions for those who have children effectively taxing thoise who have no children more? Why are businesses allowed to give one category of people a discount while charging others a higher price (i.e., ladies night, military discounts, student discounts, senior discounts, etc.)?

DickD

Why should we be concerned about the sexual orientation of others. This is a religious problem, not a work place problem.

secpol1970

Not when its forced on you at work.

That guy

Are you suggesting people force their sexual preferences on others at work? Does your coworker just stop by your office on a daily basis to remind you that they're gay? Does your boss constantly tell you that they love their straight-as-an-arrow heterosexual spouse? In what way is someone else's sexual orientation being forced on you at work?

FCPS-Principal

We fully expect religionists to discriminate. But the case involves employers, not churches, and laws against sex discrimination.

des21

That's fine. Don't make it the basis of being a protected class member then.

jsklinelga

" that the Supreme Court needs to remind Congress — and the 7th Circuit — that “statutory updating” is Congress’ job." This is the absolute true underlying cause of what is dividing America. Since the 1960;s the Federal Courts have increasingly assumed the role of law makers, quite often in disregard for the laws of the States and the will of the general public. This completely undermines the basic foundation of our country: A government of the people and by the people. Not a government led by the dictates of a small, appointed, ivy league, elitist, pseudo-aristocracy.

DickD

And how does all of that gibberish relate to sexual orientation, Jim

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