A Judicial Battle Royal At The Seventh Circuit -- And Judge Posner's Favorite Gays Of All Time
SCOTUS shortlisters and other luminaries of the federal judiciary duke it out in a landmark case.
Judge Richard Posner (Photo by Chensiyuan via Wikimedia Commons.)
Yesterday the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, ruled that sexual-orientation discrimination in employment violates Title VII of the Civil Rights Act of 1964. This is “a historic nationwide first,” as noted by Chris Geidner of Buzzfeed. And now that the federal appellate courts are divided on the question, eventual Supreme Court review of this issue is likely, according to Joshua Matz of Take Care.
We noted news of the ruling in Hively v. Ivy Tech Community College in Morning Docket, and additional coverage can be found via How Appealing (here and here). But now let’s delve into some of the interesting and fun aspects of the opinions.
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(This is, by the way, not the first time we’ve discussed Hively in these pages. Back in December I covered the colorful oral arguments in this case, which featured a rather odd discussion of lesbianism. I also predicted that plaintiff Kimberly Hively would prevail before the Seventh Circuit, a prediction that has now come to pass.[1])
Let’s start with the starpower. The court voted 8-3, and four judges wrote opinions. The majority opinion came from Chief Judge Diane Wood — a leading light of the legal left, who was interviewed by President Obama for the Supreme Court seat that ultimately went to Elena Kagan. The dissent was penned by Judge Diane Sykes — a top conservative judge, and a finalist for the SCOTUS nod that Judge Neil Gorsuch got. Judge Richard Posner, an intellectual giant of the judiciary, wrote a concurrence, and so did the highly regarded Judge Joel Flaum (still an active judge, even though he’ll turn 81 this year).
Now let’s turn to the substance of the opinions. They’re all smart, thoughtful, well written, and persuasive — and they all demonstrate distinctive approaches to statutory interpretation:
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Chief Judge Wood’s opinion — an “elegant” opinion, as even Judge Sykes acknowledges in dissent — embodies purposivism. Unlike some purposivists, she’s not a fan of legislative history (pp. 7-8). But she is concerned with the evil that the statute was enacted to remedy (p. 10), broadly construed, and notes that “the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”
Judge Wood’s core contention (p. 11):
Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her…. This describes paradigmatic sex discrimination.
She supports this argument with Supreme Court precedents: Price Waterhouse v. Hopkins, which “held that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination”; Oncale v. Sundowner Offshore Services, which “clarified that it makes no difference if the sex of the harasser is (or is not) the same as the sex of the victim”; Loving v. Virginia, which struck down Virginia’s miscegenation statute and vindicated the associational theory of discrimination; and the line of LGBT rights cases culminating in Obergefell v. Hodges, which recognized that the Constitution protects the right of same-sex couples to marry.
Judge Flaum’s concurrence takes a textualist approach, arguing that “the statute’s text commands” that “discriminating against an employee for being homosexual violates Title VII’s prohibition” against sex discrimination (p. 35). Citing various dictionaries, as one would expect from a good textualist, he writes that “[f]undamental to the definition of homosexuality is the sexual attraction to individuals of the ‘same sex.'” So, in a nutshell:
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Ivy Tech allegedly refused to promote Professor Hively because she was homosexual—or (A) a woman who is (B) sexually attracted to women. Thus, the College allegedly discriminated against Professor Hively, at least in part, because of her sex. I conclude that Title VII, as its text provides, does not allow this.
Judge Posner’s concurrence is pure Posnerian pragmatism. See generally Reflections on Judging (affiliate link). This tweet from Mike Sacks concisely captures Posner’s perspective:
Some court commentators have criticized Posner’s controversial conception of the judicial role. See, for example, Josh Blackman’s harsh take (quoting Judge Posner’s final line — “We are taking advantage of what the last half century has taught.” — and turning it around on him: “What Judge Posner is taking advantage of is life tenure.”). But such criticism is nothing new to Judge Posner.
Competing with these lines for the most fun part of Judge Posner’s opinion is what I’d describe as a list of his Favorite Gays of All Time (p. 31):
We now understand that homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations) are normal in the ways that count, and beyond that have made many outstanding intellectual and cultural contributions to society (think for example of Tchaikovsky, Oscar Wilde, Jane Addams, André Gide, Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Turing, Alec Guinness, Leonard Bernstein, Van Cliburn, and James Baldwin—a very partial list).
A very partial list indeed! Where’s Leonardo da Vinci? Alexander the Great? Elton John? It’s an idiosyncratic collection, to say the least.
UPDATE (4/6/2017, 1:22 p.m.): See this follow-up story, Judge Richard Posner Confesses Error, for an explanation of how Judge Posner came up with his list of great gays.
This brings us to Judge Diane Sykes’s dissent. Writing about the oral arguments back in December, Mark Joseph Stern of Slate suggested that Judge Sykes, with her pro-defendant questions, “seems to be auditioning to fill the Supreme Court vacancy.” The opening paragraphs of her eloquent dissent — a paean to originalism, textualism, and the judiciary’s limited role in a democracy — could be viewed as a continuation of that audition:
That the dissent’s position happens to coincide with Judge Sykes’s Supreme Ambitions (affiliate link) does not diminish its power or persuasiveness. Here’s the heart of her argument:
Title VII does not define discrimination “because of sex.” In common, ordinary usage in 1964—and now, for that matter—the word “sex” means biologically male or female; it does not also refer to sexual orientation. [Citations to various dictionaries.]
To a fluent speaker of the English language—then and now—the ordinary meaning of the word “sex” does not fairly include the concept of “sexual orientation. The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning.
In support of this point, Judge Sykes cites a long list of federal and state statutes that “distinguish between sex discrimination and sexual-orientation discrimination by listing them separately as distinct forms of unlawful discrimination.”
And here’s a practical demonstration of her point of how sexual-orientation discrimination is not, and cannot, be the same as sex discrimination:
If the facts [brought out on remand] show that Ivy Tech hired heterosexuals for the six full-time positions, then the community college may be found liable for discriminating against Hively because of her sex. That will be so even if all six positions were filled by women. Try explaining that to a jury.
Judge Sykes’s opinion will delight her supporters on the right, enhancing her standing as a Supreme Court contender (especially if the next justice to leave the Court is Justice Ruth Bader Ginsburg, putting pressure on President Trump to fill her seat with a woman). But could it also leave Judge Sykes open to criticism from progressives?
Fear not; the savvy and strategic Sykes includes a line that’s tailor-made for the Democrats of the Senate Judiciary Committee (first emphasis added):
If Kimberly Hively was denied a job because of her sexual orientation, she was treated unjustly. But Title VII does not provide a remedy for this kind of discrimination. The argument that it should must be addressed to Congress.
I happen to share some of Judge Sykes’s concerns. As I previously wrote, “Congress could take this whole issue off the plate of courts by simply passing the Employment Non-Discrimination Act (ENDA), which would ban discrimination in hiring and employment on the basis of sexual orientation or gender identity. This method of achieving the (very admirable) goal of prohibiting sexual-orientation discrimination would be preferable to having it done by courts.”
Regardless of where you come out on this case, you should read, or at least skim, the four opinions. They offer the rare opportunity to see four distinguished judicial minds at work, demonstrating four different approaches to statutory interpretation, on an important issue that’s likely to wind up before the Supreme Court. You can access the opinions via How Appealing (where Howard Bashman has mastered the art of linking to Seventh Circuit opinions).
[1] Who will ultimately prevail in this case is unclear. The Seventh Circuit merely ruled that Hively’s claim is legally cognizable — by the way, congrats to Hively’s counsel, Lambda Legal — but we don’t have any facts yet, just allegations. An Ivy Tech official stated that the school does not plan to appeal to the Supreme Court but does intend to “defend the plaintiff’s claims on the merits in the trial court,” to which this case now returns.
Hively v. Ivy Tech Community College [U.S. Court of Appeals for the Seventh Circuit (via How Appealing)]
Federal Appeals Court Issues Historic Ruling In Favor Of Job Protections For Gay Workers [Buzzfeed]
A Landmark Victory for LGBT Rights (And The Path Ahead) [Take Care]
Judge Posner’s “Judicial Interpretive Updating” [Josh Blackman]
Landmark Federal Court Decision Extends Workplace Discrimination Protections to Lesbian and Gay People [Lambda Legal]
Historic Ruling Affirms that Civil Rights Laws Protect Employees from Discrimination Based on Sexual Orientation [Human Rights Campaign]
Earlier: A Federal Judge’s Rather Rude Joke About Lesbians
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
