Courts

Fast Times At 40 Foley: Second Circuit Drama In Zarda v. Altitude Express

This history-making case generated a slew of interesting, funny, and even snarky opinions.

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The Second Circuit courthouse in downtown Manhattan, at 40 Foley Square.

If you’re a devotee of the federal judiciary, as am I, you love yourself a good en banc. When a court decides to rehear a case with its full membership, all the stars come out to play. Few things thrill me more than watching a dozen or so legal titans take the bench at the same time, black robes billowing out behind them.

It’s a special treat when the Second Circuit goes en banc, since it’s so rare. The highly esteemed, New York-based appeals court is probably the most en-banc-averse circuit in the country (as leading appellate lawyer John Elwood of Vinson & Elkins observed yesterday, in an interesting podcast about United States v. Microsoft).

On Monday, the Second Circuit issued its eagerly awaited opinion in Zarda v. Altitude Express, Inc., which it reheard en banc last September. Overruling its own precedent, the court held, by a vote of 10-3, that discrimination based on sexual orientation violates Title VII’s prohibition of discrimination on the basis of sex.

In this post, I offer color commentary on the eight (8!) different opinions, highlighting the most interesting, fun, juicy, or catty portions of each (just as I did for Hively v. Ivy Tech Community College, when the Seventh Circuit, also sitting en banc, reached the same conclusion as the Zarda court). Although this post will inevitably contain some doctrinal discussion, that’s not my goal here. I did not come here to engage in legal analysis; I came to play.

(If you’re looking for more straightforward, doctrinally grounded discussion, you can find it in many places. See, e.g., this piece by ATL employment law columnist Evan Gibbs and his colleague Rebecca Silk, or Mark Joseph Stern’s story for Slate.)

Like the en banc Seventh Circuit’s decision in Hively, the Second Circuit opinions in Zarda offer a master class in statutory interpretation. And what’s so fun about the class is that the professors aren’t who you might expect. Hard cases make for… strange bedfellows.

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The majority opinion comes, not surprisingly, from Chief Judge (and mega-feeder) Robert Katzmann. A leading authority on statutory interpretation, on which he literally wrote the book (affiliate link), Chief Judge Katzmann is known for offering an alternative to the hard-line textualism advanced by the late Justice Antonin Scalia. But in his Zarda opinion, the Chief is all about that text, ’bout that text: “In deciding whether Title VII prohibits sexual orientation discrimination, we are guided, as always, by the text” (emphasis added).

Chief Judge Katzmann’s opinion advances three major arguments. First, sexual-discrimination constitutes sex discrimination because “sexual orientation is a function of sex.” Firing a man because he’s attracted to men “is a decision motivated, at least in part, by sex,” and the fired male employee wouldn’t have been fired “but for” his sex.

Second, sexual-discrimination constitutes sex discrimination because “sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.” This argument relies upon Price Waterhouse v. Hopkins, in which the Supreme Court held that a female accountant who was discriminated against because she didn’t comport herself in a traditionally feminine way could advance a valid Title VII claim.

Third, sexual-discrimination constitutes sex discrimination under the “associational” theory of discrimination. Such discrimination flows from “an employer’s opposition to association between particular sexes, and thereby discriminates against an employee based on their own sex.” The easiest way to think about this form of discrimination is through the lens of race discrimination and the landmark Supreme Court case of Loving v. Virginia, striking down Virginia’s anti-miscegenation statute. Virginia tried to defend its statute by arguing that it applied equally to black and white citizens, but the Court rejected that argument, holding that discriminating against someone because of his race and the race of someone he associates with constitutes discrimination based on race.

Chief Judge Katzmann’s opinion, while elegant, clear, and powerful, isn’t the most entertaining. Fortunately, he’s playing the “straight man” to the more lively concurrences and dissents.

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First up: Judge Dennis Jacobs, one of the Second Circuit’s leading conservative voices. Interestingly enough, the Republican-appointed jurist sides with Zarda — but not for all the reasons provided in the Chief’s opinion. Judge Jacobs agrees with the associational theory (which Mark Joseph Stern believes to be “the most persuasive theory of the case”), but not with the other theories — which he then proceeds to shoot down. For example, here’s Jacobs’s take on the “sexual orientation as a function of sex” argument:

The opinion of the Court characterizes its definitional analysis as “the most natural reading of Title VII.”  Maj. Op. at 21. Not really.

Burn. But this is his best dig:

A ruling based on Mr. Zarda’s same‐sex relationship resolves this appeal; good craft counsels that we go no further. Much of the rest of the Court’s opinion amounts to woke dicta.

Is this the first time “woke” has been used in this way in the august pages of F.3d? Be still my heart!

The various Zarda opinions total 163 pages. Judge Jose Cabranes, concurring only in the judgment (ouch), needs just one page to resolve this case:

This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of . . . sex.” Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.

That should be the end of the analysis.1

This reminds me a little of Judge Richard Posner’s Hively concurrence, which could be similarly summarized as, “Sigh, why do you have to make everything so complicated?”

Observant readers are surely wondering about that footnote, which reads as follows:

Cf. 1 Callimachus fr. 465, at 353 (Rudolfus Pfeiffer ed., 1949) (3d century B.C.) (μέγα βιβλίον . . . μ[έ]γ[α] κακ[όν]).

It’s Greek to me, which I don’t speak (and Judge Cabranes doesn’t deign to provide a translation). But have no fear, a helpful ATL reader is here:

Judge Cabranes’s footnote in his extremely brief concurring opinion in Zarda is the following citation to an ancient Greek poet named Callimachus: “μέγα βιβλίον, μέγα κακόν,” which translates to “big book, big evil.” He literally dropped a footnote just to tell his colleagues, “y’all write too much.”

He is giving me LIFE right now.

I told you these opinions are fun!

Like Judge Jacobs, Judge Robert Sack concurs with Chief Judge Katzmann’s associational theory of discrimination. But unlike Judge Jacobs, Judge Sack is agnostic rather than negative on the other theories: “My declination to join other parts of the majority opinion does not signal my disagreement with them. Rather, inasmuch as, in my view, this appeal can be decided on the simpler and less fraught theory of associational discrimination, I think it best to stop there without then considering other possible bases for our judgment.” Fair ’nuff, Your Honor.

Judge Raymond Lohier concurs in part — the most textualist part of the Chief’s opinion, and “the remaining parts of the opinion only insofar as they can be said to apply to Zarda’s particular case” (curious) — but does write separately to take on the dissenters. I like this line of his: “Time and time again, the Supreme Court has told us that the cart of legislative history is pulled by the plain text, not the other way around. The text here pulls in one direction, namely, that sex includes sexual orientation.”

This brings us to the dissents. The lead dissent comes from the pen (or keyboard) of another leading light of the Second Circuit, Judge Gerard Lynch. Like Chief Judge Katzmann, Judge Lynch is a Democratic appointee (by President Clinton to the Southern District, and by President Obama to the Second Circuit). But in Zarda, he takes on the role played in the Seventh Circuit by Judge Diane Sykes, arguing that sorry, Title VII doesn’t cover sexual orientation.

Judge Lynch’s dissent, like Chief Judge Katzmann’s majority opinion, is also excellent and persuasive. If I were on the Second Circuit, I don’t know how I’d vote in this case. I lean slightly in favor of the majority view that Title VII does cover sexual-orientation discrimination, but as I wrote when discussing Hively, I’d much rather see this solved by Congress.

As would Judge Lynch, as he states in the opening of his dissent:

Speaking solely as a citizen, I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.

This struck me as a more strongly worded version of this statement by Judge Sykes in Hively: “If Kimberly Hively was denied a job because of her sexual orientation, she was treated unjustly.” But Judge Lynch goes much further, reflecting how he’s quite a bit to Judge Sykes’s left, at least as a citizen.

As a judge, however, Lynch is just as troubled as Sykes by the notion that Title VII covers sexual-orientation discrimination:

I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago — until I actually woke up and realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.

Awww, snap! And there’s more where that came from.

But first, Judge Lynch goes into a long history of Title VII and the Civil Rights Act. The judges in the majority criticize him for relying on the bugaboo of legislative history, but I understand his defense: he’s using the history of the Civil Rights Act not because the subjective intentions of the legislators matter, but because their actions and statements at the time are enlightening on the original public meaning of the language of Title VII. In other words, what did people understand the word “sex” to mean at the time the act was passed? (This is the difference in textualist and originalist circles between “original intent” and “original public meaning,” and the latter view — the one advanced by Justice Antonin Scalia — enjoys much greater support.)

That said, Judge Lynch can’t resist getting in a dig at Chief Judge Katzmann when it comes to legislative history, noting how “Chief Judge Katzmann has observed elsewhere that judicial warnings about relying on legislative history as an interpretive aid have been overstated, see Robert A. Katzmann, Judging Statutes 35–39 (2014).” Well played, Judge Lynch, well played.

It’s always neat when federal judges, often depicted as out-of-touch elites, acknowledge pop culture and current events. In his dissent, explaining why reading Title VII to include sexual harassment isn’t the same as reading it to include sexual-orientation discrimination, Judge Lynch cites a popular television show and gives a shout-out to #MeToo. He acknowledges that Title VII “is inconsistent with a ‘Mad Men’ culture in the office,” and then drops this footnote:

As we have recently been reminded, too many powerful men continue to engage in such practices. See, e.g., J.M.F., What is Sexual Harassment and How Prevalent Is It?, The Economist (Nov. 24, 2017).

Props to Judge Lynch — or his law clerk — for digging up a citation for #MeToo.

As a full-time legal academic before taking the bench — in fact, he still holds the title of Kellner Professor of Law at Columbia Law School — Judge Lynch can’t resist a good Con Law digression. He goes on to explain why, in a nutshell, it’s okay for federal courts to exercise a freer hand when interpreting the constitution rather than statutes. As a legal nerd and #appellatetwitter, I found this discussion quite interesting, and I thank Judge Lynch for it (even though it’s not at all necessary to his dissent — but the most fun stuff in opinions is often the most gratuitous).

Reminding readers that he’s not happy with his legal conclusion as a policy matter, Judge Lynch concludes with these words (emphasis added): “For these reasons, I respectfully, and regretfully, dissent.”

(Actually, the very last words of his opinion are — of course — in a footnote: “For the record, I note that I fully agree with the majority’s discussion of our 38 jurisdiction, Maj. Op. at 14–17.” In case you were wondering!)

The next dissent comes from Judge Debra Ann Livingston (who actually held the Kellner professorship at Columbia Law prior to Judge Lynch). She agrees with Judge Lynch’s statutory analysis, but — and this isn’t surprising, given her generally more conservative bent — she doesn’t join in his discussion of constitutional law (which she presumably sees as too loosey-goosey for her tastes).

The last word goes — as it so often does, at least at oral argument, where she’s a powerhouse — to Judge Reena Raggi. But I find her two-sentence dissent to be a bit… odd. Her first sentence summarizes the holding of Zarda, and her second sentence reads (emphasis added), “I respectfully dissent substantially for the reasons stated by Judge Lynch in Parts I, II, and III of his dissenting opinion and by Judge Livingston in her dissenting opinion.”

What to make of this? My guess: Judge Raggi agrees for the most part with Judge Lynch and Judge Livingston, but she doesn’t want to take ownership of every last argument or word in their opinions. It’s a move reminiscent of Justice Scalia’s in Myriad Genetics, when he wrote that he could not join the part of the Court’s opinion “going into fine details of molecular biology.” See also “dubitante.”

In closing, thanks to the Second Circuit for providing legal nerds with such fun fodder. And a big congratulations to Gregory Antollino, the prominent civil-rights and plaintiffs’ lawyer who represented the late Donald Zarda (and now represents his estate), and the many amici on Zarda’s side, including the EEOC, which actually took a position opposite to that of the Trump Justice Department; Lambda Legal, a leading LGBT-rights group; GLAD, represented by the legendary Mary Bonauto (described by gay former congressman Barney Frank as “our Thurgood Marshall”); the LGBT Bar Association of Greater New York aka LeGaL, another wonderful LGBT organization, represented in Zarda by Matthew Skinner (who continues his great work in a new role at the Richard C. Failla LGBTQ Commission of the New York State Courts); and Eric T. Schneiderman, Attorney General of the State of New York.

Zarda is a history-making victory, and it just made the world a fairer place for the LGBT community. Now we can’t be fired on account of our sexual orientation — at least as long as we live in the Second and Seventh Circuits.

But Zarda isn’t the last word on this issue. There’s now a circuit split, pitting the Second and Seventh Circuits against the Eleventh Circuit, so we could see the Supreme Court eventually step in (although not in Zarda, since the defendants said they won’t appeal).

It would be great to see Congress step up to the plate, passing legislation that would ban sexual-orientation discrimination in employment, and it would be great for President Trump to support and sign such a law. But I’m not holding my breath. There’s a reason why I’m an Article III, and not Article I or II, Groupie.

Zarda v. Altitude Express, Inc. [U.S. Court of Appeals for the Second Circuit]
Appeals Court Rules Anti-Gay Employment Discrimination Is Already Illegal Under Federal Law [Slate]
Courthouse Steps: U.S. v. Microsoft [Federalist Society]

Earlier:

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as 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 [email protected].

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