Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals made legal-outrage history a few days ago with a concurring opinion he wrote in Hively v. Ivy Tech Community College. The Chicago-based appellate court ruled in the case that Title VII of the federal 1964 Civil Rights Act, which forbids discrimination in employment on the basis of sex, also forbids discrimination on the basis of sexual orientation. The ruling allowed a woman who claimed she had been fired from her community-college job because she was a lesbian to proceed with a lawsuit under Title VII, which, unlike many employment-discrimination laws, allows parties who prove injury to collect triple damages plus attorney’s fees.

Sexual orientation, of course, isn’t mentioned in Title VII, and Posner agreed that Congress, when it passed Title VII some 53 years ago, hadn’t intended to include sexual orientation as a protected category even under the most liberal definition of sex discrimination. Posner’s argument was essentially: Times have changed, and Congress just hasn’t kept up with the times. He wrote: “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.” In other words, we judges ought to stop pretending that we’re simply interpreting the law; we’re amending the law to confer a potential triple-damage bonanza on this woman because Congress either hasn’t or won’t.