This week, a majority of judges of the U.S. Court of Appeals for the 7th Circuit broke with 50 years of settled legal precedent. They concluded that when Congress forbade employment discrimination on the basis of “race, color, religion, sex, or national origin” in Title VII of the Civil Rights Act, Congress also forbade discrimination on the basis of sexual orientation — and nobody figured it out until now. The majority decision and accompanying concurring opinions are, obviously, a stretch. They are also explicitly dismissive of Congress and the role of legislatures in crafting and revising the statutes that govern us.
Judge Diane Wood, writing for the majority, claims “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” She comes to this via rhetorical sleight of hand. The defendant community college would not have discriminated against the plaintiff lesbian if she were a straight man, Wood hypothesizes, therefore the college allegedly discriminated on the basis of sex.
This so obviously misses the point (the relevant comparison should be whether the college would not have discriminated against the plaintiff if she were a gay man) that Wood immediately rushes to reassure the reader that Congress “may not have realized or understood the full scope of the words it chose” when it enacted the law. The word in question was “sex.”
Judge Richard Posner, writing a concurring opinion, goes even further, arrogantly declaring that judges are not “merely the obedient servants of the 88th Congress (1963-64), carrying out their wishes.” In his view, which he terms “judicial interpretive updating,” it is the role of the judiciary to update particularly old statutes to account for shifts “in the political and cultural environment.”
He openly concedes that the law passed by Congress did not include protection from sexual orientation discrimination, but declares that because such a ban would be good policy in the modern era, he has the independent authority to interpret the statute to include it. He then justifies this exhortation to misbehavior by asserting that judges should “avoid placing the entire burden of updating old statutes on the legislative branch.” Needless to say, Article I, sec. 1, cl. 1 of the Constitution does not make an appearance in Posner’s opinion.
Wood and Posner also conveniently waive away the fact that on several occasions Congress has considered amending Title VII to forbid sexual orientation discrimination, but has not done so, even while it addressed sexual orientation in other statutes. They fail to recognize that Congress, having the constitutional authority to establish what the law is, does not bear any burden to also declare what the law is not. If Congress wants to amend Title VII, it surely knows how to do so. Worse, the Seventh Circuit is daring Congress to undo this decision by passing legislation expressly excluding gays and lesbians from Title VII, an act of open hostility that few, if any, congressmen or senators will be eager to embrace.
The decision thus follows comfortably in the trend of challenges to the authority of Congress that go unanswered on Capitol Hill. A weak legislative branch encourages the executive and judicial branches to encroach on legislative powers. Whether that’s the power to revise legislation, as in this case, or in the power to control executive agencies (recall that they are all creations of Congress, not the executive), Congress has long been ceding more and more authority to the unelected.
Until Congress is willing to push back, expect to see more judges giving statutes Posner’s “judicial interpretive updating.” At the moment, there is no one willing to stop them.
Gabriel Malor (@GabrielMalor) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an attorney and writer in Washington, D.C.
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