In the 53 years since the Civil Rights Act of 1964 became law, no court had ever held that the landmark legislation’s prohibition against “sex” discrimination extended to sexual orientation. This week that changed and the Seventh Circuit — in deciding Hively v. Ivy Tech Community College — found that when President Lyndon B. Johnson signed the Civil Rights Act he was protecting gay employees even if he didn’t know it.
Make no mistake: Few would argue that it is just for an employer to discriminate on the basis of sexual orientation. It is why many states have passed civil rights laws prohibiting such discrimination.
But what happened in a federal court in Chicago on Tuesday is not about protecting the LGBT community. Instead, the Seventh Circuit has used the LGBT community as a conduit to further distance the federal judiciary from the checks and balances that once contained it.
“Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted,” Judge Richard Posner wrote in a concurring opinion. “But I need to emphasize that this third form of interpretation — call it judicial interpretive updating — presupposes a lengthy interval between enactment and (re)interpretation.”
What Posner is saying is simple as it is scary. Under this theory, the laws enacted by Congress have an expiration date, and when that date comes the judiciary has the right to update the law. It is a pop culture precedent that Posner justifies by asking, “Who will be hurt if gays and lesbians have a little more job protection?”
Posner asked the wrong question. The question should have been “Who would be hurt if the judiciary assumes the role of the legislature in making sweeping laws?”
Our constitution does not contain a “no harm-no foul” clause. By stretching the meaning of the word “sex” to include sexual orientation the Seventh Circuit hurt our system of government. As a gay American who has suffered workplace discrimination, I agree that sexual orientation should be a protected class. I just disagree that shredding the longstanding principle of separation of powers is the proper way to reach such a worthy end.
If sexual orientation is to be a protected class than Democrats should have amended Title VII when they had unified government in 2009 and 2010. Or, better yet, the LGBT community should try and work with President Trump rather than blindly demonize him. This is how our system of government works.
By bestowing lawmaking power to the legislature, the Founding Fathers were ensuring that the will of the people would be respected. While this process may be messy and long, it is a process that protected against one or a few having the sole authority to make law detached from the people’s will. Posner, and his Seventh Circuit colleagues, rejected that view in Hively.
“We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not,” Posner wrote. “We are taking advantage of what the last half century has taught.”
But Posner is and must be obedient to the laws passed by the 88th Congress, for if the judiciary has the authority to amend laws after the fact how is the law honored? If a law is not what it appears to be, how is Posner any different than Nero?
And if Posner is using the last 50 years as justification, he is making a grave error. In terms of judicial power, the last half century has proven extremely dangerous. From finding the right to contraception in penumbras to the right of corporate free speech, judicial activism has created an atmosphere where the nation runs to the Supreme Court for answers to the day’s most pressing questions.
The court, though, was never meant to be our Oracle of Delphi. If the legislature and the people permit Posner and the courts to usurp that power, no matter how just the reasoning, can we really say we live in a constitutional republic?
Joseph Murray (@realJoeMurray) is a contributor to the Washington Examiner’s Beltway Confidential blog. Previously, he was a campaign official for Pat Buchanan. He is the author of “Odd Man Out” and is administrator of the LGBTrump Facebook page.
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