Why Does The 7th Circuit Hate Gays?

By any objective measure, the Seventh Circuit’s holdiing in Hively v. Ivy Tech Community College is unremarkable.  The court ruled that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based upon sexual orientation.  It’s been there before, but that was then. This is now.

Once again this court is asked to consider whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation. This time, however, we do so in the shadow of a criticism from the Equal Employment Opportunity Commission (EEOC) that this court and others have continued to reflexively declare that sexual orientation is not cognizable under Title VII without due analysis or consideration of intervening case law.

The EEOC’s criticism has created a groundswell of questions about the rationale for denying sexual orientation claims while allowing nearly indistinguishable gender non‐conformity claims, which courts have long recognized as a form of sex‐based discrimination under Title VII. After a careful analysis of our precedent, however, this court must conclude that Kimberly Hively has failed to state a claim under Title VII for sex discrimination; her claim is solely for sexual orientation discrimination which is beyond the scope of the statute. Consequently, we affirm the decision of the district court.

The big difference this time was that the EEOC, the agency charged with administering Title VII, has determined that a law prohibiting sex discrimination should now prohibit sexual orientation discrimination. 

The EEOC, the body charged with enforcing Title VII, came to this conclusion for three primary reasons. First, it concluded that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  (proffering the example of a woman who is suspended for placing a photo of her female spouse on her desk, and a man who faces no consequences for the same act). Second, it explained that “sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex,” in which an employer discriminates against lesbian, gay, or bisexual employees based on who they date or marry. Finally, the EEOC described sexual orientation discrimination as a form of discrimination based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms, and appearances.

Good arguments, all. But there is one problem standing in the way.

Our holdings and those of other courts reflect the fact that despite multiple efforts, Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.

The Circuit opinion goes to great lengths to express that discrimination on the basis of sexual orientation is reprehensible. But Congress makes law, and Congress has yet to amend Title VII to include sexual orientation as a protected classification. It should, but it hasn’t.

And so, agenda-driven legalish pundits, who thought this time the court should finally give them what Congress has refused, have done what they could to spin the opinion to deceive the public as to the holding and, more significantly, the process. Making people stupider about law isn’t nearly as important as winning on an issue near and dear to their heart.

A clearly conflicted Judge Ilana Rovner, joined by Judge William Bauer, went on for more than 40 pages, however, detailing what Rovner described as “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

Addressing the Equal Employment Opportunity Commission’s 2015 decision — backing up Hively’s position — that sexual orientation discrimination is a type of sex discrimination barred under Title VII, Rovner wrote, “The idea that the line between gender non‐conformity and sexual orientation claims is arbitrary and unhelpful has been smoldering for some time, but the EEOC’s decision … threw fuel on the flames.”

The “paradoxical legal landscape” is, indeed, a real problem, and should serve as a driving force for Congress to address the fact that gay marriage is a right, no matter how retrograde some constituencies feel about it. And it’s just sound policy.

But the argument that troubles the court derives from a different problem as well, the mission creep of administrative agencies to further administrative agendas. The reason this is an issue is that Congress has rejected modification of Title VII in the past, and is largely incapable and unwilling to do its job now. So if Congress won’t change the law, regulatory agencies are going to do it on their own.

Is America in a post-Congress stage? Are courts only to defer to the “expertise” of administrative agencies?  Does the reach of the law depend on the whims and political agenda of the person doing the reaching?

If you want the law to change, you don’t really care. You want the outcome, because it’s right! In this instance, there really isn’t any doubt that it’s right. That no moderately sentient being thinks employment discrimination on the basis of sexual orientation is okay. It’s absurd.

But how do we achieve this outcome? Lambda Legal tried to get the Seventh Circuit to disavow precedent in light of the EEOC’s mission creep, to disregard Congress’ refusal to give what they wanted the court to take. The opinion calls it strong evidence of congressional intent. Some might call it conclusive evidence because, well, it’s Congress deciding what Congress, under our system of government, gets to decide.

Part of the background giving rise to the paradox, however, reveals how baby steps, which seemed innocuous at the time, come back to be twisted for ulterior purposes. The sentence in Judge Rovner’s opinion, “The idea that the line between gender non‐conformity and sexual orientation claims is arbitrary and unhelpful has been smoldering for some time,” reflects one of those baby steps.

The phrase “gender non-conformity” refers to the Supreme Court’s decision in Price Waterhouse v. Hopkins, a sex discrimination holding that a woman can’t be discharged for not conforming to gender stereotypes. The rhetorical flourish of “gender non-conformity” takes a step further away from a straight-up sex discrimination analysis into areas where the Court didn’t go, but which, given the shifts in rhetoric over the past 27 years, doesn’t seem unreasonable. Hence, the unintended paradox, even if only created by an unintended rhetorical shift almost three decades later.

The problem remains that advocates have captured the administrative agencies, which would unilaterally create law that Congress has refused to enact, and now want courts to approve these laws as interpretative baby steps further away from what Congress did enact.

Should Congress do its job? Obviously. This is how a tripartite government is meant to function. But if it doesn’t give advocates what they want, does that make it acceptable for administrative agencies to manufacture law to suit their agendas and compensate for Congress’ failure? Be careful what you wish for, as there is an election coming up.

You may want this outcome very, very badly, but if things don’t go as you expect with this election, or the next, or the one after that, and eventually there will be an administration that gets to pick its bureaucrats instead of the ones you adore, the nation will be run by bureaucrats in their fiefdoms imposing their will upon America. This is not the way this nation was meant to function, and your agenda today will come at the expense of our fundamental system of checks and balances.

The Seventh Circuit doesn’t hate gays. Not even a little bit. It adhered to the law. That’s not a bad thing. Don’t try to spin it as if it is.

20 thoughts on “Why Does The 7th Circuit Hate Gays?

  1. Froggy64

    The judiciary is there, among other roles, to prevent the executive from encroaching upon the legislature’s prerogatives. But who stops the judiciary from doing so? In other countries changes to, for example, abortion law and marriage law, have been effected by legislatures reflecting changing opinion by changing statutes. Whether you agree with the changes or not, that’s the job of the legislature. In the US such changes in law have come about by fiat of the Supreme Court regardless of the will of the legislature. This leads to the kind of estrangement from the system of government that is dangerous for a democracy and enhances the charge of demagogues that the system is rigged.

    1. SHG Post author

      Not exactly. The Supreme Court determines the constitutionality of acts of the other branches. If the question is constitutionality, then the determination is properly made by the Supreme Court. If the question is one of policy as reflected by law, then it’s to be made by Congress.

      1. Billy Bob

        Theoretically, but not really. Why? Well, because it [the Constituition] is occasionally vague, especially the Bill of Rights.
        The S.C. was originally designed to be the weakest branch of government; however, in the intervening 200 years, has morphed into the strongest. Or so it would appear, we have come to expect. Everybody thinks the Supreme Court is the court of last resort and has final word. (See previous essay about finality and supremacy of SCOTUS.)

        Why and how did this happen? The only powers the Congress and the President have over SCOTUS are the appointment of justices when vacancies occur and advice and consent by the Senate for life appointments which cannot be revoked except for cause. That does not give the executive or the legislative branches much wiggle room. For a branch of government which can only bring itself to review (grant certiorari) to one to three percent of cases per annum, that is terribly inefficient and unfair to multitudes of petitioners.
        This is a bunch of black robed princes and princesses who are under-worked and overpaid. Changes are in order, and long overdue.

        1. SHG Post author

          I realize you worked very hard on this comment, didn’t randomly capitalize any words or indulge your inexplicable need to randomly toss in peculiar and misspelled political references. To show my appreciation for your effort, I’m posting it. You’re welcome.

          1. Billy Bob

            Thank you. Didn’t work all that hard on it. You work a whole lot harder than we do.
            Actually, we’ve said just about everything we have say, and more than once. And
            so have a few others! Irregardless?!?

            Please do not take me to the woodshed! Finally, the French do NOT have a word for “entrepreneur”. (Slow day on Wall St.!)

            1. Robert Beckman

              I’ll try to break this down, though Mr. Greenfield may strike this as too far from the point of his thread, as we’re in his house.

              The Courts has power only in relation to laws that the Legislature passes, or to other acts of the Executive under their own authority. The reason you think the courts have so much power is that they can be called upon to act on existing actions by the legislature or executive.

              While you’re only crediting new acts to the power of the legislature, you need to view its power in the context of all existing law. If, for example, an active and effective legislature (counter factual, I know) believed the state of the law to be perfect, they wouldn’t toasts any new laws, but they’d be exercising their power to keep the laws as-is just the same.

              If anything, the legislature has arrogated its power to the executive by passing vague laws and asking the executive (Agencies) to fill in the details (regulations).

              The courts can then be affirmatively invoked to rule on those combined laws/regulations, while the citizen can enforce action by neither of the other branches.

  2. Jonathan

    What an odd decision. The court makes a very convincing argument the rule is irrational and unworkable and gives short shrift to the reasons it’s abiding by precedent. The actions of subsequent congresses make for a very good political argument (against judicial and administrative overreach) but not a very convincing interpretive one. You put the paradox very well. This mess is a great reminder that words matter. SCOTUS might not have been able to predict how fluid a notion gender would become but they still shouldn’t have conflated it with sex. The court was right to restrain itself and reject the EEOCs overreach. It would have been nice if they spent fewer pages on their irrelevant opinion about sexual orientation and more on the importance of stare decisis and settled law. Luckily its pie in the sky to think anyone besides lawyers reads circuit court decisions.

    1. SHG Post author

      In fairness, it doesn’t require any great exposition to explain adherence to precedent. The rest was largely Gertruding. When the Supremes decided Hopkins, they likely couldn’t have conceived how it would be read nearly 30 years later with a huge paradigm shift with regard to public acceptance of sexual orientation, or how the EEOC would have extended its authority further and further.

      The problem with the slippery slope is that it never seems very dangerous when you take that first step, and you can never be quite sure whether you’ll slide down the slope or stop at some point.

        1. SHG Post author

          The Supreme Court isn’t bound by precedent. It makes precedent. It applies the concept of stare decisis to maintain consistency, but when it deems it necessary, it breaks from the past. That’s its job.

  3. KatoSauce

    The EEOC was checked here by the 7th Circuit. The EEOC could also be checked by an act of Congress too. You seem to get queasy watching the sausage get made, but this is how it works when Congress gives agencies the authority to interpret to a degree and enforce whatever provisions or goals the specific law has in mind. The EEOC didn’t have the authority here because Congress didn’t hand it over.

    You exaggerate the danger of the new administration. That’s part of our government too, isn’t it? Spoils go to the victor. If America is post-Congress as you ask, its because Congress won’t or doesn’t act not because it can’t.

    1. SHG Post author

      Administering laws passed by Congress and extending laws into areas far beyond anything Congress intended (and has since expressly rejected) are entirely different things. The EEOC is an admin agency, not the center of the universe with unfettered authority to do whatever it pleases.

      As for spoils, this isn’t war. The new admin doesn’t get to turn the nation into its sex slaves.

  4. Jay

    The EEOC exceeded its mandate of enforcing the laws as written, and is doing what all executive branches have done under Obama – advocating for desired policy ends, and trying to change the facts on the ground by internal interpretation documents, “enforcement guidance,” etc.

    The real question is, why hasn’t ENDA passed? When Democrats held Congress, an intraparty divide about whether the law should apply to transsexuals/gender identity blew it up. I think today some form of the law could pass Congress, but it would have (appropriately) religious liberty protections that would merit a veto. Meanwhile, virtually every major city has such protections as a matter of local ordinance or state law. The perfect is the enemy of the good, it seems.

    1. SHG Post author

      I think you’re right. We’re past the point where adding sexual orientation to Title VII would be particularly controversial, but it would open a can of worms for other groups that want in as well, which either are controversial, fail to fit well with the statutory scheme or raise collateral issues that can’t be easily addressed.

  5. John Barleycorn

    I think you look kinda sexy when you channel your speach writing chops when concluding posts during the rising action of a presidential election cycle.

    You should let your hair down and write a “powers” opera post that redefines the five elements. Or then again you could just start letting me link opera so you don’t have a stroke before you get to play good cop bad cop with your first grandchild.

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