A ruling by the 7th Circuit Court of Appeals in Chicago reopens the question of whether the 1964 Civil Rights Act’s protections apply to LGBT workers in the same way they bar discrimination based on someone’s race, religion or national origin.
The immediate impact of the 7th Circuit’s decision Tuesday is that employers in Illinois, Indiana and Wisconsin — the states under the court’s jurisdiction — would be breaking federal law by showing bias against gay, lesbian, bisexual and transgender employees.
But because the ruling conflicts with all the others made by federal appellate courts since the 1970s, the U.S. Supreme Court may ultimately have to decide whether to uphold the Chicago ruling as national precedent or strike it down as judicial overreach.
Here’s a look at how that might happen on a court currently operating with eight justices pending the Senate confirmation of President Donald Trump’s nominee, Neil Gorsuch:
Eleven 7th Circuit judges heard arguments in November in a lawsuit by Indiana teacher Kimberly Hively, who alleged that Ivy Tech Community College in South Bend didn’t hire her full time because she is a lesbian.
After deliberating for four months, the court ruled decisively — 8 to 3 — that the 53-year-old law most closely associated with prohibitions on racial discrimination also barred discrimination against LGBT workers.
In the past four decades, nine other federal appellate courts nationwide heard similar cases and invariably reached conclusions opposite to the Chicago-based court.
The issue largely hinges on one word in Title VII of the Civil Rights Act: “Sex.” That’s the relevant section outlawing discrimination based on race, color, religion, national origin or sex.
Previous decisions concluded lawmakers in 1964 clearly intended for “sex” to refer only to whether someone was male or female. But the 7th Circuit found the word “sex” can just as well mean “sexual orientation.”
In an opinion concurring with the majority, Judge Richard Posner wrote that changing norms call for a change in interpretation.
“We understand the words of Title VII differently, not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture,” Posner wrote.
Road to the high court
The Supreme Court typically agrees to take up an issue when it sees judicial discord between the nation’s 13 U.S. circuit courts. Now that the 7th Circuit’s interpretation of the Civil Rights Act stands alone, the odds improve that the Supreme Court will take it on one day.
The more immediate ripple effect of the 7th Circuit ruling will be on other U.S. courts of appeal, explained Greg Nevins, of Lambda Legal, which brought the case on behalf of Hively.
When similar cases come before them, they’ll have to account for findings of the 7th Circuit, which Nevins said is well-respected for the intellectual rigor of its judges and so has tremendous influence on other courts.
“Courts elsewhere can’t just sit back and rely on rulings over 15 or 20 years as being the last word,” he said.
While the 7th Circuit is forcing a reexamination of the law and will likely influence other courts, the Hively case will likely not be the one that goes before the high court. Ivy Tech, which denies ever discriminating against Hively, has indicated since Tuesday that it doesn’t intend to appeal to the Supreme Court.
The Gorsuch factor
The nation’s highest court has tended to split between liberals and conservatives on the hot-button social issues. That has frequently left the deciding vote to moderate Justice Anthony Kennedy, including when he cast the decisive vote in a 2015 ruling that gave same-sex couples the right under federal law to marry.
It’s likely that by the time any such case makes it to the high court, Neil Gorsuch — Trump’s nominee to fill a vacancy on the nine-member court left by Antonin Scalia’s 2016 death — will have taken his seat.
A Supreme Court with Gorsuch on the bench would mean five justices appointed by Republican presidents and four by Democrats, though the 7th Circuit’s ruling demonstrates that who makes the appointments isn’t always a reliable indication of how judges vote. Out of the eight appellate judges who agreed the Civil Rights Act should incorporate bias against LGBT workers, five were Republican.
Gorsuch’s judicial philosophy of focusing on the original texts to resolve conflicts over the law suggests he’d sympathize with the views of the three dissenting 7th Circuit judges. The dissenting opinion accused the majority of making law, not interpreting it, adding: “Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation.”
That strongly echoes pronouncements by Gorsuch. He wrote in a 2015 opinion that there was always a remedy if existing law is unclear: “It’s called legislation. ... Admittedly, the legislative process can be an arduous one. But that’s no bug in the constitutional design: It is the very point of the design.”
The case is Kimberly Hively v. Ivy Tech Community College of Indiana, 15-1720.