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Sat Apr 8, 2017, 10:23 PM

Thunderbolt: sexual orientation court case dares SCOTUS, other courts to find flaws in decision

This is a breath of fresh air among all the other news lately. There were some very conservative judges involved in this decision. It is likely to go to SCOTUS and will be a test to see what Gorsuch does with it.

A Thunderbolt From the 7th Circuit

In a landmark opinion, a bipartisan group of judges found that the Civil Rights Act prohibits anti-gay workplace discrimination.
By Mark Joseph Stern
Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

On Tuesday, the U.S. Court of Appeals for the 7th Circuit issued a landmark decision in Hively v. Ivy Tech holding that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The 8–3 ruling is an extraordinary victory for LGBTQ advocates—an emphatic declaration from a bipartisan group of judges that anti-gay workplace discrimination is clearly illegal under federal law. It also creates a sharp circuit split, increasing the odds of Supreme Court review. If that review comes and at least five justices agree with the 7th Circuit, their decision will effectively outlaw anti-gay employment discrimination in all 50 states.

The facts in Hively are straightforward. Kimberly Hively is an openly gay professor who believes that her former employer, Ivy Tech Community College, discriminated against her on the basis of sexual orientation. Hively sued Ivy Tech under Title VII, which prohibits workplace discrimination “because of sex.” A district court ruled against Hively in 2015, concluding that Title VII does not bar sexual orientation discrimination. A panel of judges for the 7th Circuit affirmed that ruling in 2016—but noted that it was only doing so because it was bound by two 7th Circuit precedents from 2000. In a frank opinion by Judge Ilana Rovner, a George H.W. Bush appointee, the majority signaled that it found these decisions dubious and untenable, urging the full court to reconsider them en banc. The court agreed, hearing arguments in November. And on Tuesday, it vindicated Rovner’s concerns, overruling those old precedents and holding that Title VII protects all gay employees.

As the lopsided vote in Hively indicates, the court did not find much difficulty reaching this conclusion—nor did it view the issue as a partisan one. (Five Republican appointees, including influential conservative Judge Frank Easterbrook, joined the majority.) Chief Judge Diane Wood’s opinion for the court largely tracked the reasoning laid out by the Equal Employment Opportunity Commission when it determined in 2015 that Title VII bars sexual orientation discrimination. (EEOC Commissioner Chai Feldblum told me on Tuesday that she was “gratified to see that the 7th Circuit has adopted the simple logic that sexual orientation discrimination is a form of sex discrimination and I hope its reasoning can serve as a model for other courts.”)


Tuesday’s decision is, in short, a thunderbolt. It lays out three cogent reasons why sexual orientation discrimination is always a form of sex discrimination. And it essentially dares other courts, including the Supreme Court, to find flaws in its careful, disciplined analysis. Wood’s majority opinion contributes to a growing (though not yet universal) consensus among federal courts that Title VII obviously protects gay employees—and confirms that this consensus is bipartisan. It will be impossible for other judges to ignore. And with a little luck, it will soon push a majority of the Supreme Court to recognize that anti-gay discrimination is, at root, discrimination “because of sex.”


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Reply Thunderbolt: sexual orientation court case dares SCOTUS, other courts to find flaws in decision (Original post)
Amaryllis Apr 2017 OP
elleng Apr 2017 #1
Amaryllis Apr 2017 #2
elleng Apr 2017 #3

Response to Amaryllis (Original post)

Sat Apr 8, 2017, 10:30 PM

1. 'Judge Richard Posner, an intellectual giant of the judiciary, wrote a concurrence,

and so did the highly regarded Judge Joel Flaum (still an active judge, even though he’ll turn 81 this year).'


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Response to elleng (Reply #1)

Sat Apr 8, 2017, 10:42 PM

2. Good article you linked to. This is interesting:

"The court voted 8-3, and four judges wrote opinions. The majority opinion came from Chief Judge Diane Wood — a leading light of the legal left, who was interviewed by President Obama for the Supreme Court seat that ultimately went to Elena Kagan. The dissent was penned by Judge Diane Sykes — a top conservative judge, and a finalist for the SCOTUS nod that Judge Neil Gorsuch got."

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Response to Amaryllis (Reply #2)

Sat Apr 8, 2017, 10:54 PM

3. I wanted to get a word in about Judge Posner, also frequently suggested for the Supremes.

The 7th Circuit is important.

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