The majority in the 7th Circuit Court of Appeals has just rewritten the 1964 Civil Rights Act, ruling that the law’s ban on sex discrimination now means sexual orientation discrimination.
Judge Richard Posner, a libertarian legal lion first appointed to the court by Ronald Reagan in 1981, was at least quite frank about his legal reasoning. Sex discrimination did not mean sexual orientation discrimination. But now it does because, well, we have freshened up the meaning of that hoary, old word.
David French is on the case:
Judge Posner at least respects the public enough to be honest. Instead of indulging the majority’s charade that the word “sex” encompasses “sexual orientation,” he announces a rule of statutory interpretation that he calls, “judicial interpretive updating.” He’s explicitly giving an old statute a “fresh meaning,” one that “infuses [the statute] with vitality and significance today.
As Posner wrote in his decision:
It’s true that even today if asked what is the sex of plaintiff Hively, one would answer that she is female or that she is a woman, not that she is a lesbian. Lesbianism denotes a form of sexual or romantic attraction; it is not a physical sex identifier like masculinity or femininity. A broader understanding of the word “sex” in Title VII than the original understanding is thus required in order to be able to classify the discrimination of which Hively complains as a form of sex discrimination.
To get the results Judge Posner believes are just, he has to redefine the meaning of words. So he does. Because, well, who cares about democracy.
This decision, if upheld by the Supreme Court, amounts to giving the Democrats and the Human Rights Campaign its long held legislative goals, without the Democrats having to negotiate on questions like religious liberty protections for employers.
This is the same Judge Posner, by the way, who slammed as “stupid” the decisions on same-sex marriage and free speech by the conservative Supreme Court majority, including Chief Justice Roberts and Justice Scalia.
Brilliant he may be. But also arrogant, condescending and lawless, certainly.