Judge Posner to America: We Rule, You Submit

April 5, 2017

by Maggie Gallagher


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.


Maggie Gallagher is a senior fellow at the American Principles Project.

Archive: Maggie Gallagher

5 comments on “Judge Posner to America: We Rule, You Submit”

  • jk105 says:

    Yes, Milty, DOMA was indeed the brute force of Federal government. And those “people’s” vote is the mob using the brute force of government to force their will against a minority. Such totalitarian actions are unconstitutional. I will point out it was the brute force of government deny church’s the right to legally marry same-sex couples. Republicans hate religious liberty.

    Those whose savage “consciences” oppose same sex marriage can still participate in bigotry in private clubs and hateful religious institutions. But not in public accommodations.

  • Mary Juarez says:

    This is so stupid, a child is born a boy or a girl and it should be kept that way. Should we not put names on birth certificates neither because as people get older they become child molesters and killers and that’s what they’re named? Let’s get real now let this be up to the person when they get older if they want to change there birth certificate. It’s there decision not yours. I’m tired of Democrats and liberals trying to run everything in this country. Enough is enough.

    • jk105 says:

      You are tired of Democrats “running everything.” I take it you are therefore morally repelled when Republicans try to run everything when they use the brute force of government to deny same-sex couples the right to a legal marriage. That’s running things.

      • Milton says:

        Republicans did not use the brute force of government – they let the people of each state decide. All but a few states passed with huge majority votes DOMA statutes defining marriage as one man to one woman. It was Democrats who used the brute force of the Federal judiciary and the lawlessness of the Obama admin to ignore the Federal DOMA law and overrule the expressed will of the people to force legal recognition of same-sex marriage on all 50 states, and with it, punitive measures for any whose consciences are violated by participation.

  • jk105 says:

    Although Posner is right, Scalia’s disgusting bigotry on decisions against same sex marriage were worse than stupid–they were hatefully anti-religious freedom.

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