George Will: Supreme Court to decide whether ‘sex’ includes sexual orientation | TribLIVE.com
George F. Will, Columnist

George Will: Supreme Court to decide whether ‘sex’ includes sexual orientation

George Will
1758974_web1_WEB-scales-of-justice

WASHINGTON

The beginning of the Supreme Court’s term this week includes momentous oral arguments on Tuesday in two cases that illustrate clashing theories about how statutes should be construed. If properly decided, the cases will nudge Congress to act like a legislative body.

At issue is whether workplace discrimination based on sexual orientation is forbidden by the 1964 Civil Rights Act, which proscribed discrimination because of a person’s “race, color, religion, sex, or national origin.” The question is whether “sex” also proscribes discrimination based on sexual orientation. Tuesday’s arguments will reprise those made in 2017 in another case. Then the U.S. Court of Appeals for the Seventh Circuit held, in effect, that Congress can now be said to have proscribed such discrimination without intending to. Dissenting judges rejected this conclusion because it empowers courts to do what Congress clearly did not do but easily could do.

Kimberly Hively, a part-time adjunct professor at an Indiana community college, says she was repeatedly denied a full-time position, and then her part-time contract was not renewed, because she is a lesbian. The Seventh Circuit majority said the question is “what it means to discriminate on the basis of sex” — are “actions taken on the basis of sexual orientation” a “subset of actions taken on the basis of sex”?

Citing “the broader context of the statute,” the majority acknowledged but disregarded the fact that Congress has “frequently” considered adding, but has declined to add, “sexual orientation” to the act. The majority professed to have “no idea what inference to draw from congressional inaction.” Besides, “The goalposts have been moving over the years, as the Supreme Court has shed more light on” the phrase “sex discrimination.” So, the majority said, Congress in 1964 “may not have realized or understood the full scope of the words it chose.” Discrimination based on sexual orientation necessarily involves “taking the victim’s biological sex … into account.” Hence “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

“Times have changed,” said a judge concurring with the majority opinion. He continues: “[T]he meaning of the statute has changed and the word ‘sex’ in it now connotes both gender and sexual orientation.” The concurring judge said that “it is well-nigh certain” that homosexuality “did not figure in the minds of the legislators” in 1964. Then “homosexuality was almost invisible.” Since then, however, “nothing has changed more” than attitudes toward sex, which now “has a broader meaning than the genitalia you’re born with.” Therefore — non sequitur alert — the “passage of time and concomitant change in attitudes … can justify a fresh interpretation” of the statute that is “ripe for reinterpretation.”

Ripeness means, for the concurring judge, “taking advantage of what the last half century has taught” in order to correct “statutory obsolescence” and “to avoid placing the entire burden of updating old statutes on the legislative branch.” When and where, one wonders, were courts authorized to share the “burden” of legislating?

The Seventh Circuit’s minority said that if Hively was denied a job because of her sexual orientation, she was treated unjustly, but not illegally under the 1964 Civil Rights Act. It is depressing but clear that the Supreme Court needs to remind Congress — and the Seventh Circuit — that “statutory updating” is Congress’ job.

George Will is a columnist for The Washington Post and can be reached via email.

TribLIVE commenting policy

You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.

We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.

While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.

We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers

We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.

We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.

We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.

We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.