# Big ruling: seventh circuit decides sex discrimination includes sexual orientation discrimination **URL:** \ **Category:** Great Debates\ **Created:** [April 4, 2017, 11:17pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776 "2017-04-04T23:17:30Z")\ **Posts on this page:** 8\ **Page:** 11
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 7, 2017, 4:01pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/201 "2017-04-07T16:01:45Z")
> [@Bricker](#): > > Or when I posted Neither of which counter anything I said. But let’s focus on the positive. We agree that the outcome of this ruling was well within the power of the court and is in no way “judicial activism”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2017, 4:08pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/202 "2017-04-07T16:08:00Z")
> [@k9bfriender](#): > > Is it okay for that calculus to be changed any time the ideological makeup of congress shifts, and they pass all new laws? Yes. That’s exactly what’s meant by “We, The People,” having the sovereign power. It’s not “We, The People (If They Agree With Me).” ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [April 7, 2017, 4:44pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/203 "2017-04-07T16:44:17Z")
> [@Bricker](#): > > Yes. > > That’s exactly what’s meant by “We, The People,” having the sovereign power. > > It’s not “We, The People (If They Agree With Me).” It is “We, The People (If enough of them Agree With Me).” ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [April 7, 2017, 5:52pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/204 "2017-04-07T17:52:20Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Taken to this extreme, I agree. Again, however, I’m arguing about results. Time and again over the past half-century, courts in the US have been at the forefront of increasing justice and fairness, to the extent that “activist judges” have become a bogeyman of the right. Yes, I might “imagine” a way this would go wrong; but if I’m not imagining, if instead I’m paying attention to how it’s actually gone, those “activist judges” have made the world a materially better place for a lot of people. Reining them in in the way that a lot of conservatives desire, reducing their ability interpret expansively and according to modern social norms instead of archaic ones, would historically have damaged the movement for greater justice **as I see it**. Therefore, **as I see it** , this sort of activism is salutary. I recall earlier in this thread, **Bricker** made mention of the _Lochner_ case. As I recall, neither you nor anyone else bothered to take up his offer to discuss “judicial activism” when it was not directed towards the goals you consider important. You really should study the “Lochner” era of the Supreme Court. To this day, it gives the phrase “substantive due process” such a bad name that, despite the fact that’s exactly what the Court is applying in modern 14th Amendment cases regarding fundamental rights, the Court does everything it can to avoid acknowledging this. And it’s not a stretch to think that we could have had a similar period of “conservative” judicial activism much more recently. Imagine what the Court would have been like if Robert Bork would have been confirmed. Anthony Kennedy is much more centrist than Judge Bork is likely to have been. Imagine _Roe v. Wade_ overturned. Imagine _Miranda_ scrapped. Imagine if most of the decisions of the 50s and 60s and 70s which acted to expand what you call civil rights, or “fairness and justice” had been removed. It didn’t happen, but only because Justice O’Connor and Justice Kennedy didn’t believe in judicial activism to achieve goals they were personally sympathetic with. In my study of the Court and its decisions, I have often found myself in disagreement with fringe justices at either end. I dislike the opinions of Justice Thomas in large measure because I consider him horribly result-oriented in his judicial thinking. But I also dislike the opinions of the famous Brennan-Marshall, JJ., in dissent monster, for exactly the same reason. I will always prefer a Court decision that accomplishes an important goal through a process that does not simply come up with some fig leaf of judicial thinking to cover up the fact that the end result was always to goal, and the rationale used didn’t really matter. If that means that sometimes you cannot quite get where you might want to go, so be it. There ARE other ways to accomplish change in society besides coercing it through judicial fiat. We used to be much better about that. > [@](#): > > Again and again, I’m arguing in favor of the exact sort of activism Bricker is decrying in this ruling. I am NOT arguing that burning the Constitution would be a good approach, not because I fetishize procedure but because I recognize that would result in real harm to real people. But I do encourage judges to rule expansively in favor of justice and freedom as I understand them, and I consider that sort of persuasive effort (little though my persuasive powers be, admittedly) also salutary. And no one here is disparaging you for advocating that judges rule expansively. Certainly I am not, nor as I read it is **Bricker**. What we both are saying is that expansion (or contraction!) has to come via sound judicial analysis. This is a big reason that I believe it’s much better to attack anti-homosexuality efforts through already existing gender discrimination mechanisms, than to suddenly decide that homosexuals deserve just as much protection in our society as the descendants of our former slaves, for whom protections were explicitly enshrined in the Constitution via the 13th, 14th and 15th Amendments. That’s why I like the decision in the case being considered in this thread. (There are other reasons as well, such as the difference in considering Title VII law vs. considering 14th Amendment jurisprudence, but that’s for another day). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2017, 5:56pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/205 "2017-04-07T17:56:27Z")
> [@k9bfriender](#): > > It is “We, The People (If enough of them Agree With Me).” Yes! Yes. Now, what do you imagine “enough” to be? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2017, 6:06pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/206 "2017-04-07T18:06:28Z")
> [@DSYoungEsq](#): > > What we both are saying is that expansion (or contraction!) has to come via sound judicial analysis. Yes – and indeed through _principled_ analysis. It’s incumbent for judges to be able to articulate the specific analytical method they will use to construe the law, and then hew to that even when it delivers a result they don’t personally favor. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [April 7, 2017, 6:13pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/207 "2017-04-07T18:13:08Z")
> [@Bricker](#): > > Yes! > > Yes. Now, what do you imagine “enough” to be? Well, kinda depends, doesn’t it? It appears that one candidate getting more votes than another is not it. Like, three million. It appears that a political party in power can install voting procedures as are most likely to ensure they remain so. I am told that them’s the rules, and that’s just how it is. Of course, I know that, and that is what I, and many others, are bitching about. So, the answer to your question, how many is enough? A majority so utterly massive that the creative minds of the Forces of Darkness cannot come up with a plausible denial, so massive that they would be too embarrassed to try. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [April 7, 2017, 6:20pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/208 "2017-04-07T18:20:22Z")
> [@Bricker](#): > > Yes! > > Yes. Now, what do you imagine “enough” to be? 50% +1, if we are talking strictly laws. The curious thing about that number, is that it is also exactly the number that is needed to confirm judges. 66.666666%+1 if we are talking amendments. I guess I am not sure why judicial activism is such a big deal. It really is just the stuff that you, in your (and the royal you applies) opinion disagree with. It is the stuff that you do not think is a reasonable interpretation of the law. Sometimes this is colored by ideology, sometimes by politics, sometimes by the personality of the judges themselves. It is obvious that they thought it wa a reasonable interpretation, and the fact that you can nearly always find perfectly qualified jurists both on the court and off of it that will agree or disagree with any given ruling means that it’s not just judges making up law out of whole cloth. If the SCOTUS came down with a ruling that had absolutely no precedent, and had no justification, and all the serious legal scholars were left scratching their heads, saying “Where did that come from”, then that would be judicial activism. But as long as it is just a disagreement about how to apply the laws and constitution to the society in which we live, then the political process of selecting justices that will give us the best outcomes, (in our opinion) is absolutly following the rule of law. If we don’t like the outcomes of judicial decisions, we can impress upon our elected representatives to re-write the law to be less ambiguous (for instance, you could re-write chapter VII to add the words “This does not apply to homosexuals, discrimination against them is fine”, and then the intent would be clear. ), you could impress upon them to only confirm judges that will make judgments that you prefer, or you can elect entirely new congress people, who will do these things if your current crop won’t. You complain much that the judges are not elected, in Ohio, we elect our judges. Would you be more inclined to give a judge leeway if they were elected, and had terms of office, and therefore were responsible to the voters? [Previous page](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776.md?page=10)