# 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:** 20\ **Page:** 6
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 6, 2017, 1:57pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/101 "2017-04-06T13:57:54Z")
> [@Bricker](#): > > That’s fine, too. > > But then I’d suggest your arguments simply reduce to, “This is what I think the best outcome is,” in all cases. If Voter ID, for example, consistently produced an elected legislature that enacted your preferred policies, then you’d favor it? Voter ID has effects of its own. Having folks be engaged with the political process is itself a good end, and decreasing voter engagement is, absent other factors, a bad thing. In a fantasy scenario where the best way to decrease American adventurism in foreign policy that kills a lot of innocent people were to require voter IDs, the good of requiring them would outweigh the ill of decreasing voter engagement. ---
**Author:** ![Johnny\_Bravo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_bravo/32/493_2.png) [@Johnny\_Bravo](https://boards.straightdope.com/u/Johnny_Bravo)\ **Post date:** [April 6, 2017, 2:10pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/102 "2017-04-06T14:10:00Z")
> [@Left\_Hand\_of\_Dorkness](#): > > In a fantasy scenario where the best way to decrease American adventurism in foreign policy that kills a lot of innocent people were to require voter IDs, the good of requiring them would outweigh the ill of decreasing voter engagement. So one of those “less freedom for the greater good” situations. You’re basically saying that it’s okay for a government to become more oppressive so long as it’s only “those people” who are being oppressed. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 6, 2017, 2:15pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/103 "2017-04-06T14:15:58Z")
> [@Johnny\_Bravo](#): > > So one of those “less freedom for the greater good” situations. > > You’re basically saying that it’s okay for a government to become more oppressive so long as it’s only “those people” who are being oppressed. That’s not remotely what I’m saying, but thanks for checking. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2017, 2:20pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/104 "2017-04-06T14:20:31Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Voter ID has effects of its own. And I’m arguing that results-based support of the process has effects all its own. Poor ones. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 6, 2017, 2:28pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/105 "2017-04-06T14:28:35Z")
Are there historical examples of support for judges emphasizing an expansive view of rights that you think I’ll consider to be poor results, such that I’ll stop supporting that approach? Or are those poor results theoretical? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [April 6, 2017, 2:29pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/106 "2017-04-06T14:29:57Z")
> [@Bricker](#): > > You should be aware that what “you think,” is of little persuasive value to me. Can you give us a moment to recover from our astonishment? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [April 6, 2017, 2:30pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/107 "2017-04-06T14:30:01Z")
> [@CandidGamera](#): > > Basically, Bricker believes that oppressed minorities should continue to be treated as sub-human until they can individually persuade enough people to vote for enough candidates that support treating them well that the laws can be changed. This isn’t an argument and isn’t even a fair summary. Dial back the hostility. [/moderating] ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2017, 2:42pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/108 "2017-04-06T14:42:18Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Are there historical examples of support for judges emphasizing an expansive view of rights that you think I’ll consider to be poor results, such that I’ll stop supporting that approach? Or are those poor results theoretical? May I answer that question in four years, following four years of Trump judicial appointments unconstrained by filibusters? Or if you prefer, I’ll sweep you back to New York, c. 1900. New York had enacted a law that bakery employee hours must be limited to ten hours per day and no more than 60 hours per week, progressive work week legislation for its time. But when Joseph Lochner, the owner of Lochner’s Home Bakery in Utica, was fined under the law for permitting an employee to work longer hours, he sued. He said that New York’s law was unconstitutional under the Fourteenth Amendment, because it interfered with the “right to contract.” That is, he claimed a constitutional right for his baker and he to agree to a longer workweek, and the New York law impermissibly limited that right. Now, as you know, there’s no such wording in the Fourteenth Amendment as the “right to contract.” But the Supreme Court found the right there anyway. The Due Process Clause means, they said, both _procedural_ process and _substantive due process_. And within the substantive due process guarantee, they recognized a freedom for bakers to reach their own agreements: > [@](#): > > There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is a contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2017, 2:45pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/109 "2017-04-06T14:45:40Z")
> [@Hamlet](#): > > My reading of those statements, as well as other ones you made about the opinion somehow being a violation of “representative democracy”, led me to conclude that you thought this opinion was unwarranted and an usurptation of legislative power, rather than it being"… a pure question of statutory interpretation and thus well within the judiciary’s competence." Did I misinterpret your position? Yes. I think the opinion’s reasoning is unsupportable, but if I were on the bench I’d have written to concur in the result. ---
**Author:** ![Johnny\_Bravo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_bravo/32/493_2.png) [@Johnny\_Bravo](https://boards.straightdope.com/u/Johnny_Bravo)\ **Post date:** [April 6, 2017, 2:46pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/110 "2017-04-06T14:46:56Z")
> [@Left\_Hand\_of\_Dorkness](#): > > That’s not remotely what I’m saying, but thanks for checking. Well then help me out. You’re saying that a hypothetical voter ID law meant to suppress votes in such a way that we got more representatives with your (and my) point of view would be a net gain. That yes, voter disengagement is bad, but worth it if it means congressional action that aligns with your foreign policy goals. Yes? No? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [April 6, 2017, 2:56pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/111 "2017-04-06T14:56:08Z")
Watch out, Dorkie! Its a trap! ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [April 6, 2017, 2:58pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/112 "2017-04-06T14:58:43Z")
> [@Johnny\_Bravo](#): > > So one of those “less freedom for the greater good” situations. > > You’re basically saying that it’s okay for a government to become more oppressive so long as it’s only “those people” who are being oppressed. > [@Left\_Hand\_of\_Dorkness](#): > > That’s not remotely what I’m saying, but thanks for checking. Not even a little remotely? > [@Left\_Hand\_of\_Dorkness](#): > > Yes, I’ll be happy to have my desired direction furthered, and my undesired direction thwarted. I have very little faith in “we the people,” as that’s the group that approved slavery, and that’s the group that approved Jim Crow, and that’s the group that approved all sorts of horrors in our history. > > I don’t wish ill on people who vote for oppressive policies. I just wish powerlessness for them in this particular area. (Underline added) ---
**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 6, 2017, 3:07pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/113 "2017-04-06T15:07:28Z")
> [@Bricker](#): > > Sure! But the living select new legislators every two years. I don’t mind at all when the legislators use technological and social contexts to craft changed laws. That’s exactly their role. > > What you’re saying is that sometimes they don’t pick the social contexts you want. And judges do. > > But, if that should change, you’re happy to have the legislators do the changing and the judges that thwart your desired direction stifled. Your view is not so much “We, The People,” as it is “We, the Enlightened People that Agree With Me.” I am not sure why it cannot be the other way around. You say that it is not the correct way around for the judiciary branch of the government to interpret laws in ways that the writers of those laws may not have intended. It seems to me that the best way to go about addressing issues before the court is to make the best judgement possible, on the merits of the case, on arguments put forth, on case law and precedent, AND on the outcome that is created by the decision. Just as you feel that if a law needs to be changed or updated, it should go through the legislature, I contend that if a law needs to be reaffirmed in light of a court ruling, it should then need to go through legislature. So, if a judge decides that some words written down 50 years ago by people who are no longer alive mean something that may not have occurred to the original writers (or even would have been abhorrent to the writers, given the culture of the time), then that new reading of the law should stand just fine. If the legislature doesn’t like it, they can pass a more specific law. If the people don’t like it, they can vote for legislatures that will pass a more specific law. As said upthread, Justice delayed is justice denied. If we wait for legislatures to get anything done moving forward on civil rights or equality, we will all be waiting and waiting in vain. The courts do move more quickly in most cases for the advancement of social progress. The legislature is still the check against the courts. They can always pass a new law, or in the case of a constitutional interpretation, they can pass an amendment, to make the intended effects of the legislation, representing the will of the people, more clear. If it is the will of the people that the law be interpreted in a more discriminatory way, then congress can make that explicit when it makes a law. They could add in “does not apply to homosexuals” wherever they want to, if that is their wish. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [April 6, 2017, 3:10pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/114 "2017-04-06T15:10:55Z")
For the record, I think the majority opinion is persuasive. I appreciate the way the salient points were framed, isolating Hively’s actions and only switching gender as a way to bring her claim under the umbrella of Title VII. The passage from Scalia writing in Oncale was particularly apt: > [@](#): > > But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our > laws rather than the principal concerns of our legislators by which we are governed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2017, 3:18pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/115 "2017-04-06T15:18:23Z")
> [@k9bfriender](#): > > As said upthread, Justice delayed is justice denied. If we wait for legislatures to get anything done moving forward on civil rights or equality, we will all be waiting and waiting in vain. The courts do move more quickly in most cases for the advancement of social progress. My objection is that legislators are the ones in a representative democracy that are easily replaced by the people. A ruling of constitutional dimension is fixable by amendment, yes, but that changes the requirement from a majority to a super-majority. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 6, 2017, 3:30pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/116 "2017-04-06T15:30:27Z")
> [@Johnny\_Bravo](#): > > Well then help me out. > > You’re saying that a hypothetical voter ID law meant to suppress votes in such a way that we got more representatives with your (and my) point of view would be a net gain. That yes, voter disengagement is bad, but worth it if it means congressional action that aligns with your foreign policy goals. > > Yes? No? Voter disengagement is bad. Killing lots of innocent people is a helluva lot worse. You choose to obscure the second part of that moral calculus by callling it “foreign policy goals,” rather than "mass killing of innocent people. A government that refrains from killing innocent people is becoming less oppressive, not more oppressive; a government that reduces voter rights is becoming more oppressive, not less oppressive. A government that does the latter in order to do the former is becoming less, not more, oppressive. Thus the problem in your phrasing. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 6, 2017, 3:33pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/117 "2017-04-06T15:33:23Z")
> [@Bricker](#): > > It’s dramatically different. > > Because those situations (the presence of gay people) existed in the past, but were ignored - they weren’t covered by the law, but they existed. Congress knew what they were approving, and they knew they were not approving a rule protecting gays as a Title VII class. > > The distinction is between applying old law to new factual situations, and applying old law to old situations in a new way, simply because many people now think we should. I’ve heard this argument before but I feel it’s wrong. The argument essentially boils down to saying that we should not only use the core principles established by older generations but adopt their passing opinions as well. I don’t think that’s a good idea and what’s more I don’t think that’s what those older generations wanted or intended. Look at the eighth amendment, which prohibits cruel and unusual punishments. That prohibition is the core principle and that is enduring. But the consensus on what punishments are cruel and/or unusual is going to change. People of 2017 should not set their standard for cruelty based on what people in 1789 regarded as cruel; the people of 2017 should live by the standards of 2017. And the people of 1789 expected that; they wanted future generations to apply the law based on the circumstances of the future. If they had wanted us to live under their beliefs, they would have put those beliefs into the Constitution. But they deliberately chose not to. Instead they said “Here are the core principles. But apply them by your own standards.” ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [April 6, 2017, 3:41pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/118 "2017-04-06T15:41:31Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Yes, I’ll be happy to have my desired direction furthered, and my undesired direction thwarted. I have very little faith in “we the people,” as that’s the group that approved slavery, and that’s the group that approved Jim Crow, and that’s the group that approved all sorts of horrors in our history. > > I don’t wish ill on people who vote for oppressive policies. I just wish powerlessness for them in this particular area. FWIW both Jim Crow and slavery were ultimately done in via the democratic process involving legislation. The Civil Rights legislation under LBJ for example, and the 13th Amendment at the end of the Civil War. The way in which the opinions of the living trumps those of the dead is the living get to vote representatives in to office and the dead to not (at least not anymore, thankfully); it’s not a good system of government if judges can just change settled law in contravention of the legislation simply because “dead people wrote this.” That being said, my view is a good practice of judicial review is to look first at the textual interpretation. I actually believe the text of a law should trump its intention, and basically it does. That’s how we have what are colloquially called “legal loopholes”, when legislators create legal text that, unwittingly, can cause situations they didn’t anticipate. But not every case before the law can easily be settled on textual grounds, so then I do think you should factor in legislative intent, but it should just be one factor of many. Judicial precedent is also a good thing to factor in. And yes, you also need to factor in current circumstances; a true slavery to original intent would basically require a finding that large swathes of the law don’t apply to things unforeseen when the law was written. It’s silly but you could make a strong “absolutist originalism” argument that the fourth amendment shouldn’t apply to electronic devices and few legal scholars would agree with that. At the end of the day, when trying to reconcile new situations to old law, judges sometimes rule in ways that if you polled the people who wrote a law from the 1960s, would not have agreed with, but to me that isn’t an immediate problem. With this ruling I do think there’s an argument that it goes against judicial precedent, which is problematic, but the judicial precedent on this aspect of civil rights law has been contradictory and confusing for a long time. I actually think, without even getting into original intent or any of the rest of it, there’s actually a textual argument that the law already cover LGB people just as it is largely seen to already cover trans people. It’s just a new textual interpretation that hadn’t been previously accepted, but I think there’s a decent textual argument that the law _as written_ probably always should’ve protected sexual orientation, and the only reason it didn’t is judges back when it were written were people who grew up believing homosexuality was deviant criminal behavior, so unsurprisingly no judges ruled that way at the time. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [April 6, 2017, 3:42pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/119 "2017-04-06T15:42:45Z")
> [@Little\_Nemo](#): > > Instead they said “Here are the core principles. But apply them by your own standards.” Where did they say that? ---
**Author:** ![Johnny\_Bravo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_bravo/32/493_2.png) [@Johnny\_Bravo](https://boards.straightdope.com/u/Johnny_Bravo)\ **Post date:** [April 6, 2017, 3:46pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/120 "2017-04-06T15:46:07Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Voter disengagement is bad. Killing lots of innocent people is a helluva lot worse. You choose to obscure the second part of that moral calculus by callling it “foreign policy goals,” rather than "mass killing of innocent people. I chose to word it neutrally because you chose to obscure your belief (voter suppression is worthwhile if it aligns with your goals) with an issue that has moral certainty (innocent people should not be killed). But the folks who have been gerrymandering our states for the last 20 years feel pretty strongly about their own moral certainties. Abortions are murder. The 2nd amendment is sacrosanct. Democratic policies will destroy America. Or: voter disengagement is bad. Killing lots of innocent babies is worse. [Previous page](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776.md?page=5) [Next page](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776.md?page=7)