# 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:** 7
**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, 3:48pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/121 "2017-04-06T15:48:44Z")
> [@Johnny\_Bravo](#): > > 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. I didn’t obscure anything. I directly described voter suppression as the “ill of decreasing voter engagement.” I described the whole thing as a “fantasy scenario.” I did so because I couldn’t think of any real-world scenario in which I’d support voter suppression. You’re ignoring what I say to make it sound bad; please don’t do that. ---
**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, 3:49pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/122 "2017-04-06T15:49:52Z")
> [@Bricker](#): > > 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. This ruling is based on a law, not on an amendment. All it would take is for the legislature to add the words (does not apply to homosexuals) to the law that they wrote, and that would override the court’s decision. Just as you pointed out in the hobby lobby case that the legislature could amend the RFRA to specifically not include for-profit companies (a proposition I find hard to believe the writers of the RFRA had in mind at the time), Tittle VII could be re-written to specifically exclude sexual orientation. ---
**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, 3:57pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/123 "2017-04-06T15:57:38Z")
> [@Left\_Hand\_of\_Dorkness](#): > > I did so because I couldn’t think of any real-world scenario in which I’d support voter suppression. I suppose I misunderstood your “fantasy scenario” as an extreme hypothetical meant to easily prove a broader point. I’m sorry if I misrepresented you. I agree with you that there are zero real-world scenarios in which a democratic society benefits from voter suppression. ---
**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, 3:59pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/124 "2017-04-06T15:59:57Z")
> [@Bricker](#): > > 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: This goes back to what’s probably the biggest question in the entire Constitution: what does the Ninth Amendment mean? The only objective fact about the Ninth Amendment is that it’s there in the Constitution. After that, it’s arguments all the way down. The first argument is whether the Ninth Amendment has any meaning. It seems like it must but maybe it’s just a vestigial amendment; the legal equivalent of wisdom teeth. The Ninth Amendment could be like the Third Amendment; a section of the Constitution which has no application in modern law but which nobody has bothered to eliminate. It’s there but it has no effect. But I think most people agree the Ninth Amendment has a meaning so the argument is over what that meaning is. Some feel it’s a support to other sections of the Constitution but that seems redundant; other sections stand on their own authority. I feel the Ninth Amendment has an independent meaning; it says something which is not said elsewhere in the Constitution. So what’s it saying? Like generations of judges, I concede I’m not sure. Other amendments speak; the Ninth just whispers. You have to lean in and listen really hard and even then you can’t be sure the Ninth Amendment really said something and you didn’t just imagine it. And judges have done that, even if they often don’t admit they’re making a Ninth Amendment decision. A judge who invokes the Right to Contract or the Right to Privacy is essentially invoking the Ninth Amendment. ---
**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 6, 2017, 4:03pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/125 "2017-04-06T16:03:29Z")
> [@Bricker](#): > > 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. You’re doing what you often accuse others, conflating the outcome and the reasoning. What I’m trying to get to is your seeming ability to say two apparently contrary things (that the opinion is somehow both “unsupportable” and an "updating [of] old statutes {which is a bad thing}) yet also a "“a pure question of statutory interpretation and thus well within the judiciary’s competence”). Either the judiciary should have the power to interpret the statute or not. Also, you constantly bemoan cases like this as being judicial activism (hate that word, if you have another, feel free to use it), yet saying, were you a judge, you would do the same thing. Hows that work in your head? Is your judicial philosphy about the role judges play simply a handy thing to throw around on a message board, but in real life you wouldn’t actually live by it? This isn’t a case where higher court precedent clearly requires the outcome the court came to, so I don’t buy the whole “I’m bound to reach that outcome, even though it’s completely wrong” thing you’re trying to peddle. You can certainly disagree with the majority opinion, adopt the textualist approach of the concurrence, and come to the correct decision. But I don’t see how you can do both that, and insist that it’s absolutely wrong for the court to have done it. ---
**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, 4:06pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/126 "2017-04-06T16:06:28Z")
> [@Martin\_Hyde](#): > > 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. It’s obviously great that it happened but I have a hard time saying that legislation passed immediately after a civil war and with a bunch of states under military rule as a win for the democratic process. ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [April 6, 2017, 4:32pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/127 "2017-04-06T16:32:58Z")
> [@k9bfriender](#): > > This ruling is based on a law, not on an amendment. > > All it would take is for the legislature to add the words (does not apply to homosexuals) to the law that they wrote, and that would override the court’s decision. > > Just as you pointed out in the hobby lobby case that the legislature could amend the RFRA to specifically not include for-profit companies (a proposition I find hard to believe the writers of the RFRA had in mind at the time), Tittle VII could be re-written to specifically exclude sexual orientation. The whole purpose of writing laws down is so the people can know what the rules are. If you say x is legal until the legislature changes it that it understandable. If you say x is legal until some judges decide it is not and if the legislature wants to it can make it legal again, then the people have no way to know what is legal or not. It is possible to read laws but not possible to read what is in judges heads. The principle of knowing what the law is goes back to Hammurabbi. It just shows how true the saying is that you don’t have to scratch a liberal very hard to find a totalitarian. ---
**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 6, 2017, 4:38pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/128 "2017-04-06T16:38:11Z")
> [@puddleglum](#): > > The whole purpose of writing laws down is so the people can know what the rules are. And the law says you can’t discriminate on the basis of sex. What is disrimination on the “basis of sex” has to be interpreted, and, as our amazing system of government requires, that interpretation is done by all the branches of government with a system of checks and balances. It is completely within the power, rightfully so, for the judicicary to determine that discrimination based on sex and sexual attraction is, indeed, discrimination on the basis of sex. This is our governemnt working as it was intended. ---
**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, 4:47pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/129 "2017-04-06T16:47:54Z")
> [@puddleglum](#): > > The whole purpose of writing laws down is so the people can know what the rules are. If you say x is legal until the legislature changes it that it understandable. If you say x is legal until some judges decide it is not and if the legislature wants to it can make it legal again, then the people have no way to know what is legal or not. Are you somehow under the impression that our legal code is simple and requires no interpretation? There is case law and precedent to go on. Very occasionally, there will be a ruling that does break new ground, but it is not made of whole cloth, and it is a reasonable interpretation of the law and is usually not unexpected. > [@](#): > > It is possible to read laws but not possible to read what is in judges heads. The principle of knowing what the law is goes back to Hammurabbi. So Hammurabi had no judges? Is the code of Hammurabi the pinnacle of civilizing code of conduct to you? > [@](#): > > It just shows how true the saying is that you don’t have to scratch a liberal very hard to find a totalitarian. I assume by that statement you are obliquely calling me a totalitarian. I assure you, by your statement, you have no idea what a totalitarian is. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 6, 2017, 4:57pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/130 "2017-04-06T16:57:58Z")
> [@Bone](#): > > This isn’t an argument and isn’t even a fair summary. Dial back the hostility. > > [/moderating] You are correct, I should have added a paragraph to clarify the argument I was making, instead of simply implying it : Decisions that advance human rights, such as this one, are generally correct, irrespective of petty concerns and accusations of judicial activism. To call them incorrect simply because of concerns that the court went a half-step too far is to suborn a fundamental injustice that our society cannot and will not tolerate. Decisions like these are the ONLY way some injustices are rectified. Brown v. Board of Education is the clear example. ---
**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, 4:59pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/131 "2017-04-06T16:59:51Z")
> [@Hamlet](#): > > You can certainly disagree with the majority opinion, adopt the textualist approach of the concurrence, and come to the correct decision. But I don’t see how you can do both that, and insist that it’s absolutely wrong for the court to have done it. The court’s opinion enshrines both the reasoning and the result. Why can’t I say that I don’t adopt the reasoning and don’t want subsequent cases to use it, but I have my own reasoning which I believe is correct and which reaches the same result? ---
**Author:** ![Beren\_Erchamion](https://avatars.discourse-cdn.com/v4/letter/b/90ced4/32.png) [@Beren\_Erchamion](https://boards.straightdope.com/u/Beren_Erchamion)\ **Post date:** [April 6, 2017, 5:02pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/132 "2017-04-06T17:02:45Z")
> [@k9bfriender](#): > > Are you somehow under the impression that our legal code is simple and requires no interpretation? More likely they’re under a broader misconception of what language is and how it operates. ---
**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, 5:03pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/133 "2017-04-06T17:03:22Z")
> [@CandidGamera](#): > > You are correct, I should have added a paragraph to clarify the argument I was making, instead of simply implying it : > > Decisions that advance human rights, such as this one, are generally correct, irrespective of petty concerns and accusations of judicial activism. To call them incorrect simply because of concerns that the court went a half-step too far is to suborn a fundamental injustice that our society cannot and will not tolerate. Decisions like these are the ONLY way some injustices are rectified. Brown v. Board of Education is the clear example. Who gets to decide? Imagine I say the Fourteenth Amendment forbids all abortion, because it denies the unborn child his right to life without due process of law. And I say that it advances human rights, must notably the unborn human who’s been saved. If I can get five SCOTUS judges to agree, what say you? ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 6, 2017, 5:14pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/134 "2017-04-06T17:14:18Z")
> [@Bricker](#): > > Who gets to decide? > > Imagine I say the Fourteenth Amendment forbids all abortion, because it denies the unborn child his right to life without due process of law. And I say that it advances human rights, must notably the unborn human who’s been saved. > > If I can get five SCOTUS judges to agree, what say you? Prior to birth, a fetus is not a child. It cannot suffer injustices. It is not a participant in our society. It does not have rights. It isn’t even sentient. However, the mother IS such a participant. Hers are the human rights at issue. But even if you have five delusional justices willing to call the fetus a ‘child’ and say it can suffer injustices, they would be obligated to weigh the rights of the ‘child’ against the rights of the mother. And if they found in the 14th Amendment an absolute prohibition against abortion, they should be forced to attend remedial health classes, because they’re ignoring both the facts AND the law, and submitting only to religious ideology, which has no place in a courtroom. ---
**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 6, 2017, 5:17pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/135 "2017-04-06T17:17:56Z")
> [@Bricker](#): > > The court’s opinion enshrines both the reasoning and the result. Why can’t I say that I don’t adopt the reasoning and don’t want subsequent cases to use it, but I have my own reasoning which I believe is correct and which reaches the same result? You can. What you can’t (or should I say shouldn’t) do is say that you would concur in the result, and then bemoan the result as being judicial activism or of over-reaching by the judiciary. ---
**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, 5:25pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/136 "2017-04-06T17:25:22Z")
> [@Bricker](#): > > Who gets to decide? > > Imagine I say the Fourteenth Amendment forbids all abortion, because it denies the unborn child his right to life without due process of law. And I say that it advances human rights, must notably the unborn human who’s been saved. > > If I can get five SCOTUS judges to agree, what say you? Personally, I would love this ruling. I mean, it would suck for women, it would suck for men, it would scuk for society and the country, but it would also finally end the religious push on the republican party. It wouldn’t last long, as the party that put the ideologues on the court that redefined a fetus as a person would not last long. It would not take long before a vacancy opened up, and a justice who does not make his rulings based on his religion is nominated and confirmed by the more or less unobstructed party, and that decision is quickly overturned. While they are at it, they can also define a person as an actual living entity, and get rid of this silly “corporations are people” bull. So, that ruling would get you maybe half a decade or so of oppressing women, but in the end, I think that, after given a very direct example of what sort of world the religious right is trying to bring about, it will be soundly rejected, just as it was a couple generations ago, and just as we will probably have to do again in a generation or two. ---
**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, 5:38pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/137 "2017-04-06T17:38:45Z")
> [@CandidGamera](#): > > Prior to birth, a fetus is not a child. It cannot suffer injustices. It is not a participant in our society. It does not have rights. It isn’t even sentient. However, the mother IS such a participant. Hers are the human rights at issue. > > But even if you have five delusional justices willing to call the fetus a ‘child’ and say it can suffer injustices, they would be obligated to weigh the rights of the ‘child’ against the rights of the mother. And if they found in the 14th Amendment an absolute prohibition against abortion, they should be forced to attend remedial health classes, because they’re ignoring both the facts AND the law, and submitting only to religious ideology, which has no place in a courtroom. It sounds like YOU get to decide. I don’t like that system. ---
**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, 5:39pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/138 "2017-04-06T17:39:53Z")
> [@Hamlet](#): > > You can. What you can’t (or should I say shouldn’t) do is say that you would concur in the result, and then bemoan the result as being judicial activism or of over-reaching by the judiciary. I bemoaned the reasoning, and the fact that the reasoning is circuit precedent now. ---
**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, 5:45pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/139 "2017-04-06T17:45:42Z")
> [@k9bfriender](#): > > While they are at it, they can also define a person as an actual living entity, and get rid of this silly “corporations are people” bull. That’s Congress: 1 USC § 1: > [@](#): > > the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; Not judges. Congress. > [@](#): > > So, that ruling would get you maybe half a decade or so of oppressing women, but in the end, I think that, after given a very direct example of what sort of world the religious right is trying to bring about, it will be soundly rejected, just as it was a couple generations ago, and just as we will probably have to do again in a generation or two. It was “soundly rejected” by judges in Roe v Wade. Not elected legislators. ---
**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, 5:46pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/140 "2017-04-06T17:46:38Z")
> [@Hamlet](#): > > You can. What you can’t (or should I say shouldn’t) do is say that you would concur in the result, and then bemoan the result as being judicial activism or of over-reaching by the judiciary. Well, yes he can because he feels the reasoning reflects an over-reach and regardless of the result, the court’s reasoning can be used in future cases. Imagine I say “As I am sole and complete arbiter of what is allowed in my living room, I’ll watch whatever TV show I like”. If you agree that I can watch whatever I like, does that mean all future living room decisions should be judged under this guidance? [Previous page](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776.md?page=6) [Next page](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776.md?page=8)