Hively is Wrongly Decided


Judge Wood and Judge Posner of the Seventh Circuit have, in the Hively case, adopted a new paradigm for the interpretation of statutes. The opinion and Posner’s concurrence essentially adopt the idea that a statute must be interpreted today the way it makes the most sense today. In other words, where discrimination on the basis of sex forbids discrimination against women or men, it also forbids discrimination on the basis of sexual orientation.

This interpretation should trouble you. Indeed, that it should even find a small squeaky voice in the federal appellate courts ought to send a cold chill up your spine. Like moral relativity, judicial temporal relativity is a solution in search of a problem. If statutes are out of date, the proper remedy is to get the legislature to fix them. The proper remedy is not, as the Seventh Circuit has done, to invent a new paradigm of judicial interpretation “giving a fresh meaning to a statement … that infuses the statement with vitality and significance today.” (slip op. at 25)

Let’s look at what the good judge says. First, he acknowledges that the meaning of the term on account of sex was understood to mean gender, not sexual orientation:


Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted. But I need to emphasize that this third form of interpretation—call it judicial interpretive updating—presupposes a lengthy interval between enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.

And a little later he says:


Title VII does not mention discrimination on the basis of sexual orientation, and so an explanation is needed for how 53 years later the meaning of the statute has changed and the word “sex” in it now connotes both gender and sexual orientation.

Yes, Judge Posner, please explain this. Because the words used in 1964 had defined meanings and every Congress since then has had the opportunity to amend and change those words, including in 1993 when the Americans With Disabilities Act was passed to update the Civil rights laws. But, no, the good judge impugns Scalia with his pen:


A diehard “originalist” would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute.

But as I noted earlier, statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning. Think for example of Justice Scalia’s decisive fifth vote to hold that burning the American flag as a political protest is protected by the free-speech clause of the First Amendment, provided that it’s your flag and is not burned in circumstances in which the fire might spread. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word “speech” in the amendment embraced flag burning or other nonverbal methods of communicating.


In other words, we’ve gotten away with this in the past, we should get away with legislating from the bench again. If Congress won’t act, we’ll be the conscience of the country. That would be all and good if you were elected and accountable, but you’re not Judge Posner. You’re not!

It may seem like a victory for gay rights to say that sexual orientation is now covered as a basis for sexual discrimination. But what it really means is no one will be free so long as a judge is allowed to take a mulligan on what a statute means “today.” Today homosexuality is tolerated well in society. But what about tomorrow when a right wing religious zealot claims the Oval Office.  Change is one constant in our society.  Requiring changes to come through the traditional method of legislative enactment is sound public policy.

Understand please, I mean and intend no ill will to gays and lesbians by suggesting that this opinion is an abomination and that the judges should self-flagellate, burn their robes and wash their hands with Lysol. Because the issue of homosexuality is a matter of personal choice and personal freedom and people can be who or what they want in this country. No one should be discriminated against because of whom that person chooses to sleep with at night. And, that’s not the point of this missive. The point is, the standard for judicial interpretation of a statute, because the closer we move to that standard for legislative enactments, the closer we come to the possibility of “re-inventing” the Bill of Rights to include or exclude certain long-held and long-established rights.

In the offices of Anytown and Gunsense today, they are leaping up and down cheering this novel approach because it validates one of their primary talking points: the founders could never have anticipated AR-15 assault rifles, therefore ban them and criminalize possession. It’s “common sense gun reform” to “give a fresh new meaning” to infuse the Second Amendment with “vitality and significance today.” You can almost hear all those Washington lawyers now putting pen to paper and making these same arguments.

But, why stop with just the Second Amendment. Maybe the Fifth Amendment needs to be updated. Let’s include not only speech from self-incrimination, let’s include documents you authored as well. And why have that pesky notion of a jury trial. Can’t judges decide quicker and move cases along faster? Yes, we can update and improve efficiency.

If there was ever an opinion written that practically shouts from the rooftops that we need Judge Gorsuch on the SCOTUS bench, this one is it. We cannot allow, under any circumstances, Judge Posner’s temporal judicial relativity (or perhaps his “extreme justice makeover”) to be written indelibly into the law of the land. This madness must be found in its crib and strangled before it emerges with a bludgeon and destroys the foundations of American jurisprudence.

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