drwex (drwex) wrote,

Time for some wonky legal and important stuff

Yes, I mean seriously this is important. See my recent post on what I'm prioritizing. This could be a very important moment in securing legal rights for LGB(*) persons as well as a likely important test case I'd expect Justice Gorsuch to hear.

(*) I'm deliberately omitting "T" here because there's a cogent argument, currently being made by Lambda Legal, that this decision does not apply to or protect trans persons. That sucks and will need fixing but the perfect is the enemy of the good and right now this decision looks extremely good for millions of queer persons.

Popehat has an amusing Q-and-A style entry that eventually gets to the important points and is fun to read. They also point to this: http://blog.simplejustice.us/2017/04/05/seventh-circuits-hively-splits-the-circuits/ explainer. Both are worth reading.

tl;dr - a Federal Circuit court has finally held what I and some others argued during the debate over equal marriage: laws blocking same-sex couples from enjoying rights that mixed-sex couples enjoy are sex discrimination, likely illegal, and can be litigated on those grounds. In this case (Hively v. Ivy Tech Community College) the issue was employment/promotion/job opportunity but the core of the case is the same. You cannot deprive a person (in this case a lesbian) of rights on the basis that she engages in same-sex acts that would be unobjectionable if engaged in by mixed-sex couples.

The case turns on interpreting Title VII of the Civil Rights Act of 1964, which prohibits discriminating based on race or sex or religion in employment. If Hively wins this case (which she did at the Circuit level) then she does so based on exactly the grounds that her expressed behavior (having a same-sex partner) cannot be disadvantaged. That makes LGB persons a protected class and affords them a lot more rights and protections than they've had.

Since the law was passed in 1964, and in the past has not been interpreted in this way, it's incumbent on the Court to explain why it ruled as it did. The Court ruled en banc meaning all the judges were involved and en banc proceedings are the way to go if you're going to overturn existing precedent. Which they did. So that's very good and yay more rights for more people. I am happy about this and I hope more judges will be willing to see things in this light - discrimination on the basis of expressed orientation behavior is sex discrimination and illegal.

As Popehat then explains, the decision is doubly significant because the judges of the 7th Circuit laid out their case for why the 1964 law needs to be reinterpreted in light of our modern understanding. I'm not always a fan of Judge Posner's rulings, but in this case I think he's on the right side of law and history. In particular, I think this decision is written with an eye toward eventual SCOTUS review. Although it looks like Ivy Tech is not going to appeal, there are other cases that will likely cause SCOTUS to take up this issue.

What makes that especially significant is that the late Justice Scalia was notorious as an originalist which, if I may be pejorative for a moment, means he would rule by interpreting things as he thought they would have been interpreted at the time of writing. EG the Constitution is not a living document except where expressly amended and a 1964 law that didn't explicitly protect LGB persons could not later be interpreted to say that. Congress would need to amend it, in order to satisfy Scalia.

Drumph promised to nominate a Supreme Court justice to take Scalia's role, which brings us to Gorsuch. I am pleased that the Dems are willing to show some spine on his nomination but I think it's ultimately going to be problematic and won't stop him being confirmed. I believe that he'll hear the arguments on this (or similar) case when it reaches SCOTUS and we'll get to see exactly how Scalia-like he is.

Cross-posted from Dreamwidth, at http://drwex.dreamwidth.org/946890.html. You can comment here or there.
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