by Steve Sanders, Associate Professor of Law, Maurer School of Law, and affiliated faculty in political science, Indiana University Bloomington
Going back at least to 1977, majorities of Americans have agreed that gays and lesbians “should … have equal rights in terms of job opportunities.” The number hit 89 percent in 2004. Gallup apparently stopped asking the question in 2008, perhaps because the social consensus was so overwhelming that there was nothing useful to be learned from further polling.
If American government operated the way civics books tell us it does, Congress, acting on such an overwhelming public preference, would long ago have enacted federal legislation outlawing employment discrimination against gays and lesbians.
But Congress does not work this way. Constituent preferences do not always get translated into policy. For example, Congress has shown a longstanding and “persistent bias against constituent will on LGB rights,” and “Republicans consistently oppose” such rights “regardless of constituent preferences.” Legislators also know most people don’t pay much attention (except in the most extraordinary situations, such as Ryan/Trumpcare) to what Congress does or does not do. And as Ilya Somin has been documenting for years, too many Americans are ignorant about politics and public affairs.
It is against this backdrop that we should consider the Seventh Circuit’s path breaking en banc decision in Hively v. Ivy Tech Community College. In Hively the Seventh Circuit became the first federal circuit court to squarely hold that sexual orientation discrimination is a form of sex discrimination, and thus outlawed by Title VII of the Civil Rights Act of 1964. Not only is Hively a great set of opinions for teaching statutory interpretation, as Rick Hasen suggests, it also affords us the opportunity to think about the role of courts in a time of congressional gridlock, right-wing ideological extremism, and inability to translate public preferences into policy.
The majority opinion by Judge Diane Wood relies on the gender non-conformity line of cases, most importantly Price Waterhouse v. Hopkins. The logic is: 1) Congress outlawed discrimination because of sex; 2) the Supreme Court in Price Waterhouse said that sex discrimination includes gender stereotypes; and 3) Ivy Tech’s alleged view that women shouldn’t be lesbians is a gender stereotype. Kimberly Hively’s employer allegedly took adverse action against her because she is romantically and sexually attracted to women rather than men. Therefore, this is discrimination because of sex.
An objection to this reasoning is that it avoids candidly discussing the cause of anti-gay discrimination: attitudes of heterosupremacy and homophobia, which are related to, but different from, sexism. Instead, the gender-stereotyping argument attacks the problem through logical bootstrapping of concepts and definitions. Nonetheless, Hively relies on accepted methods of statutory interpretation, and it commanded the votes of an ideologically and intellectually diverse group of judges on a respected circuit. That is something for progressives to cheer.
Judge Richard Posner’s concurrence seeks to augment the theoretical basis for the majority’s decision, embracing what has been called “dynamic statutory interpretation” -- the principle that judicial interpretation can give “fresh meaning” to a statutory statement (such as, in this case, prohibition of discrimination because of “sex”) in a way that “infuses the statement with vitality and significance today…. A statute when passed has an understood meaning: it takes years, often many years, for a shift in the political and cultural climate to change the understanding of the statute.”
The primary objection to Hively will come from conservatives protesting that Title VII, when passed in 1964, could not have been understood to reach sexual orientation. (Originalists like Josh Blackman already have reacted to Posner’s opinion with horror.) And so we come to the dissent in Hively by Judge Diane Sykes.
Judge Sykes frames her dissent in an earnest and unoriginal originalism. It could have been taken straight from the PowerPoints at a Federalist Society symposium for 1Ls. It is pure Justice Scalia, but without the offensive bombast.
The meaning of a statute, according to Judge Sykes, is frozen in time, confined to its “original public meaning.” A statute can only be interpreted “as a reasonable person would have understood it when it was adopted.” Courts “are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.” If Kimberly Hively “was denied a job because of her sexual orientation, she was treated unjustly,” but her arguments about this “must be addressed to Congress,” not the courts.
I don’t wish to belittle the serious arguments Judge Sykes makes on the question of statutory interpretation. But the problem with the tell-it-to-Congress mantra of originalists is that it assumes an idealized, Schoolhouse Rock understanding of how Congress works. Judge Sykes acknowledges that support for protecting gays and lesbians from discrimination “has a strong foothold in current popular opinion.” Thus, “[t]his striking cultural change informs a case for legislative change,” Judge Sykes tells us, and “might eventually persuade the people’s representatives to amend the statute to implement a new public policy.”
As if that’s comforting. Or even anchored in reality.
In fact, popular opinion has supported the idea of equal job opportunities for gays and lesbians for at least 40 years. And the argument for a federal non-discrimination law has been made in Congress since 1974, and almost continuously since 1994. For all the reasons I described at the outset of this essay, Congress still has not acted. What should we make of that fact? Originalists certainly have no answer.
Last semester, a very smart student in a seminar I taught on the role of courts in a democracy, Matthew Snodgrass, wrote a paper on Hively which argued that federal courts are justified in applying less cautious principles of statutory interpretation during times of congressional gridlock, especially when the outcome is not inconsistent with clear public preferences. The paper has influenced my own thinking.
To be sure, the argument is subject to caveats and objections. Judges are appointed to interpret law, not vindicate majority preferences. At a time when the federal courts may again turn more conservative due to Trump appointments, progressives too have much to worry about if judges abuse their power to reinterpret statutes. And the safety valve in a more expansive understanding of statutory interpretation is the principle that Congress can override what it believes to be an erroneous interpretation by the courts. Yet gridlock puts that assumption in doubt.
Still, the suggestion that theories of statutory interpretation and separation of powers should take account of Congress’ dysfunction and incompetence is worthy of serious discussion. By and large, scholarship about the institutional failings of Congress and how well (or poorly) public preferences are translated into policy are the province of political scientists, not law professors. (Some legal commentators – examples here and here, have begun to explore aspects of this problem.) It’s time for that to change.
Law frets constantly about the proper role of judges in a democracy. But, like Judge Sykes in her dissent, that conversation usually assumes the existence of a functional legislative branch that behaves in a responsive and reasonable manner and is capable of living up to its responsibilities as a co-equal branch of government. On questions of LGBT rights, those premises haven’t been true for decades. And right now, the whole set of assumptions is essentially a legal fiction.