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Judicial Magicians on the Seventh Circuit: Hively v. Ivy Tech

Failing to gain enough popular support for its radical social agenda, the progressive Left routinely attempts to skirt the legislative process and implement its policies through judicial fiat. The latest example of this strategy was on display last month in the case of Hively v. Ivy Tech.

Kimberly Hively, an open lesbian and adjunct professor at Ivy Tech Community College in Indiana, repeatedly sought but was denied an opportunity to interview for full-time employment at the college. Naturally, she filed suit, claiming that Ivy Tech discriminated against her based on her sexual orientation.

Undeterred by the fact that federal law does not prohibit sexual orientation discrimination, Hively sued under Title VII, the statute that forbids sex discrimination. The law states in part:

“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

The phrase “sexual orientation” is conspicuously absent from this provision. Nonetheless, Hively insisted that Title VII forbids employers from making decisions based on an employee’s sexual orientation because the term “sex” covers sexual orientation. Nearly a dozen plaintiffs before Hively (and likely dozens more) have made a similar argument in courts across the country, though most judges have found it unconvincing. Hively, however, managed to find a sympathetic ear at the Seventh Circuit Court of Appeals, the highest federal court in the circuit covering Illinois, Indiana, and Wisconsin, and a sister circuit to the much-maligned and regularly overturned Ninth Circuit Court of Appeals.

Dismissing not only the court’s own prior rulings but the rulings of all nine federal circuit courts to consider the matter, a majority of judges on the Seventh Circuit held that Hively could sue for sexual orientation discrimination under Title VII. Like pulling rabbits out of hats, these magicians in judges’ robes conjured up a law that forbids sexual orientation discrimination where a law forbidding only sex discrimination exists. A quick examination of the majority’s argument reveals the deceitful method behind the “magic.”

The Trick

So how does the majority equate sex discrimination with sexual orientation discrimination? Writing for the majority, Chief Judge Diane Wood begins by accepting as true Hively’s allegation that Ivy Tech refused to interview her because she is a homosexual. So far, so good.[1]  Next, however, Wood claims that, had Hively been a man married to a woman rather than a woman married to a woman, Ivy Tech would not have refused to interview her for a promotion. Because Ivy Tech treated a female employee differently from the way it treats male employees, Hively’s case boils down to a classic example of sex-based discrimination. Or so it would seem.

The problem is that the language used in the law is not ambiguous. As dissenting Judge Diane Sykes observes, no reasonable, English-speaking individual could read the law and conclude that it bans discrimination because of sexual orientation. Therefore, the court should not have reached beyond the plain meaning of the language to interpret the statute.

Yet because a plain reading of the law would reach a result that she personally found objectionable, Wood went to create ambiguity where none existed. To mask her dishonest interpretive method, she surreptitiously shifts the audience’s attention from the identity trait at issue (homosexuality) to an activity (intimate association with women).

Pulling Back the Curtain

As any reasonable person in this day and age could tell you, identifying as a homosexual is not the same as intimately associating with a person of the same sex. While one may result in the other, the two are conceptually distinct; an individual may identify as a homosexual—that is, someone who is romantically and sexually attracted to members of the same sex—without being in an actual relationship with a member of the same sex. Moreover, one would imagine that if Ivy Tech did object to hiring or promoting homosexual individuals, it would not matter if that individual was married or dating a same-sex individual; the objectionable trait alone (being gay) would suffice. By shifting focus from sexual orientation to intimate association, Wood is then able to draw a comparison between Hively and a straight, male employee that would lead a less-than-attentive reader to conclude that sex discrimination has taken place.

Leftist judges habitually apply this kind of reasoning in similar cases. Take the case of Barronelle Stutzman, who was sued by a longtime customer when she declined to serve as a florist for his upcoming same-sex wedding, or Aaron and Melissa Klein, owners of Sweet Cakes by Melissa, who incurred the wrath of the Oregon Bureau of Labor and Industries when they declined to bake a custom cake for a gay couple’s wedding ceremony. In both suits, the small business owners did not object to their customers’ homosexuality, but to participating in a ceremony solemnizing an arrangement that offended their personal beliefs.

Yet like the Seventh Circuit in Hively, the Washington Supreme Court and the Oregon Court of Appeals deliberately ignored the difference between the trait and the activity and ruled against the small business owners. These federal judges—each of whom swore to uphold the rule of law—simply decided that their personal views take precedence over a plain reading of the statute. Thanks to their dishonest interpretive methods, small business owners across the country are now forced to choose between their conscience and their livelihood.

Unfortunately, Ivy Tech has announced that it will not appeal, meaning that the Supreme Court will not have an opportunity to correct the Seventh Circuit’s flawed logic in the near future. However, given the existing circuit split and the fact that the notoriously Left-leaning Ninth Circuit has yet to consider the matter, there is still a good chance that the Court will have that opportunity in the years to come.

 

[1] At the dismissal motion stage, the court accepts that the claims brought by the Plaintiff are true to determine whether the Plaintiff has a legitimate legal complaint.


Christina is a freelance legal blogger from the “other” Washington (Washington, D.C.). She received her law degree from American University and her undergraduate degree from the University of Notre Dame.

We Don’t Give Up Our Inalienable Rights When We Go Into Business

Surprisingly – or maybe not – the decision made by the Washington State Supreme Court regarding Arlene’s Flowers last month went widely unreported. Although the Court’s decision was upsetting to religious liberty supporters, the outcome was already expected by most when the Attorney General’s crusade against Barronelle Stutzman was first made public. Washington State has been overstepping its legitimate jurisdiction for years now, and many pro-family advocates already understand that we are fighting an uphill battle. What is amazing, though, isn’t the decision itself, but the arguments I saw on social media in favor of the Court’s decision.

I came across some interesting things when reading through an online comment thread this morning. First, people don’t seem to understand the difference between a privately owned business and a publicly owned business. Their argument falsely assumes that a business operated out of the privacy of a home on a referral basis would have the right to deny service; however, should the entrepreneur choose to open a shop open to the public, the owner’s rights must be jettisoned. But in reality, operating a business that is open to the public does not mean it is a “publicly owned business” or that the business owner’s rights should be subjected to the demands of the mob.

There are several different types of business structures. Sole proprietorship is the most common and refers to a business that is owned (and typically operated) by one person. This person usually sinks everything they own into their business. A proprietor is legally and financially responsible for their business; if, for example, a business is sued, the proprietor’s assets will be used to pay the damages. Another business arrangement is a partnership, in which two or more people enter into a business agreement and still retain full liability. Limited liability companies (LLCs) are structured similarly to a partnership, but such an arrangement provides some protection to the owners against accidents or lawsuits. There are also corporations which act as a separate entity from their owner(s) entirely. All of these businesses are private. The owners retain their rights. A person does not relinquish their fundamental, inalienable, constitutionally-protected rights when he or she enters into business.

The individual then tried to argue that refusing services based on politics is acceptable while refusing business based on conscience is somehow abhorrent. To someone looking at it from an objective, logical standpoint, this assertion makes little sense. Why is discrimination motivated out of political beliefs allowed when discrimination rooted in religious beliefs is not acceptable? If you’re going to decry religious discrimination, then you cannot reasonably support political discrimination.

Perhaps the most erroneous argument I heard on this thread was the claim that there are protected classes of citizens. These protected classes are groups of people who, because of various claims of racism, bigotry, sexism, and homophobia, claim to need additional protections under the law. This does a serious disservice to the LGBTQ community by essentially making them second-class citizens. One commentator refers to this as “the soft bigotry of low expectations,” meaning that some feel these groups need additional protections not afforded to other groups of people because the marginalized groups are helpless without those protections. The progressive Left uses these tactics to create dependence, exacerbating these issues to assemble a larger voting block which allows them to remain in office (and receive a substantial paycheck). In return, they promise to fight for societal validation and respect for those groups. In his dissent over the same-sex marriage decision, Justice Thomas said, “The government cannot bestow dignity, and it cannot take it away.”

Conservatives fight against these special protections because no one’s rights should be placed above those of another. It is man’s nature to have dissenting opinions. Everyone will never agree on everything, and it is not possible to have a society where no one’s feelings are hurt. But thankfully, we do live in a society where everyone is afforded the same rights under the law. Because government cannot protect the feelings of some without violating the rights of others, its role is to protect everyone’s religious liberty, conscience rights, and freedom of speech and association, even for those who the majority finds distasteful or offensive. Perhaps Thomas Jefferson put it best when he said, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”

 

Kyli Erickson is a guest contributor to the FPIW Blog.

How President-Elect Trump Made Progressives Like “Discrimination” Again

What a difference eight years makes.

When President Obama was elected in 2008, he campaigned on the idea that marriage was a relationship between a man and a woman.

His political party was obviously good with that.

When he leaves office tomorrow, most of that same political party believes that people who hold the position he held when he was elected President should lose their businesses for it.

As a result bakers, florists, print shops, pizza shops owners, photographers, graduate students and fire chiefs suffered the wrath of a mob that somewhere along the way decided that tolerance only meant tolerating beliefs you agreed with or understood.

In principle, Americans have long agreed that “tolerance” is a good thing.

But only recently did we decide that “tolerance” required you to support events, messages, and activities you personally opposed.

But then Donald Trump was elected President.

And that changed everything.

To be sure, it’s a dramatic shift in the nature of the leadership coming from Washington, D.C.

But for progressives, it also required a change in their core principles.

For years they told those who didn’t support their view of marriage and sexuality that abstention was a sign of invidious bigotry. But overnight, it became a moral necessity.

Broadway singer Jennifer Holliday (who had performed for four previous Presidents) agreed to sing the national anthem at the inauguration, but she withdrew after receiving an avalanche of ridicule up to and including death threats and calls for her suicide.

Not only were they willing to tolerate people who declined to participate in certain events, they demanded it.

Ms. Holliday had hoped her voice would help bring people together.   But, as she described it, she didn’t realize that, “We’re not doing America right now.”

When Nicole Kidman tweeted that “…we as a country need to support whoever’s the president because that’s what the country is based on,” the mob demanded (and eventually received) an apology.

As if that statement is something requiring an apology.

The designer who declined to design a dress for Melania Trump was applauded instead of picketed.

When members of the Rockette’s objected to leg-kicking for the President-elect, the progressive mob showed no indignation at their obviously discriminatory preferences but defended their right of conscience.

The difference is obvious.

The mob agrees with their convictions and consequently has sympathy for their decision to abstain.

The hypocrisy, however, is equally obvious.

If you believe in freedom only for those who agree with you, you don’t really believe in freedom.

Progressives will attempt to make a distinction between the singers who opted not to sing at the inauguration and the florists who declined to decorate for a same-sex wedding. “Sexual orientation is a protected class,” they insist, “but whatever category you wish to put Donald Trump into is not.”

But that attempt to make a distinction simply ignores the fact that protected class status is a function of a political majority’s preferences.

What if “presidents who wanted to build a wall on the Mexican boarder” were designated as a protected class who could not be discriminated against?

Should that change the rights of singers to decline to be part of the inauguration?

Of course not.

But under their preferred framework, it would.

It has been commonplace throughout history that those in power would use their power to punish their political opponents until such a time as their political opponents figure out a way to wrestle power away from them and then they use that power to exact revenge.

America isn’t supposed to be that way.

Our Constitution and Bill of Rights were created out of recognition that all of us have rights that must be protected even if no one else agrees with us or even likes us.

And no one has the right to make someone else do something they don’t want to do.

Some of us forgot this over the past eight years, but now we have a chance to remember.

We have the opportunity to reestablish the idea that freedom is good even if the way it is used offends you.

The freedom to “discriminate” isn’t always a crisis because one man’s “discrimination” is another man’s right of conscience.

Sometimes we might be the majority.  Sometimes we might not.  But that shouldn’t have any bearing on whether people can be compelled to do things that violate their conscience.

Conservatives have been making this argument for years.  Now that they’ve lost an election, progressives are coming around as well.

If Trump’s election helped bring us together again on this point, perhaps he is making America great again, already.

Responding to the Attorney General

Last week we wrote you about the fact that Attorney General Bob Ferguson is not only suing Arlene’s Flowers because of her decision not to decorate for a same-sex “wedding”, but is going after her personal assets as well.  We are encouraging you to contact Bob Ferguson’s office and also go to the Benton County Superior Courthouse this Friday, December 19th, to show your support for Barronelle Stutzman and conscience rights.

For those of you who did, you likely got a form letter response.  Several people asked how to respond, so below I have made some comments that I hope will help you continue the dialogue with the Attorney General:


Dear Concerned Washington Citizen,

Thank you for your message to Attorney General Bob Ferguson expressing your thoughts about the civil lawsuit our office filed against Arlene’s Flowers for violating the Washington State Consumer Protection Act.  I’ve been asked to respond on his behalf.

The Attorney General must enforce the laws of the state of Washington. Since 1973, the Consumer Protection Act has prohibited all businesses and business owners – regardless of personal religious beliefs –  from discriminating against their customers. In 2006, the Legislature amended the law to include protections against discrimination on the basis of sexual orientation. If a business provides wedding flowers to opposite-sex couples, then it must provide wedding flowers to same-sex couples.

It is true that the Attorney General must enforce the laws of the state of Washington.  It is also true that a law was passed in 2006 which includes protections on the basis of sexual orientation.  The idea that a business must provide flowers to same-sex weddings is simply his opinion.  Arlene’s Flowers has served the gay couple involved in this case and has even employed gay people in the past.  This was not an issue of a business that discriminated against a class of people but instead a decision not to be part of a particular event that was inconsistent with the values of the business. She has, would, and continues to do business with people who identify as gay.  

The Attorney General’s Office first asked Ms. Stutzman, the owner of Arlene’s Flowers, to comply with state law by sending her a letter informing her of the law and asking her to formally agree to no longer discriminate against same-sex couples. Had she signed that agreement, she would not have been subject to any costs or fees. Instead, her lawyer sent us a letter stating Ms. Stutzman would fight any efforts to comply with the long-standing state law.  At that point, we filed a suit asking the court to order Ms. Stutzman to follow the law.

It is true that the Attorney General’s office sent a demand letter telling her to surrender her conscience rights and make a contribution to an organization that she did not philosophically support in order to avoid being sued. But like the lawsuit itself, that was also an act of harassment, bullying, and intimidation unbecoming of a public servant. 

The Attorney General’s position is in direct conflict with Section 11 of the Washington State constitution which guarantees “Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no on shall be molested or disturbed in person or property on account of religion;”   Contrary to the Attorney General’s position, the legislature does not have the authority to repeal sections of the State Constitution that do not comport with their desire to bully the world into being “more tolerant”.

Attorney General Ferguson respects people’s religious beliefs and personal opinions. As an individual, Ms. Stutzman has the right to religious freedom and expression of her beliefs.  However, as a business owner she must follow Washington state law which prohibits discrimination in the marketplace on the basis of sexual orientation-regardless of personal viewpoints.

Either Bob Ferguson is simply being dishonest about respecting religious freedom or he has redefined what religious freedom means. Religious freedom is more than simply the right to have beliefs inside your head.  It includes the right to make decisions in the real world on the basis of those beliefs.  His apparent understanding of religious freedom means that we are free to have our own thoughts as long as we only express them in church or our home. That is the opposite of religious freedom.

Businesses may reserve the right to require shoes or shirts. Similarly, they may refuse to serve someone who is drunk or disorderly. Under Washington state law, however, businesses may not discriminate on the basis of “race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or disability.”  There is no right to discrimination that a business can reserve.

Again, Arlene’s Flowers did not and does not discriminate on the basis of sexual orientation.  They have demonstrated repeatedly that they are happy to serve people in same-sex relationships.  However, there are some events they are not comfortable being part of.  That should be anyone’s right.

Regardless, the letter implies that there is a right to be free from discrimination. While the sentiment is nice, not even Bob Ferguson really believes that.  After all, he allows people to discriminate against the shoeless and shirtless.  

His position is that the non-discrimination statute passed in 2006, repealed the Constitutional rights to the free exercise of religion, association, and the freedom of speech, which includes the right not to speak, if that is your preference.

That is beyond the legislature’s authority.

In this case, the Attorney General is saying that as a condition of being a flower shop that provides flowers for any kind of wedding, he can force you violate your religious beliefs, associate with activities you’d prefer not to associate with, and communicate messages through your work that violate your beliefs.

I hope this information is helpful in explaining why this office filed suit against Ms. Stutzman and Arlene’s Flowers.

This information is helpful is explaining how the Attorney General believes the non-discrimination law from 2006 repealed a host of state and federal Constitutional rights.  But it does not justify his harassment of grandmothers who own small businesses.

 

Ellen M. Austin Hall
Office of Washington State Attorney General Bob Ferguson
800 Fifth Avenue, Suite 2000, Seattle, WA 98104


I hope this helps you work through this letter and maybe even inspires further dialogue with the Attorney General’s office.  Please be persistent.  Be respectful, but be persistent.

Don’t expect to change his mind soon because this lawsuit is about politics.  Deep down, the Attorney General probably even knows he’s being a bully.  Surely there are people in his family who share Barronelle Stutzman’s beliefs that he knows should not lose their home or business because of their beliefs.

But he hopes to be Governor one day and he has political interests he needs to please in order to make that happen. This is the path he has chosen.

For that reason, it is unlikely that he will be persuaded by arguments. But we should stand up for Barronelle because it is the right thing to do.

The permanent solution to this is a critical mass of people rising up to say, “Enough!”.  The legislature could put a stop to this through legislation clarifying that the non-discrimination law does not enable harassment like this.  But they won’t unless good policy also becomes good politics.

Demand better behavior from those we elect.  Remember, silence is consent.

Call the Attorney General at 360-753-6200 and email your legislators and encourage them to protect conscience rights and religious freedom.

Religious Freedom vs. Anti-Discrimination Laws

Last Friday, in the case Kumar v. Gate Gourmetthe Washington State Supreme Court issued a ruling requiring an employer to accommodate the religious dietary requirements of their employees.

While the prospect of Washington State wanting someone to accommodate religious belief is encouraging, it may not be quite what we’re all hoping for.

The lawsuit involved Gate Gourmet, a company that provides food services to airlines. For security reasons, their employees are prohibited from bringing food to work with them and consequently are required to eat the food provided by their employer.

Four of their employees filed a lawsuit claiming that the food they were provided was not consistent with their religious dietary restrictions.  By a 5-4 margin, the court said that Washington’s Law Against Discrimination (WLAD) requires employers to make reasonable accommodations for their employees’ religious practices that include a requirement to serve food that meets their requirements.

While the case deals with religious accommodation, this is not a victory for religious freedom.

Religious freedom is the right of the individual to practice their religion free of government interference, but no one argues that my religious freedom requires you to buy the food for my religiously inspired diet.

Instead, this decision was about the state’s non-discrimination law.  In the end, the Court concluded that the state can tell employers what to feed their employees as a way of eliminating discrimination.

If you are someone who cares about religious freedom, the trend toward stronger anti-discrimination laws is a problem.

Why?

Because non-discrimination laws and the free exercise of religion are in direct conflict with each other.

Non-discrimination laws exist to limit the choices each person has so that no one “discriminates” against anyone else.

In doing so, non-discrimination laws invite the government to be involved in private dealings.

The purpose of the First Amendment, on the other hand, is to stop the government from interfering with how you and I live our faith.

Non-discrimination laws give me the right to force you to do something you otherwise would not do.  It seems reasonable if what you are doing is refusing to open your restaurant to African American’s. After all, it’s so wrong not to.

However, the same tool is being used to force people to be part of gay wedding ceremonies because… it’s so wrong not to.

The challenge with this conversation is how subjective it is.

What one person considers to be a moral necessity another considers to be behavior so uncivil that it shouldn’t be allowed.

Since the prospect of coming to agreement on these issues in the near future doesn’t seem good we’re faced with a question, “should people have the freedom to be rude, even very rude?”

Strong First Amendment rights allow each person to decide for themselves what they can and cannot do as a matter of conscience.

Strong non-discrimination laws allow the government to make those decisions for us.

Which do you prefer?

While the employee’s religion was relevant in the Kumar case, the case did not expand the individual’s right to the free exercise of religion.  To the contrary, it affirmed the government’s role in deciding what each person is required to do so that no other person is “discriminated” against.

The left makes no secret of the fact that they believe non-discrimination laws should trump freedom of religion.

 That is why they support litigation against pharmacies that don’t want to sell abortion drugs, and photographers who don’t want to be part of same-sex “weddings”.

From their perspective, freedom of religion is is not an inalienable right endowed by our Creator but something tolerated (or not) based on the whims of the current political majority.

Of course that’s not religious freedom at all.

Real religious freedom exists when the government removes itself from matters involving conscience, whether public or private. If I am not willing to tolerate you religious convictions, we are not obligated to work together. At least, that is how it used to be.

Until we convince our elected officials that we would rather be free, even if that means someone else has the freedom to do something I don’t like, then we should expect to continue receiving periodic notices about which freedoms we still have and which ones they’ve taken…for our benefit of course.