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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.

Religious Liberty: The Kleins’ Battle is Our Battle

The freedom to discern right from wrong is among the most fundamental of human rights. It is so central to our being that it is a defining aspect of human nature itself. If we have no conscience, or no freedom to express our conscience, then we are denied part of our humanity.

Freedom of conscience was on trial on Thursday before the Oregon Court of Appeals. Aaron and Melissa Klein and their business, Sweet Cakes by Melissa, are currently the subject of a major religious freedom lawsuit. The Kleins lost their bakery and were fined $135,000 for declining to create a custom-made wedding cake for a same-sex marriage. Also of note, the Kleins were given a gag order by the Oregon Bureau of Labor and Industries, preventing them from speaking publicly about the details of the case or their religious beliefs.

This comes on the heels of Richland, WA, florist Barronelle Stutzman losing her case in the Washington State Supreme Court (Stutzman was sued by Washington State Attorney General Bob Ferguson after she declined to provide a same-sex wedding). These cases, and the many like them currently being litigated around the country, are not about homosexuality or Christianity. What is at stake is the fundamental liberty and natural right of each of us as American citizens to live our lives according to our sincerely-held beliefs.

For small business owners everywhere, many state governments, including Washington and Oregon, are making their position clear: deny your own conscience or give up your business, have your savings accounts emptied, and possibly spend time in jail.

Canadian philosopher Stefan Molyneux explains the issue well: “If you have no freedom of conscience, you have no freedom at all. Conscience must be inviolate. It’s the essence of who we are.”

Likewise, “When people can force you to go against what your conscience dictates, they own you more deeply than any slave master,” Molyneux said on his Freedomain Radio show.

You may not personally know Aaron and Mellissa Klein, Barronelle Stutzman, Donald and Evelyn Knapp, or Cynthia and Robert Gifford, but these people represent the First Amendment of the United States Constitution. Their battle is our battle. If they continue losing in court, the government will have the unchecked power to strong-arm individuals of any race, religion or creed into violating their conscience. It is my hope that every individual, Christian and Atheist, liberal and conservative, Democrat and Republican, straight and gay, will reject that dastardly kind of totalitarianism.

 

James Silberman is a guest contributor to the FPIW Blog. He is a pro-life activist from Gig Harbor, WA, and a student at Whitworth University.

FPIW Joins Effort to Encourage Trump to Protect Religious Freedom

FPIW has joined with dozens of pro-family organizations asking President Trump “to swiftly sign a broad religious freedom Executive Order protecting the right of all Americans to freely live out their faith.”

In a letter to President Trump, Vice President Pence, Speaker Ryan, and Majority Leader McConnell, the organizations call on the new presidential administration and Congress to reverse President Obama’s attacks on religious freedom and enact strong protections for the sacred right.

The letter evokes many high profile religious liberty cases of the last eight years, including Hobby Lobby, Little Sisters of the Poor, Illinois Catholic Charities, and Sweet Cakes by Melissa:

“Under his ‘hallmark achievement’ (Obamacare) alone, the Obama Administration attempted to: force Christian family-owned businesses like Hobby Lobby to pay for drugs and devices that can cause early abortions, force Christian charities like the Little Sisters of the Poor to include those same drugs in their healthcare plans, and contravene longstanding federal policy protecting Americans from being forced to fund abortions against their religious beliefs. …

“Families in our states have felt the impact of the disregard and disdain for religious freedom from the federal level. Frequently, state non-discrimination laws have been used as a weapon to punish people of faith and prevent them from earning a living— unless they comport their businesses in the image of the government’s viewpoints. The Kleins in Oregon are a tragic example—Melissa Klein lost her bakery business and was forced to pay a fine of over $100,000 simply because as a family-owned business operated in accordance with the Kleins’ deeply held beliefs, they disagreed with using Melissa’s cake-decorating talents to participate in a same-sex wedding. Illinois Catholic Charities—an organization that partnered with government to serve the state’s poor and neglected children for over 40 years—was forced to shut down rather than comply with the government’s rule requiring them to abandon the core convictions that motivated their charity in the first place.”

It also details the Obama Administration’s attempts to limit religious liberty to a more restricted “freedom to worship”:

“The Administration unsuccessfully argued that the First Amendment does not exempt churches from employment discrimination laws, even when hiring their own pastors and teachers. Ironically, in the name of ‘preventing discrimination,’ President Obama issued an Executive Order in 2014 that discriminates against faith-based entities by preventing them from contracting with their own government unless they forfeit their religious beliefs about human sex and sexuality. One final example is the Obama Administration’s regular use of the term ‘freedom of worship’ instead of ‘freedom of religion’—implying a deep misunderstanding about the depth of First Amendment protections. We are guaranteed the right to freely live out our faith in all aspects of life—not just the freedom to worship our God within the four walls of our church or home.”

The letter concludes by asking President Trump to sign an executive order protecting religious liberty, much like the proposed executive order that was leaked earlier this month:

“A broad religious freedom Executive Order affirming that persons and organizations do not forfeit their religious freedom when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with local, state, or federal governments is an excellent and vital first step to truly make religious freedom great again. Congress should follow your lead to pass strong religious freedom protections into law.”

Click here to read the letter in its entirety.

Write to President Trump and ask him to sign the executive order: https://www.whitehouse.gov/contact#page.