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.”
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. 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.
 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.