04/06/2017

A Federal Court Rewrites The Civil Rights Act

David French, National Review

For the sake of social justice, judges decree that ‘sex’ now means sexual orientation.

At what point do we declare that the judiciary is facing a credibility crisis? When do we finally decide that laws passed by Congress have no meaning and that judges are able to rewrite them at will, often using the most laughably specious reasoning?

Yesterday, the Seventh Circuit Court of Appeals unilaterally revised that the Civil Rights Act’s ban on employment discrimination on the basis of “race, color, religion, sex, or national origin” so that it now includes a ban on sexual-orientation discrimination as well. Never mind the actual words on the page. Never mind the common meaning of the words then or now. All that matters is the right result — the triumph of the social-justice “super clause” that is hidden in every law, regulation, or constitutional provision.

The majority option — crafted by Diane Woods — insults our intelligence. She pretends to engage in standard statutory interpretation, attempting to divine what that devilishly complex word “sex” means. Here’s an actual sentence:

It is neither here nor there that the Congress that enacted the Civil Rights Act in 1964 and chose to include sex as a prohibited basis for employment discrimination (no matter why it did so) may not have realized or understood the full scope of the words it chose.

Let’s translate: Congress had no idea that the word “sex” was so darn broad. Fortunately, however, she knows what it truly means. But the opinion moves from comedy to farce when she attempts to “prove” that sexual-orientation discrimination really is sex discrimination by posing a hypothetical: What if the lesbian woman in the case, Kimberly Hiverly, was really a straight man? A lesbian woman loves women. A straight man loves women. Thus (and this is the reasoning, I kid you not), if an employer treats the lesbian differently from the straight man, it has to be because of sex, not sexual orientation. After all, it’s sexist and stereotyping to believe that women shouldn’t love women.

This is pure sophistry. Obviously it would be sex discrimination to treat gay men differently from lesbian women, but when you treat gays and straights differently, that’s sexual-orientation discrimination. This isn’t a hard concept, but the goal isn’t to convince; it’s to rationalize.

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