The 8-3 ruling is unprecedented in a federal appeals court and conflicts with other courts, possibly setting up a Supreme Court hearing.
The appeals court ruled on the case of Kimberly Hively, a teacher at Ivy Tech Community College in South Bend, Indiana. She charged that the school denied her a full-time job after she was seen kissing her then-girlfriend in the school’s parking lot.
The school denied discriminating against the teacher, saying that its policies specifically bar discrimination on the basis of sexual orientation. That factual question is distinct from the question over the interpretation of the law, the Associated Press says.
The 1964 law bars discrimination in employment on the basis of sex. Other courts have said Congress meant the word to refer to whether a worker was male or female and held it was erroneous to claim the legal meaning of the word “sex” included sexual orientation.
Chief Judge Diane Wood, writing the majority decision, said the case was “no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing.”
“The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man),” she said.
Judge Diane Sykes, writing in the dissent, said the ruling imparted “a new or unconventional meaning” to the text of the law, arguing the court is not authorized to update the text to respond to “changed social, economic, or political conditions.”
Campbell sided with the dissent, saying that the court “rewrote the statute to mean something that neither the original understanding nor the text of the statute supports.”
He said the judicial branch “rewrote a federal statute to accomplish something that Congress never intended.”
The law cited in the decision, the 1964 Civil Rights Act’s Title VII, does have an exception for some religious organizations, limiting the impact of the court’s decision.
Campbell said employers who perform secular work will rarely have a religious belief that “precludes them from employing someone who is in a same-sex relationship or is experiencing same-sex attraction.”
“But in limited circumstances, that might happen, and the religious freedom of those employers will be adversely affected,” he added.
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He suggested that religious employers not protected by religious exemptions should make a distinction between discriminating against gays and lesbians “because of their status as such.” They could still implement codes of conduct against certain behaviors, which should not be unlawful.
Even these distinctions might not be sustainable under law.
“Unfortunately, however, the U.S. Supreme Court so far has been unwilling to distinguish between status and conduct in the context of sexual orientation.”
Other regulatory forces already appear to share the assumption of the Seventh Circuit.
Under the Obama administration, the Equal Employment Opportunity Commission held “sex stereotypes” like “the belief that men should only date women or that women should only marry men” constitute illegal discrimination on the basis of sex.