By William C. Duncan

The U.S. Court of Appeals for the Seventh Circuit has just decided that it is not necessary for Congress to enact a federal statute prohibiting discrimination against gay and lesbian persons, since that same result could be more easily achieved through judicial rulings.

The majority opinion engaged in some creative logical gymnastics to decide that when the 1964 Civil Rights Act prohibited sex discrimination, it also gave employees the ability to sue over alleged sexual orientation discrimination.

More candid, or brazen, was the admission of one of the judges who concurred in the majority’s result but would have more forthrightly explained why:

I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.

It’s a timely admission, given that newly confirmed Supreme Court Justice Neil Gorsuch has championed precisely the opposite approach to judging: “it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”

The drawbacks of the Seventh Circuit approach are obvious. When the government acts to prevent discrimination, it must carefully balance varying interests to ensure true equality among all who might be affected by the legal change. Utah’s Legislature had to do this in 2015 and came up with a carefully negotiated bill that provided protection from discrimination while ensuring no one would be punished for exercising religious liberty.

That was a good solution, but one that could not have emerged in the zero-sum arena of litigation, which is aimed at designating a winner and a loser. A court mandate cannot effectively take into consideration practical questions and protect the rights of others who are not parties to the case. The legislature can.

Perhaps now, with Justice Gorsuch aboard, the Supreme Court will take the opportunity to correct the “enlightened interpretation” approach of the Seventh Circuit’s decision in favor of the more modest, and constitutionally compelled, approach to the judge’s role – to apply the law, not rewrite it.


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