“Congress passes law to prohibit sexual orientation discrimination in the workplace” is a headline I hope to see in the near future after the United States Supreme Court reverses the reprehensible decision the Second Circuit made last month.
As reported by The New York Times, Donald Zarda, a man who worked for Altitude Express, a skydiving company in New York, was fired in 2010 because of his sexual orientation after he told a female client he was “100 percent gay.” This is unacceptable from any company that values equal opportunity and personal liberty. When he sued, Zarda and his lawyers (and later his executors, as he died in 2014) argued that it was also illegal, claiming that Title VII of the Civil Rights Act protects citizens from workplace discrimination on the basis of sexual orientation.
Title VII states that it is unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges employment, because of such individual’s race, color, religion, sex, or national origin.”
In an en banc decision where all eligible judges on the circuit take part in a decision, as opposed to a three-judge panel, the Second Circuit decided in a 10-3 vote that when Congress wrote “sex” in the above statute, that they must have included sexual orientation as a part of it. This is a big win for gay rights, right?
If you squint and tilt your head just the right way, you can say that sexual orientation is based on sex, so protection is extended to people in workplaces with regard to their sexual preferences. Perhaps you would be inclined to do so because that is how you want things to be, and that would make the world more right. I would be, too. But the job of a judge is not to rule on what is right and wrong, but to resolve conflicts between statutes and clarify what the law is. In this case, the law is clear, and we have to live by it until that law is changed.
The Second Circuit seems to think that people will believe them when they say that the United States Congress in 1964 meant to protect gay people when they passed this law. This same body (342-67 in the House, 85-14 in the Senate) passed the Defense of Marriage Act, signed by Bill Clinton in 1996, to federally define a marriage as a union between one man and one woman.
Ten judges here were willing to sacrifice their duty to uphold the law because they wanted that law to be different. This is judicial activism at its worst. Decisions like this undermine the American system of government. Every few months it seems that a court somewhere is changing the law to suit their preferences, encroaching on the respect for and the power of legislatures to do their job.
This decision looks like a big win on the surface for the LGBT community: LGBT students at universities like NC State and elsewhere would be able to graduate and enter the workplace without feeling that they may have to hide their identity in order to get or keep a job. As beautiful a world as it may feel like this ruling has helped create, we cannot accept this decision.
In a system where laws and judgement are interchangeable, rights and protections are arbitrary. The same discretion that these judges have decided to take in rewriting the law for a good cause could just as easily be used to take away rights that are guaranteed by our laws and constitution. For this reason I cannot support the Second Circuit, despite my support for the end result. The decision is moving us to the right place in the wrong way and that is too big a price to pay.
I hope that the Supreme Court upholds its duty and overturns this decision to bring the system back into balance and that the headline “Big loss for LGBT citizens at the Supreme Court” evokes outrage against an outdated law.
The dissenting opinion of Judge Gerard Lynch speaks volumes and stands as an example that I hope every judge will follow: “Many states have … recognized the injustice of discrimination on the basis of sexual orientation. … They have called such discrimination by its right name, and taken a firm and explicit stand against it. I hope that one day soon Congress will join them, and adopt that principle on a national basis. But it has not done so yet. … I respectfully, and regretfully, dissent.”
So let us pass judgement on the Congress of 1964. They were wrong, they lived in a time where supporting LGBT people was politically and personally unpopular, they were willing to discriminate because they believed differently than people do now. But Congress today does not have to play by the rules of the last century, they are charged to amend the laws as the times change. And change they have.
Let us implore Congress, the Congress of 2018, whose job it is to represent us, to protect a minority that was not afforded the same equality as others more than 50 years ago. If NC State students knock down the doors of their representatives and senators, perhaps North Carolina can be the place where national change starts. By placing our trust in the process, and backing up a system that works, we can all play our part in forming a more perfect union where our rights are protected, and where businesses can’t fire people for being gay.
