7th Circuit En Banc Decision in Hively, on Sexual Orientation Discrimination under Title VII, Great Statutory Interpretation Teaching Case

The opinion in Hively is here, Howard rounds up the coverage, and Joshua Matz explains its substantive significance to antidiscrimination law (and why the Court is likely to take the case, and with a new Justice Gorsuch, could well reverse).

But I just wanted to point out that this is an excellent teaching case for a Legislation course. You have a majority opinion by Judge Wood that uses the kind of usual tools of interpretation, an opinion by Judge Posner that is provocative and rejects textualist and purposivist understandings in favor of dynamic statutory interpretation, and a dissent by Judge Sykes buying into textualist/originalist type ideology (and no doubt signalling to the Trump Administration that she’d be a great SCOTUS pick).

Here’s the Posner paragraph that could frame an entire day’s class debate:

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.


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