In the summer of 2015, same-sex couples celebrated a civil rights victory following the Supreme Court’s monumental decision in Obergefell v. Hodges. The Court recognized same-sex couples have the constitutional right to marriage, protected by the Due Process and Equal Protection Clauses. While the right to marriage was immediate, this decision did not mark the end of discrimination based on sexual orientation. Rather, the holding created a “legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

The potential for employment discrimination on the basis of sexual orientation hinges on the unsettled Title VII provisions in the 1964 Civil Rights Act meant to shield employees from unlawful employment practices. The provision prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

In 2017, the Seventh Circuit decided the paradoxical issue of whether sexual orientation is included as a protected Title VII category in Hively v. Ivy Tech. There, the court held that “discrimination on the basis of sexual orientation is a form of discrimination.” The opinion sparked debate because the court’s holding addressed an ambiguous issue that was neither addressed by the text of the statute nor corrected by the legislature after enactment. However, this post focuses on the constitutionality of the decision, namely the clash between the court’s role as a faithful agent of the legislature juxtaposed with the danger of unelected officials making rulings on far-reaching legal matters.

The perplexing issue is that both the majority and dissent are correct in a sense. The Hively majority arrives at the correct outcome by protecting same-sex couples from discrimination, but the dissent provides an astute statutory and constitutional analytical framework. Specifically, the dissent notes:

When a statute supplies the rule of decision, our role is to give effect to the enacted text, interpreting the statutory language as a reasonable person would have understood it at the time of enactment. We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.

Mindful of the dangers associated with judicial activism, the dissent likely drew analysis from Article I of the U.S. Constitution: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The text is clear that Congress has the unequivocal and exclusive right to legislate. Since enacting the statute, Congress has yet to amend Title VII to specifically include employment protections for individuals in same-sex relationships.

However, the matter is not so easily settled. The U.S. Constitution also declares that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.” Congress had decades to clarify their legislation but failed to do so. Instead, the answer is provided by Supreme Court precedent. The Supreme Court was explicit that federal courts are authorized and obligated to interpret Title VII relief for plaintiff justice:

The purpose of Title VII is to make persons whole for injuries suffered on account of unlawful employment discrimination. This is shown by the very fact that Congress took care to arm the courts with full equitable powers. For it is the historical purpose of equity to secure complete justice. Where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.

Failure to exercise judicial authority in the present case is not adherence to separation of powers, it is an abandonment of constitutional obligations. The Seventh Circuit could only fulfill its constitutional obligation to properly interpret Title VII by protecting individuals in same-sex relationships from employment discrimination.

In the spring of 2019, the Supreme Court heard oral arguments on this matter, and unlike Hively v. Ivy Tech, the Supreme Court’s 2020 decision will settle the matter. As the nation holds its breath in anticipation, I sincerely hope the Court considers its constitutional grant of power to decide this question in favor of greater protection from discrimination. Failure to protect people from employment discrimination due to their sexual orientation will send a disheartening message to all people who love across genders. They will witness an impotent judiciary, they will never be made whole, and they will forever live in fear knowing there are no repercussions for same-sex discrimination.