Court takes giant step, perhaps, on gay rights

The Observer editorial board

Kimberly Hively said she was fired from an Indiana college because she is gay.
Kimberly Hively said she was fired from an Indiana college because she is gay. AP

As North Carolina legislators grasp for ways to allow continued discrimination against gays, a federal appeals court in Chicago last week changed everything with a landmark gay rights ruling.

The 7th U.S. Circuit Court of Appeals in Chicago ruled 8-3 that the Civil Rights Act of 1964 prohibits discrimination for sexual orientation in the workplace and housing. It is the highest court ever to say that people cannot be fired or denied housing for being gay.

The opinion applies only in Illinois, Indiana and Wisconsin now. But it could prove to be the first giant step toward eradicating such legal discrimination of gays nationwide. As has happened before in American history, the courts may drag the country to the right place before lawmakers have the courage to do so themselves.

Tuesday’s decision conflicts with one just weeks earlier from the 11th Circuit in Atlanta. That two federal appeals courts have taken opposite stances on a crucial question heightens the chance that the U.S. Supreme Court will ultimately decide.

The 7th Circuit’s ruling was also notable because it was heard by the entire court, not just a three-judge panel, and five of the eight judges in the majority were Republican appointees. That includes Judge Frank Easterbrook, a well-known conservative, and Richard Posner, one of the leading conservative legal scholars of the 20th century. Basic human rights, it turns out, are becoming a nonpartisan cause.

Should the Supreme Court hear the case, the decision will likely come down to one man: Justice Anthony Kennedy, who frequently sides with the conservative justices but also has been a crucial vote for gay rights, including marriage equality. The bipartisan nature of last week’s appeals court ruling is some comfort for gay-rights advocates trying to predict which way Kennedy might go.

The case was sparked by Kimberly Hively, who contended she was passed over for promotions and ultimately fired from Ivy Tech Community College in Indiana because she is a lesbian. The court declared that Title VII of the Civil Rights Act forbids that because it bans discrimination based on sex, among other things. The court said that term includes sexual orientation, even if Congress wasn’t thinking that when it passed the law in 1964.

The court gave several reasons why that is so, but they center on the idea that gay people don’t conform to gender stereotypes, and the Supreme Court held in 1989 that sex discrimination includes discriminating against people because they don’t conform to their gender’s stereotypes.

Charlotte’s ordinance and North Carolina’s HB2 concerned treatment of gays in places of public accommodation such as hotels and restaurants. They left the fight over workplace discrimination for another day. The Hively case does the opposite: It applies to jobs and housing, but even if the Supreme Court agrees, it would not by itself apply to public accommodations.

Last month’s HB2 repeal deal blocked N.C. cities from protecting gays until at least the end of 2020. Meanwhile, the march toward justice continues elsewhere, including with an unmistakable gavel slamming down in a courtroom in Chicago.