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Fr. Mark Hodges

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Huge LGBT victory: Federal court rules gay rights are civil rights, discrimination is illegal

Fr. Mark Hodges

CHICAGO, Illinois, April 5, 2017 (LifeSiteNews) — A federal appeals court ruled Tuesday that Title VII of the 1964 Civil Rights Act, which bans discrimination on the basis of race, color, religion, sex, and national origin, also covers homosexuality.

The U.S. Court of Appeals for the 7th Circuit, which handles cases in Indiana, Illinois, and Wisconsin, decided 8-3 that discrimination on the basis of "sex" also means discrimination on the basis of "sexual orientation."  

The ruling is significant because it recognizes special protections for LGBTQ status in existing law, making gay activists’ attempts to create LGBTQ anti-discrimination laws unnecessary.

Progressives hailed the ruling. Vox called it "the biggest pro-gay rights legal decision since the Supreme Court ruled in favor of marriage equality." Lambda Legal, which handled the case, said, “This decision is game-changer."

"It’s the first federal appeals court decision to rule that anti-gay discrimination is banned under existing federal law," Vox's David McNew reported. "What activists want to do is expand the existing civil rights protections to also protect LGBTQ people."

Scott Shackford of Reason.com said, "Suddenly, without passing any new laws, we have a new protected class under federal law."

Indeed, if the decision is allowed to stand, it would essentially add LGBTQ protections to existing laws. Discrimination on the basis of "sexual orientation" — an undefined phrase that could potentially be expanded to mean any number of sexual preferences — counts as discrimination on the basis of being male or female.

"This is something that will roll out coast to coast, we think," predicted attorney Greg Nevins of Lambda Legal, the nation’s largest pro-gay bank of attorneys.

In its ruling, the appellate court explained, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results.”

Opponents say the Civil Rights Act of 1964 meant "gender," as in male and female, when it outlawed discrimination based on "sex," and did not speak to any variant sexual practice. They argue that the court-referenced "confusing and contradictory results" have come with more recent court decisions infusing transgender issues into the law.

The implications are indeed far reaching for this interpretation of the word "sex" in American law.  

The fact that historically the word was used by legislators and legally understood by justices to refer to male and female is not disputed. But with more than 50 separate gender identities now being infused into American business and education, gay activists say that "what the original laws’ authors believed or intended is irrelevant."

The court admitted that its decision was based not on the intent of the 1964 Civil Rights Act but on recent U.S. Supreme Court decisions.

"In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades," decision author Judge Diane Wood explained. "We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination."

The case focused on Title VII of the Civil Rights Act, which deals with workplace discrimination. But many courts have ruled that Title IX, which deals with schools, should be interpreted the same way.

In other words, if upheld by the Supreme Court, the decision would create explicit protections for homosexuals in employment, housing, and education, regardless of a business owner’s, landlord's, or school’s sincerely held beliefs.

The specific case involves a lesbian suing Ivy Tech Community College in Indiana because she was not hired by the school. Plaintiff Kimberly Hively argued her case based on the Title VII section of the 1964 Civil Rights Act. But "sexual orientation" is not in Title VII and so lower courts all ruled against her. Now the 7th Circuit Court of Appeals, in full session, ruled in her favor, allowing her case to go forward.

In justifying the ruling, Judge Wood acknowledged, "For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person's sexual orientation." This essentially admits that Title VII does not, in fact, include what we now call "sexual orientation."

But Wood then says the issue is unresolved because of an “absence” of a Supreme Court decision on the matter. "The Supreme Court, however, has never spoken to that question," Wood wrote.

Three judges dissented, including Judge Diane Sykes, who explained that the decision not only has no basis in the 1964 civil rights law but goes against legal precedent as to how that law has always been interpreted.

"What justification is offered for this radical change in a well-established, uniform interpretation of an important — indeed, transformational — statute?" Judge Sykes asked. "My colleagues take note of the Supreme Court's 'absence from the debate.'"

"What debate? There is no debate," Justice Sykes pointed out. "Our long-standing interpretation of Title VII is not an outlier. From the statute's inception to the present day, the appellate courts have unanimously and repeatedly read the statute the same way, as my colleagues must and do acknowledge."

CNN reported that the case seems certain to go to the Supreme Court.  

"Federal anti-discrimination laws were always going to be the next battleground after the Supreme Court's gay marriage decision," said CNN legal analyst Steve Vladeck. "These laws are even more important because they also apply to private parties — such as employers."

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