In an opinion concurring with the majority, Judge Richard Posner wrote that changing norms call for a change in interpretation of the Civil Rights Act, which bars discrimination based on race, color, religion, national origin or sex.
"I don't see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she's a woman," wrote the judge, who was appointed by Republican Ronald Reagan.
Debate in the Hively case revolved around the meaning of the word 'sex' in Title VII, the section of the law that deals with discrimination. Other courts have concluded that Congress meant for the word to refer only to whether a worker was male or female. They said that it would be wrong to stretch the meaning of 'sex' in the statute to include sexual orientation.UPDATE: By coincidence, newspapers today carry the obituary of the famed lawyer William Coleman, whose work included arguing before the U.S. Supreme Court to uphold an IRS rule that denied tax-exempt status to Bob Jones University (alma mater of our governor) because it discriminated against black people.
The majority of the 7th Circuit sided with a broader meaning.
"Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII's prohibition against sex discrimination ...," Judge Diane Wood, a President Bill Clinton appointee, wrote for the majority.
The plaintiffs argued that their segregation policies were based on biblical injunctions against the mixing of races.See the parallel with the Arkansas fight to preserve discrimination against gay people?
Mr. Coleman would have none of it. “Their argument is that because their racism is religiously based, they have a right to tax benefits denied to all others who cannot defend their policies on religious grounds,” he told the court. “When fundamental public policy is violated, a defense of religious belief is not available.”
The court affirmed his position on May 25, 1983, with an 8-1 decision written by Chief Justice Warren E. Burger. Justice William H. Rehnquist, later the chief justice, was the lone dissenter.