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Brian Mark Weber / Apr. 7, 2017

The Seventh Circuit's Open Activism

Does sex discrimination law really apply to sexual orientation?

All eyes were on the Senate this week as Democrats and Republicans engaged in a battle over whether to confirm Neil Gorsuch as the next justice of the Supreme Court. Already, Republicans have invoked the so-called “nuclear option,” a rules change that allows them to confirm Gorsuch with a simple majority vote rather than face an unprecedented partisan filibuster from Democrats. It’s worth noting that Democrats started us down this road in 2003, when they filibustered Miguel Estrada, George W. Bush’s nominee to the influential DC Circuit, long a stepping stone to the Supreme Court. Then they nuked it in 2013, leaving the filibuster for only the Supreme Court.

Democrats aren’t opposed to Neil Gorsuch because of their feigned ideological concerns, or because he’ll restore balance to the court, or because he’s not Supreme Court material. Rather, they fear Gorsuch doesn’t accept the judicial dogma of all true progressives: that the Constitution is a “living document” to be interpreted so broadly that it basically means whatever progressives want it to mean.

The problem with progressive justices today is not that they merely exaggerate the concept of a “living Constitution” or even that they’re allowing leftist ideology to determine their interpretation of law (although both of these are certainly part of the problem). It’s that judges responsible for ensuring the integrity of the judicial system do everything they can to circumvent the system, all in the name of social justice and progressivism. The real concern is that they view the courts as a vehicle to deliver their agenda rather than as a component of constitutional government.

In the progressive mind, the only thing that matters is the long-term objective. As National Review’s David French writes, “Never mind the actual words on the page. Never mind the common meaning of the words then or now. All that matters is the right result — the triumph of the social-justice ‘super clause’ that is hidden in every law, regulation, or constitutional provision.”

Hardly a week goes by without a new case popping up in which leftist judges have twisted the intent of constitutional law in order to serve a progressive end. This week, the Seventh Circuit of the U.S. Court of Appeals (which covers Indiana, Illinois and Wisconsin) ruled in Hively v. Ivy Tech Community College that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, also covers sexual orientation.

Let’s take a look at just one of the arguments made by the concurring judges: “The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose ‘interpretation’ of the word ‘sex’ in Title VII to embrace homosexuality: an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt.”

Now that’s a bold statement revealing the true intent of these judicial demagogues. And they actually have the audacity to spell it out in the ruling.

Members of the Rainbow Mafia may be celebrating this ruling, but they had better think twice about what this precedent might do to our system of government in the coming years. Whether one believes that sexual orientation should be a protected class, in the end turning the courts into a quasi-legislature will ultimately undermine all of us. The Founding Fathers certainly didn’t want to empower the judicial branch with legislative powers, but that’s where we’re heading.

Writing for the Washington Examiner, Joseph Murray asserts, “Few would argue that it is just for an employer to discriminate on the basis of sexual orientation. It is why many states have passed civil rights laws prohibiting such discrimination. But what happened in a federal court in Chicago on Tuesday is not about protecting the LGBT community. Instead, the Seventh Circuit has used the LGBT community as a conduit to further distance the federal judiciary from the checks and balances that once contained it.”

Sensing the non-activist jurisprudence of Judge Neil Gorsuch, Democrats who previously recognized the nominee’s qualifications have now threatened to undermine his candidacy by attacking his character and professionalism. Remember, the Senate unanimously confirmed Gorsuch to the Court of Appeals in 2006. Now Senate Democrats think he’s an imminent threat to the Constitution.

Progressives have issues with Gorsuch because his views on the purpose and function of the Supreme Court are too close to that of the Founding Fathers. In other words, Gorsuch believes the Constitution’s provisions should not be re-interpreted to mean what we think they should mean for the convenience of political expediency, but rather what the Founders intended them to mean.

People in a free society change their views on a wide range of issues over time, but our Founders gave us various mechanisms to respond to contemporary mores and morals such as amending the Constitution. But for progressives, constitutionalism and the separation of powers are serious roadblocks to the enactment of their sweeping agenda.

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