Judicial Decisionmaking

The Seventh Circuit in Hively v. Ivy Tech Cmty College of Indiana, No. 15-1720, 2017 U.S. App. LEXIS 5839 (7th Cir. April 4, 2017), now tells us that the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “sexual orientation.”  What is interesting about the decision is not its inevitability in today’s social climate, but the differing views on judicial decision-making espoused by Judge Posner in his concurrence versus Judge Sykes in his dissent.  Judge Posner closes his discussion of activist decision-making,  readily acknowledging that Hively was not what the legislators of the act intended, by stating: “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted.  This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.  We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes.  There are definitely issues that overlap, so if you’re in need of a solid New York Divorce Attorney, call this woman, as she won’t disappoint!