Second Circuit Perpetuates Confusion

Late last month, the U.S. Second Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964 bans discrimination based upon sexual orientation.

In Zarda v. Altitude Express, the plaintiff—a skydiver who disclosed his homosexuality to a customer—was terminated from his position. The plaintiff claimed discrimination and sued in federal court, but his case was dismissed by a trial court judge. The dismissal of the case was upheld by a panel of the Second Circuit; however, the case was later reconsidered by all of the judges of the Second Circuit. On February 26, 2018, in a 10-3 decision, the court ruled that a claim of discrimination based upon sexual orientation could be made based on the Title VII ban on sex discrimination.

There are two major problems with the court’s decision in Zarda. First, Title VII says absolutely nothing about discrimination based upon sexual orientation. Rather than dismissing the plaintiff’s case, however, the court engaged in creative judicial reinterpretation to reach its desired result. Sadly, this is not the first time that an American court has reinterpreted a law to make it match the judges’ ideology. Each time that an American court does this, the integrity of the judicial system is damaged. Judges who wish to make the law instead of interpreting it should resign from the bench and seek office as legislators.

Second, even if the Second Circuit had the authority to ban workplace discrimination based upon sexual orientation (which the State of New York did 15 years ago), such bans are problematic. In many workplaces, the sexual orientation of an employee is irrelevant to that employee’s job; however, in some limited circumstances, an employee’s sexual orientation or behavior could be problematic for that person’s employer. At New Yorkers for Constitutional Freedoms, we believe that it is best for government to stay out of the issue of sexual orientation and let employers and employees handle it on their own. Furthermore, laws banning discrimination based upon sexual orientation have been used to erode the religious freedom of persons who conscientiously object to participation in same-sex ceremonies.

At this time, it is not clear whether the case will be appealed to the Supreme Court of the United States.