Activist Court Breaches Its Constitutional Role

In April, the U.S. Seventh Circuit Court of Appeals became the latest court to usurp the authority of Congress to make new law.

Finding in favor of a lesbian who claimed she was denied full-time employment by a community college, the court ruled that in Title VII of the 1964 Civil Rights Act, the prohibition of discrimination on the basis of “race, color, religion, sex or national origin” also includes sexual orientation.

The 1964 law does not mention sexual orientation, and Congress has never changed the law to include it. But increasingly, liberal judges feel free to change laws to suit their own beliefs.

In a frank admission of the court’s thinking, Judge Richard Posner wrote: “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. … We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.”

Evangelical observers have noted that advocates of abortion, homosexuality and the removal of religion from public life realize that their objectives can be achieved more easily through liberal judges than through convincing the public and elected representatives to change laws.

Because other circuit courts have ruled differently than the Seventh Circuit in similar cases, it is likely that the issue will eventually be decided by the Supreme Court.