Jim Dey: Supreme Court's refusal to hear case leaves lower courts at odds

Jim Dey: Supreme Court's refusal to hear case leaves lower courts at odds

It is ordinarily not big news when the nation's or the states' highest courts decline a request to review the decisions of lower courts. They do it hundreds of times a year. In fact, supreme courts reject far more requests to review cases than they accept.

But that was not the case Monday when the U.S. Supreme Court declined to accept a case out of Georgia that not only raises a controversial legal issue but has been the subject of conflicting rulings among the nation's federal appeals courts.

The high court declined to accept a case that would require it to decide whether federal law written to protect women from discrimination — aka sex discrimination — should be extended to protect individuals based not on their sex, but on their sexual preferences.

The high court, without explanation, rejected a request to review the claim of former hospital security guard Jameka Evans, who alleges she was forced out of her job because she is a lesbian.

The 11th Circuit Court of Appeals, based in Atlanta, rejected her sex-discrimination claim by a 2-1 vote, although it authorized Evans to rewrite another discrimination claim — sexual stereotyping — to see if it passes legal muster in the trial court.

The Atlanta court's decision conflicts with a decision earlier this year by the 7th Circuit Court of Appeals in Chicago. The 8-3 en banc ruling — one reversing a decision by a three-judge panel of the same court — held that discrimination on the basis of sex also prohibits discrimination on the basis of sexual preference.

Justice Diane Wood said the 7th Circuit's decision was a "pure question of statutory interpretation."

But Justice Jose Martinez said repeated rulings in the 11th Circuit have interpreted the statute to protect against discrimination on the basis of sex, but not of sexual preference.

"Sexual-orientation discrimination is not actionable under" federal law, he said.

It's the job of the U.S. Supreme Court to settle disputes of that nature, establishing a national standard when appellate judges in the various circuits disagree.

That it did not do so in this case surprised some court watchers. But the rulings in Chicago and Atlanta had some procedural oddities that persuaded the justices that the time is not quite ripe to decide the issue.

The Chicago appeals court ruled that Karan Hively, a part-time teacher at Indiana's Ivy Tech Community College, could sue her employer on the basis of her claim that it did not hire her for full-time work because she is a lesbian.

Ivy Tech vehemently rejects her allegation. But it chose not to appeal the decision to the U.S. Supreme Court to settle the "sexual preference" claim, choosing instead to defend itself in a trial on the merits of Hively's claim.

In the Atlanta case, the hospital where Evans worked was not party to the litigation because Evans, who filed her litigation pro se, did not properly serve it with legal notice. The hospital indicated it would not participate in any Supreme Court litigation.

"Evans and her lawyers responded that the hospital's lack of participation should not thwart Supreme Court review, but the justices may have opted for the issue to come to them again in a case with fewer complications," wrote Amy Howe for the legal website scotusblog.com.

The Chicago appeals court decision expanding discrimination on the basis of sex to prohibit discrimination on the basis of sexual preference marked the first time any court has ruled that a 1964 civil-rights law protects homosexual employees from job discrimination.

But the issue is percolating in other circuits, including New York-based 12th Circuit.

In that case, an en banc panel, meaning justices representing the full circuit rather than a regular three-judge panel, is hearing the case of a homosexual sky-diving instructor who alleged that he was fired because of his sexual preference.

The instructor died in a 2014 parachuting accident, but his family members have continued to pursue claims on his behalf.

The issue is less one of statutory interpretation than how judges with different philosophies view the court's role in interpreting law as written by the legislature.

Speaking for the more traditional view that judges should enforce the law as written, 11th Circuit Justice William Pryor wrote, "Because Congress has not made sexual orientation a protected class, the appropriate venue for pressing the argument ... is before Congress, not this court. ... If the law is wrong, it ought to be changed; but the power for that is not with us."

Sharply disagreeing with Pryor's view is former 7th Circuit Justice Richard Posner, who wrote in the Hively case that courts are free to rewrite law as they see fit so it embraces a more modern social view, even if that view is at odds with statutory language.

Corrupt Illinois meets corrupt Massachusetts

Boston Globe columnist Kevin Cullen recently wrote about the corruption indictment of former Massachusetts state Sen. Brian Joyce.

Cullen related a delightful anecdote about the state legislator he described as so corrupt that he would "steal a hot stove and come back for the smoke":

When officials from a solar company came to him for some help on a bill and permitting issues, Joyce shook them down, demanding to do the legal work on all their Massachusetts projects.

The company's lobbyist was mortified, and when they left Joyce's office, he apologized to the company's officials for exposing them to such a shamelessly corrupt pol.

"Don't worry about it," one of the officials replied. "I come from Chicago."

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-3513-5369.