WASHINGTON—There's so much happening under the radar these days that I'm afraid we're going to have a massive example of what air traffic controllers call "an aluminum shower" of issues one of these mornings. For example, on Tuesday, the U.S. Court of Appeals for the Seventh Circuit decided to give Vice President Mike Pence's basic governing philosophy a nice little kick in the head. From the NYT:

In the decision on Tuesday, the judges ruled by an 8-to-3 vote that the civil rights law, which already prohibits discrimination on a variety of factors, also includes protections based on sexual orientation. They concluded that such discrimination was no different from a form of sex discrimination, which the law prohibits. Five of the eight judges in the majority were appointed by Republican presidents. The case stems from a lawsuit by Kimberly Hively, an Indiana teacher who has alleged that she was fired from Ivy Tech Community College because she is a lesbian. She applied to six full-time jobs at the school in South Bend, Ind., that she did not get, and she was let go from her part-time position there in 2014.

Of course, these events were born in the climate of discrimination against LGBTQ citizens inflamed by Pence when, as governor in 2013, he signed a so-called "religious liberty" bill so egregiously discriminatory that it put him on the wrong side of a moral issue from the NCAA. (Pence signed the bill the week before Indianapolis was supposed to host that year's Final Four.) This fiasco undoubtedly contributed to the fact that Pence's local favorability polling dropped sufficiently low to make him eligible to be Donald Trump's running mate.

But, as the debate over Neil Gorsuch unspools in Washington, one particular passage from a concurring opinion in the Hively case, written by Judge Richard Posner, seems particularly…how you say?...piquant.

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. We are not. We are taking advantage of what the last half century has taught.

If this, as seems likely, gets appealed up to the Supreme Court, and Neil Gorsuch is there to rule on it, I suspect that he will not look favorably upon that notion. But I am a terrible cynic about such things.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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