After the Second Circuit’s unfortunate decision yesterday in Zarda v. Altitude Express, Bloomberg Law published a story about CLDEF’s brief opposing the right of a homosexuals to sue employers for employment discrimination based on the 1964 Civil Rights Act,
The Second Circuit has now added to an already existing circuit split on the issue, which makes Supreme Court review more likely, attorney William J. Olson in Winchester, Va., said. He filed a brief with the Second Circuit on behalf of the Conservative Legal Defense and Education Fund and two other groups, arguing that Title VII’s sex discrimination provision, as written in 1964, wasn’t meant to and doesn’t prohibit discrimination against someone based on their sexual orientation.
Olson, the Virginia-based attorney for the Conservative Legal Defense and Education Fund, said the Second Circuit’s opinion is an example of judges legislating from the bench. The majority disregarded the text of the statute along with its legislative history, two factors that courts have long looked to when interpreting a federal law. Instead, ‘‘judges’ policy views are now of paramount importance,’’ he said. If the words, history, and original intent of a law ‘‘mean nothing,’’ he said, then ‘‘we have moved into’’ an era of ‘‘rule by unelected black-robed lawyers.’’ The personal preferences of a judge ‘‘should no longer matter once someone has put a robe on,’’ Olson said.