An excerpt from the Zarda decision is today's Queer Quote:
Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.To me this has been an obvious constitutional interpretation for decades and should have been part of the legal reasoning for why same-sex marriage is required under the constitution (in addition to being sex discrimination, traditional marriage laws are also sexual orientation discrimination). Judge José Cabranes pointed this out by concurring in the judgement of the majority with this brief decision (given here in its entirety):
This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of … sex.” Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.
That should be the end of the analysis.Interestingly, the second circuit is now the second federal appellate court to rule in favor of gay rights being civil rights, while previously the 11th U.S. Circuit Court of Appeals had ruled the other way last year.
The 1964 Civil Rights Act is one of the most hallowed achievements of the Civil Rights era so it is quite exciting that judicial statutory interpretation is growing on the side of inclusion of gay rights