Hively v. Ivy Tech – En Banc Oral Argument

Hively v. Ivy Tech, 7^th Circuit, number 15-1720, Argued en banc November 30, 2016

AUDIO AVAILABLE HERE

SEATING ARRANGEMENT

and indication of segments of argument in which judges spoke

*Original Panel

APPELLANT ARGUMENT
Gregory Nevins

1:52   Wood   “So, can I ask you, Mr. Nevins…
3:20   Wood   “So, you’re saying, essentially, …

4:00   Rovner “Now, thank you, although it’s certainly true …
5:42   Rovner  “So, are we placing too much power in the judiciary …

7:34   Williams  “Now, Ivy Tech relied on the Ulane case …

9:23   Wood   “So, I wonder if you could say a word or two about sex stereotyping ..
(and exchange that follows)

12:01  Williams  “One of the arguments you make is that we should overturn Hamner …

14:07  Wood  “I thought actually, to go back to your earlier point …
15:45  Wood  “Has the Supreme Court ever defined the word sex either to include or …
16:12  Wood  “Isn’t there a stereotype built into that …”
(and exchange that follows)

17:27  Rovner  “Of course, we know about the new Scott case …

21:13  Williams  “Let me ask you, just sort of a hypothetical …

Gail Coleman, EEOC (beginning 22:03)

24:02  Sykes   “What’s the right comparison group?”
(and exchange that follows)

APPELLEE ARGUMENT
John Maley (beginning 28:03)

28:25  Rovner   “But tell me, please, how sexual orientation discrimination …

28:52  Wood  “But we’re here to reconsider, so maybe you could answer …
(and exchange that follows)

31:46  Easterbrook  “Counsel, I’d like to focus on a different intervening decision …
(and exchange that follows)

33:42  Wood  “But the question is why not, because I don’t think you’re agreeing …”

34:18   Posner  “Look, you seem to think that the meaning of a statute …
(and exchange that follows)

35:44  Wood  “But they didn’t actually say that in either Hopkins or Oncale …
(and exchange that follows)

37:11   Posner  “Why do you think there are lesbians?
37:15 Bauer “What was the question?”
37:19   Wood  “These particular people, did you mean?”
37:22   Posner  “Why do you think there is this type of person?”
(and exchange that follows)
37:38   Bauer  “It’s not just ugly men, huh?” (and repeats comment)

37:56   Posner/Wood both speaking
37:58   Posner  “It’s not a choice, right? It’s probably genetic, or …”
(and exchange that follows)

41:28   Posner/Wood both speaking
41:28   Wood  “That’s actually the question before us …
41:29   Posner (continuing) “ .. again, you could say that with all these statutes which came to have a different meaning over time ..

41:54   Wood  “So before you respond, I think Judge Williams …

41:57   Williams  “Well, I mean, just following along in this same line, you rely on …

42:47   Rovner  “But today you are here, and I have a very simple-minded question …

43:18   Wood  “Why? I don’t understand that though …

43:28   Easterbrook  “It brings you back to the Loving problem.”
43:29   Wood  “Yeah, it does take you straight back to Loving.”

43:34   Kanne  “Does religious doctrine have any play in this particular statute?” (repeats question)

43:50   Easterbrook  “So is sex.”

44:14   Wood  “But our issue, I mean, we understand that, but fundamentally, we’re here..

44:58   Hamilton  “Can I put this in the form of a question, I guess …

45:58   Wood  “So, in a sense, it’s only the phonies that get protection …

46:13   Hamilton  “Well, Congress has, I mean, the problem, look, Judge Rovner’s opinion …

47:20   Sykes  “I take it that you would concede …” (cut off by Posner)

47:21   Posner (talking over Sykes) “I don’t know, what’s wrong with rejecting precedent?”
(and exchange that follows)

50:06   Rovner  “And after Price Waterhouse and Oncale, does that, do those cases …

50:37   Wood  “But we know that means very little …

50:42   Williams  “So, to get back to what Judge Rovner is asking …
(and exchange that follows)

52:39   Sykes “I take it you would concede that if Ivy Tech promoted gay men …

REBUTTAL
Gregory Nevins (begins 53:14)

53:55   Sykes “I should think that you would rather argue that the original understanding …

54:16   Wood  “Actually, you know, you might recall that in Ulane itself, although this court …
(and exchange that follows)

54:37   Sykes “Right, and you’re trying to make a textualist argument for your interpretation …
(and exchange that follows)