Issue:  Vol. 48 / No. 13 / 29 March 2018

Gorsuch's record emphasizes religion, LGBT group says


U.S. Supreme Court nominee Judge Neil Gorsuch. Photo: Courtesy CNBC
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A big question for the LGBT community next week is not whether President Donald Trump's nominee for the U.S. Supreme Court will be confirmed. He almost certainly will be confirmed, and almost every national LGBT group is against that. The question is whether nominee Neil Gorsuch will reveal during his March 20 confirmation hearing the likelihood that he will favor the Constitution's guarantee of free exercise of religion over its guarantee of equal protection of the law.

The LGBT community supports both rights, and most judges will say they do, too. But the increasingly frequent clashes between those who support equal rights for LGBT citizens and those who feel fear or hostility toward LGBT people is coming to a head at the U.S. Supreme Court. And the legal battleground of those clashes is equal protection versus free exercise.

The confirmation of Gorsuch, 49, a federal judge on the 10th U.S. Circuit Court of Appeals, is virtually guaranteed. As Senator Kirsten Gillibrand (D-New York) pointed out recently, the Republican majority in the Senate will almost certainly change the Senate rules, if necessary, to ensure Gorsuch is confirmed by a simple majority vote. Republicans hold 52 seats.

And as for the religion versus equal protection balance, Gorsuch's record lends itself to the assumption that he will weigh religious arguments more heavily than those of equal protection. If asked about a specific case on LGBT rights, he's likely to say – as most judicial nominees do – that he will abide by the Supreme Court's decisions on those cases.

But the Supreme Court's decisions have been mixed. Pro-LGBT legal activists have won several major victories at the nation's highest court in recent years – striking down bans on marriage for same-sex couples (Obergefell v. Hodges, 2015) and striking down the Defense of Marriage Act which prevented equal federal benefits for same-sex married couples (U.S. v. Windsor, 2013). But anti-LGBT activists using religious exercise arguments have scored points, too. The Supreme Court's Hobby Lobby decision in 2014 was seen as a dangerous and radical one that could enable employers to simply claim religious beliefs to gain exemption from laws barring discrimination based on sexual orientation or gender identity.

In its analysis of Gorsuch's record, Lambda Legal Defense and Education Fund concluded that he has displayed "a vision of a society where religion prevails over law, and where the concerns of religious parties override the concerns of other citizens."

"In supporting this vision, Judge Gorsuch's opinions open the door to all manner of assaults on the civil rights of ordinary citizens – including lesbians, gay men, bisexuals, and transgender people and everybody living with HIV," said Lambda Legal.

Gorsuch's record, said Lambda Legal, is "more recklessly conservative" than that of the late Justice Antonin Scalia, the person he is nominated to replace.

That is a particularly bold statement. Before he died in February 2016, Scalia had amassed the worst voting record on LGBT issues of any justice on the high court. Some court observers believe that Gorsuch can't do worse than Scalia, so his confirmation will simply put things back to the way they were. But Lambda Legal disagrees.

"Don't for a second think that, because Gorsuch would be replacing Scalia, he'd be no more than a continuation of the status quo. It's far worse than that," said Lambda Legal in an email to its supporters last month.

This is the first time Lambda Legal has expressed its opposition to a Supreme Court nominee. And other LGBT organizations are opposing Gorsuch, too. The National Center for Lesbian Rights said he has a "dangerously radical view of religious liberty that would undermine anti-discrimination protections for LGBT people and others."

GLBTQ Legal Advocates & Defenders said he has "expressed hostility to progressive movements' use of the judicial process to safeguard constitutional liberties and protections for all."

And part of Gorsuch's record before becoming a judge on the 10th Circuit betrays a dismissive attitude toward lawsuits seeking equal protection for LGBT people. An article Gorsuch wrote referred to such lawsuits as a "social agenda" and suggested that, rather than the courts, LGBT people should seek redress from elected leaders and the ballot box.

His other pre-court writing revealed his ability to parse language to suit his needs. For instance, as an editor of the Federalist Paper at Columbia University, he objected to a description of the paper as a "political organization." Instead, he and his fellow editors explained, it was a "forum" for debate on "the issues of the day."


Legal experience

As a judge on the 10th Circuit, he wrote a concurring opinion in Burwell v. Hobby Lobby that suggested employers would be "involved in the wrongdoing of others" if they complied with employment laws that prohibited certain types of discrimination in health care coverage. The case dealt with a department store employer who objected to paying for contraception for its employees. But the LGBT community could easily envision employers making religious objections to things like preventive care against HIV infection or the use of medical insemination for lesbians seeking to have children.

What the LGBT community has to hope for is that Gorsuch's preference for freedom of religion can be tempered by his apparent comfort with LGBT people on an individual basis. A New York Times article noted that Gorsuch has had two openly gay clerks, at least one of whom told Gorsuch he was gay before Gorsuch hired him. The nominee belongs to a church in Boulder, Colorado, that welcomes gays. And, to the extent this might be telling, one gay male friend said Gorsuch "didn't skip a beat" when he told Gorsuch he was gay. In fact, said the friend, Gorsuch and his wife have been very welcoming of the man and his husband.

At a law forum in Columbus, Ohio, February 24, a gay man who had been one of several housemates of Gorsuch at Harvard Law said he felt Gorsuch was comfortable with him and two other housemates who were gay.

But having a gay law clerk or friend has not always translated into a disposition to see that LGBT people have equal protection of the law. Several years ago, another New York Times article noted that Justice Clarence Thomas, who has consistently voted against LGBT people in cases before the court, was very accepting of his openly gay clerk.

Gorsuch himself clerked for Justice Byron White seven years after White wrote the 1986 decision, Bowers v. Hardwick, that held that any right to privacy in the Constitution did not extend to private sexual relations between same-sex partners. In a speech honoring White, Gorsuch said he admired White "enormously."

White, said Gorsuch at the 2006 opening of an exhibit about the former justice, "passionately believed in human equality: the dignity of all persons and civil rights."

The Hardwick decision was reversed in 2003 in a decision led by Justice Anthony Kennedy, for whom Gorsuch also clerked briefly during the 1993-94 session after White retired.

Senate Majority Leader Mitch McConnell (R-Kentucky) said the Senate would likely vote on Gorsuch's nomination the week before its April 8 recess.

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