BY LISA KEEN
Of the three judges President Trump was said to be considering for the current vacancy on the U.S. Supreme Court, he chose the one who is the most conservative and least likely to be concerned about equal rights for LGBT people.
Trump on Jan. 31 introduced federal appeals Judge Neil Gorsuch, 49, as his choice to fill the seat left vacant since last February by Justice Antonin Scalia’s sudden death.
Gorsuch has argued that supporters of equal rights for same-sex couples should not be a matter of law but an issue for “elected leaders and the ballot box.” As a judge on the 10th Circuit U.S. Court of Appeals, he wrote a concurring opinion in favor of allowing the owners of a non-religious commercial business to claim their personal religious beliefs should warrant giving their company an exemption to the Affordable Care Act’s mandate that employers’ health insurance plans cover contraception.
The nomination drew an historic response from Lambda Legal, which announced within minutes of Trump’s announcement of Gorsuch that it would formally oppose his nomination.
“This is the first time Lambda Legal has opposed a Supreme Court nomination before a confirmation hearing,” noted in a Jan. 31 press release.
“We absolutely must not confirm a Supreme Court nominee who has ruled that the religious beliefs of employers can trump the law,” said Lambda Chief Executive Officer Rachel Tivlen. “It is a short hop from birth control restrictions to restrictions on the intimate relationships and health care needs of LGBT people.”
“Through his decisions, Judge Gorsuch has promoted a vision of a society where some religions prevail over others, and are invited to flout the law,” added Tevlin. “Judge Gorsuch’s judicial record is hostile toward LGBT people and his nomination to the U.S. Supreme Court is unacceptable – we oppose.”
The National Center for Lesbian Rights also announced its opposition to Gorsuch on Jan. 31.
“Gorsuch has embraced extreme positions far outside the mainstream of most jurists, including a dangerously radical view of religious liberty that would undermine anti-discrimination protections for LGBT people and others,” said Shannon Minter, NCLR legal director. Minter said Gorsuch’s views “pose a real threat to our nation’s core principles of equality and freedom for all.”
Janson Wu, executive director of GLBTQ Legal Advocates & Defenders, said his organization has “grave concerns” about Gorsuch.
“Judge Gorsuch has expressed skepticism about the judiciary’s role in defining and protecting constitutional liberties and freedoms that are central to LGBTQ lives, in ways that could undermine established Constitutional protections such as marriage equality and access to reproductive health care,” said Wu. “He has wrongly and anemically interpreted the Constitution to make it harder for individuals to seek equal protection under the law. And he has expressed hostility to progressive movements’ use of the judicial process to safeguard constitutional liberties and protections for all.”
Gorsuch has been a judge for only 10 years, having been nominated in 2016 by President George W. Bush to the 10th Circuit. That circuit hears appeals from federal district courts in six states: Colorado, New Mexico, Utah, Wyoming, Nebraska and Kansas.
Before becoming a judge, and while working as an attorney at the Washington, D.C.-based law firm of Kellogg Huber Hansen Todd Evans & Figel, Gorsuch penned an article for a conservative political magazine. In the article, published in 2005 by the National Review, Gorsuch argued that social activists, such as those who support marriage for same-sex couples, should rely on “elected leaders and the ballot box” rather than judges to secure “their social agenda.”
“Liberals may win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts,” wrote Gorsuch. “But in failing to reach out and persuade the public generally, they invite exactly the sort of backlash we saw in November when gay marriage was rejected in all eleven states where it was on the ballot.”
Massachusetts began issuing marriage licenses to same-sex couples in 2004 after a state supreme court ruling and action by the state legislature.
In that same article, Gorsuch also claimed that Democrats had failed to win “a majority of the popular vote in nine out of the last ten presidential elections.” He blamed this in part on Democrats having “Litigation addiction.” However, he failed to explain why Republicans had also failed to win a majority of the popular vote in seven out of the previous ten presidential elections, according to Roper Center data.
As a judge, Gorsuch wrote a concurring opinion in the 10th Circuit’s ruling in favor of Hobby Lobby, a chain store that wanted exemptions to the Affordable Care Act’s requirement that employer health plans cover contraception. Hobby Lobby’s owners said they should have the exemption not because their store was a religious institution but because the owner held personal religious beliefs that regarded contraception as objectionable.
The U.S. Supreme Court upheld the 10th Circuit’s ruling in Burwell v. Hobby Lobby, allowing the store to deny coverage for contraception to their employees. Gorsuch didn’t write the 10th Circuit’s ruling but wrote a concurring opinion that illustrates his tendency to paint with a very broad brush followed him to the bench.
“All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others,” he wrote. And, in a sentence that today rings with considerable irony today, Gorsuch added, “The [ACA] doesn’t just apply to protect popular religious belief: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”
Lambda Legal says Gorsuch also joined a 10th Circuit opinion in 2015 that rejected arguments made by a transgender woman prisoner who sought the right to wear clothing consistent with her gender identity and to receive medical hormone treatment related to her gender identity.
The Williams Institute said Gorsuch joined an unpublished opinion while sitting temporarily on a 9th Circuit case involving a transgender person who sued her employer for refusing to allow her to use a restroom for females until after she completed gender surgery. The 9th Circuit decision, which Gorsuch joined, said the employer’s concern for “restroom safety” did not constitute discrimination.
In another irony, Gorsuch clerked at the U.S. Supreme Court for both the author of the most notoriously hostile opinion on the rights of LGBT people and the most supportive. He first clerked for Justice Byron White, who, in 1986, wrote the Bowers v. Hardwick decision that upheld state laws banning sexual relations between adults of the same sex. When White retired in 1993, Gorsuch began clerking for Justice Anthony Kennedy. Kennedy went on to author the high court’s most historic pro-LGBT decision, including Romer v. Evans, Lawrence v. Texas (2003), U.S. v. Windsor, and Obergefell v. Hodges (2015).
Gorsuch is widely considered a staunch conservative in the spirit of the late Justice Scalia and, like Scalia, prefers to read the constitution in a very narrow and strict manner. Such readings often lead to the conclusion that, because the founders of this nation never contemplated the widespread acceptance of LGBT people, then the constitution could not be read to include protections for the rights of such people.
Anti-LGBT Senator Ted Cruz called Gorsuch “a home run.”
But even before President Trump announced his choice of Gorsuch, U.S. Senator Jeff Merkley (D-Ore.) vowed to filibuster the nomination. Merkley, who has introduced bills seeking protections for LGBT people, said the Supreme Court seat Trump has nominated Gorsuch to is “a stolen seat.” He said President Obama’s nominee, Merrick Garland, should have been given a confirmation hearing and vote last year. And he said Democrats “will use every lever in our power to stop this.”
Senate rules require a vote of at least 60 senators to break a filibuster. Republicans hold 52 seats.
BY LISA KEEN