Gorsuch on LGBTs: ‘What about them? They’re people’

U.S. Supreme Court nominee Neil Gorsuch grew testy Tuesday afternoon as Senator Dick Durbin questioned him on his views about LGBT people. Gorsuch later evaded Senator Amy Klobuchar’s questions about recognizing constitutional rights for LGBT people. When asked whether the constitution provides equal justice for people regardless of sexual orientation, Gorsuch said only that “the U.S. Supreme Court has held single-sex marriage is protected by constitution,” but then he later refused to express his views about same-sex marriage saying that, because of “ongoing litigation about its impact and its application right now, I cannot begin to share my personal views….”

Senator Mazie Hirono (D-Ha) took Gorsuch back to the question of his personal views Tuesday, asking specifically about Obergefell v. Hopkins, the 2015 Supreme Court decision striking down state bans on marriage for same-sex couples.

“My personal views don’t matter,” said Gorsuch. “Obergefell is precedent of the U.S. Supreme Court …[it] entitles persons to engage in single-sex marriage.”

“That’s a right that the Supreme Court recognized, it’s a precedent of the U.S. Supreme Court, and it is entitled to all the deference due a precedent of the U.S. Supreme Court. And that’s quite a lot,” said Gorsuch.

Choice of words

Most legal and political observers refer to the issue as “same-sex marriage” or, more precisely, “marriage for same-sex couples.” It was not clear whether Gorsuch intended any distinction by using the term “single-sex marriage,” but he used it during all his references to marriage for same-sex couples.

In some respects, Monday and Tuesday’s confirmation hearings added very little to what is known about Gorsuch’s views on LGBT people. But they did demonstrate in person his ability to choose his words and manipulate his ideas deftly enough to avoid betraying the likelihood he would vote to limit the “impact” and “application” of the Supreme Court’s pro-same-sex marriage ruling.

Gorsuch added few facts to his scant record on LGBT matters – a record that has prompted Lambda Legal and other LGBT law groups to oppose his nomination. But he sounded defensive and maybe even a little dismissive when Durbin asked him about LGBT people.

“What about them?” replied Gorsuch. “They’re people.”

Durbin pushed back, noting that Gorsuch had said earlier that he had a record of standing up for minorities.

“Can you point to statements [you’ve written] relative to that class?”

Gorsuch sidestepped, saying he tried “to treat each case and each person as a person.”

“Not this kind of person or that kind of person,” said Gorsuch. “But as a person [deserving] equal justice under the law.”

“Does that refer to sexual orientation as well?” prodded Durbin.

Again, Gorsuch sidestepped.

“The Supreme Court of the United States has held that single-sex marriage is protected by the constitution.”

True. But the Supreme Court ruling in Obergefell did not address sexual orientation discrimination, per se.

Senator Durbin also pushed Gorsuch to explain the degree to which the nominee agrees with his former dissertation supervisor –Professor John Finnis– who submitted testimony in favor the anti-gay Colorado Amendment 2 and who equated homosexuality to bestiality.

Gorsuch downplayed his relationship with Finnis and said he couldn’t recall the specifics of Finnis’ testimony for Amendment 2. Gorsuch, who hails from Colorado, did recall the name of the case that challenged Amendment 2, Romer v. Evans.

Other Democratic senators pressed Gorsuch on his positions related to the legal status for LGBT people.

Senator Al Franken tried to find out whether Gorsuch may have been involved in Republican efforts to pass anti-gay ballot measures as a means of getting out the Republican base for incumbent President George W. Bush in 2004. Franken noted that now openly gay Ken Mehlman, then chairman of the Republican National Committee, put in a good word for Gorsuch to secure a job for him at the Department of Justice. Noting Gorsuch’s participation in the Bush campaign in Ohio –one of the states that passed an anti-gay ballot measure that year—Mehlman vouched for Gorsuch, saying that they had been roommates in law school and that Gorsuch was a “true loyalist” to Lawyers for Bush.

Gorsuch said he could not recall “any involvement in that issue during that campaign.”

Franken pressed again, asking Gorsuch for his “personal views” on same-sex marriage.

“My personal views? Any revelation of my personal views about this matter would indicate to people how I might rule as a judge, mistakenly, but it might,” said Gorsuch. “And I have to be concerned about that.”

When Franken pressed once again, Gorsuch said, “My personal views — if I were to begin speaking about my personal views on this subject, which every American has views on, I would send a misleading signal to the American people.” Then he reiterated, marriage for same-sex couples “is absolutely settled law.”

But he also said he couldn’t share his views because there is “ongoing litigation about [Obergefell’s] impact and its application right now.”

Klobuchar led Gorsuch through a dialogue to determine whether his professed preference for a strict reading of the text of the U.S. Constitution would prevent him from recognizing equal protection for LGBT people. He acknowledged the constitution can be read to recognize Congress’ right to control the Air Force, even though only “land and naval” forces were written into the Constitution. He acknowledged that a woman could be president, even though the Constitution uses only male pronouns in reference to the office of the president.

Given those concessions, asked Klobuchar, would Gorsuch be willing to apply this same approach to equal rights for minority groups, women, LGBT including transgender people?

“A good judge applies the law without respect to persons….I don’t take account of the person before me. Everyone is equal in the eyes of the law.”

It was baffling response. Everyone is supposed to be equal in the eyes of the law. But when a lawsuit challenges a law as disfavoring a minority, the important test in court is whether the law directly targets a specific and identifiable group of people. Lawsuits claiming discrimination based on race, sexual orientation, or other characteristics must prove the discrimination was based on the specifically identifiable characteristic.

Later, Gorsuch appeared to revise and extend his remarks. Senator Orrin Hatch noted that the nominee was being criticized for an article he wrote before he joined the Tenth Circuit U.S. Court of Appeals. The article criticized “liberals” for filing lawsuits on “everything from gay marriage to assisted suicide” to achieve their “social agenda.”

Gorsuch acknowledged that both conservatives and liberals make frequent use of the courts for redress.

Leave dramatic change to Congress

“The courts are very important place for the vindication of civil rights and for minorities,” he said. “It’s a place where unpopular voices get heard the same as popular voices. In a democracy and the legislature, the majority wins. That’s not the case in courts. The best argument should prevail.”

Gorsuch’s testimony was perhaps most revealing when he was asked about the constitutional amendment against unreasonable searches and how courts should apply that text in the age of modern technology. Gorsuch pointed to a case, U.S. v. Jones, in which police attached a tracking device to a suspect’s car. He said the court in that case looked at the original text in the constitution to conclude that “attaching something to someone else’s property is a trespass ….” Thus attaching a tracker to a car without a warrant is an unreasonable search.

“And the court held that, if that was a search 200 years ago, it would be today. Technology changes but principles don’t,” said Gorsuch. “It can’t be the case that the U.S. Supreme Court is any less protective of the people’s liberties today than it was the day it was drafted,” said Gorsuch. “…We look back, we find what the law was at the time…and we make analogies to our current circumstances….”

Then he added this: “It is a very different thing if you want to create a revolution in the area and change the law dramatically. That’s for [Congress] to do.”

LGBT legal activists consulted for this article did not offer an interpretation of that latter remark. But it echoed the position taken by Justice Antonin Scalia (whom Gorsuch is to replace) when he dissented to the Obergefell decision. He characterized the Obergefell majority as creating a “social upheaval” rather than letting American democracy resolve the issue of marriage for same-sex couples. He said the majority was allowing “the policy question of same-sex marriage” to be resolved by the court and, thus, “violat[ing] a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Questioning of Gorsuch continues Wednesday and witnesses for and against his nomination are scheduled to appear before the Senate Judiciary Committee Thursday.

Sarah Warbelow, legal director for the Human Rights Campaign, will express the organization’s opposition to Gorsuch’s confirmation, at Thursday’s hearing. According to HRC, Warbelow will note, among other things, that Gorsuch’s dissertation in 2004 “revealed that he did not think the United States Constitution protected the right to marriage equality.” She will also point to his joining a 2015 ruling on the Tenth Circuit “against a transgender woman who was denied consistent access to hormone therapy while incarcerated.”

LGBT legal groups, including Lambda Legal, have all come out against Gorsuch’s confirmation. And the Center for American Progress says it fears Gorsuch will attempt to “dismantle” landmark LGBT legal victories.

The Republican-dominated Senate is almost certainly going to confirm Gorsuch to the Supreme Court. Senate Majority Leader Mitch McConnell has said the full Senate will vote before the April 8 recess.

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