Gorsuch now looms over upcoming LGBT battles
With a new wave of major LGBT civil rights cases on the U.S. Supreme Court’s horizon, right-wing conservative Neil Gorsuch was sworn into office this week to fill the vacancy left by the late Justice Antonin Scalia.
Scalia’s voting record was the most consistently opposed to any decision that favored equal protection for LGBT people, whether it was in marriage, in anti-discrimination laws, or in any First Amendment rights. Gorsuch’s record as a Tenth Circuit U.S. Court of Appeals judge and his writing prior to the court suggested an unfriendly disposition towards LGBT people. His responses to LGBT-related questions –in the open Senate confirmation hearing and in written responses afterwards— were so carefully worded they could disguise any open animosity while leaving open a pathway to justify rulings against them.
“Does the Fourteenth Amendment require that states treat gay and lesbian couples equally to heterosexual couples? Why or why not?” asked Senator Chris Coons (D-Dele.) in a written question to Gorsuch.
“In Lawrence v. Texas and Obergefell v. Hodges, the Supreme Court held that gay and lesbian couples have a constitutionally protected right to engage in consensual sexual relations and to marry,” wrote Gorsuch.
Gorsuch’s response was not an answer to Coons’ specific question but simply a paraphrasing of what the Supreme Court held in those two cases.
“Does the Fourteenth Amendment require that states treat transgender people equally? Why or why not?” asked Coons. Again, Gorsuch found a way not to answer:
“This question appears to reference pending or impending cases likely to come before the Supreme Court, and accordingly it would not be proper for me to comment further. To do so would risk violating my ethical obligations as a judge, denying litigants the fair and impartial judge to whom they are entitled, and impairing judicial independence by suggesting that a judge is willing to offer promises or previews in return for confirmation.”
Coons pressed on, saying the majority in Obergefell stated, “Without the recognition, stability, and predictability marriage offers, [the children of same-sex couples] suffer the stigma of knowing their families are somehow lesser.” The majority, said Coons, rejected “arguments made by campaigns to prohibit same-sex marriage about the purported negative impact of such marriages on children.” And he asked Gorsuch, “When is it appropriate to consider evidence that sheds light about our changing understanding of society?” and “What is the role of sociology, scientific evidence, and data in the Supreme Court’s analysis?”
“Whether and what sociology, scientific evidence, and data a court should consider are questions that are often contested in litigation,” said Gorsuch. “I am unaware of a global answer to these questions. A judge can only take each case on its facts and in light of applicable law.”
Senator Richard Blumental (D-Conn.) asked about the Supreme Court’s 1996 decision in Romer v. Evans, which struck down an anti-gay ballot measure in Colorado that repealed and prohibited various municipalities in the state banned discrimination based on sexual orientation. The majority said Amendment 2 violated the equal protection guarantee.
Equal protection of the law is provided in the Fourteenth Amendment of the Constitution: All persons born or naturalized in the United States… are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“Did the decision in Romer v. Evans get the original understanding of the Fourteenth Amendment right?” asked Blumenthal.
“Romer v. Evans involved the Supreme Court’s application of Fourteenth Amendment principles, and it is entitled to all of the respect due a precedent of the Supreme Court.”
This latter response, like the others, did not answer the senator’s questions but simply restated a point about the majority decision. But it also repeated a line that became Gorsuch’s telling mantra during his confirmation process: “entitled to all of the respect due a precedent of the Supreme Court.”
Several senators attempted to wrestle out of Gorsuch just how much “respect” he believes is “due” to Supreme Court precedents.
When Blumenthal asked him whether the Supreme Court’s ruling in Griswald v. Connecticut against bans on contraception was a correct application of precedent, Gorsuch noted that the precedent was more than 50 years old, had been repeatedly reaffirmed, and had “obvious reliance interest.”
As to Lawrence v. Texas, which struck bans on consensual sexual relations between same-sex adults, he noted the decision was “14 years old, with obvious reliance interests, and has been reaffirmed –factors relevant to the weight of precedent.”
Gorsuch did not hesitate to state that he believed Brown v. Board of Education “corrected a deeply erroneous decision” in by Plessey v. Ferguson that had upheld segregation. But when Blumenthal asked him whether Lawrence had corrected a deeply erroneous decision in Bowers v. Hardwick which had upheld laws against same-sex sexual relations, Gorsuch stated only the obvious: that the Supreme Court in Lawrence had held that Bowers was incorrect when it was decided.”
Senator Patrick Leahy (D-Vt.) tried too.
“Was Justice Scalia right when he said that the [Lawrence] decision was part of the ‘homosexual agenda,’ which he said was trying to ‘eliminate the moral opprobrium that has traditionally attached to homosexual conduct’?”
“The holding of the majority in Lawrence v. Texas,” said Gorsuch, providing an answer without a response, “is the controlling precedent of the United States Supreme Court, not the dissent.”
As expected, Republicans changed the Senate rules last week in order to confirm Gorsuch without reaching a 60-vote standard but instead just a simple majority. The 54 to 45 vote April 7 included all Republicans and only three Democrats (from Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana) for Gorsuch’s confirmation. All other Democrats and the Senate’s two independents (Bernie Sanders of Vermont and Angus King of Maine) voted against.
In the next year or so, the Supreme Court is expected to take up two major LGBT-related issues: whether Title VII’s prohibition of sex discrimination in employment can cover sexual orientation and/or gender identity; and to what extent the guarantee of free exercise of religion can trump the guarantee of equal protection and various laws prohibiting discrimination based on sexual orientation and/or gender identity. Both issues have the potential for far-reaching consequences –good or bad—for LGBT people.