How would a Justice Gorsuch rule on LGBTQ rights?

by Rob Howard
Associate Editor

President Trump’s nominee to fill the seat left open by Justice Antonin Scalia’s death, Judge Neil Gorsuch, doesn’t have much of a record on lesbian, gay and bisexual rights. He does have a record on transgender issues and that alarms activists. And his comments over a decade ago lead some writer to believe that it is unlikely that he would support LGBT rights.

The Human Rights Campaign (HRC) issued a report today that reviews what there is known about Gorsuch’s decisions.

On transgender rights, the HRC report says:

“In Druley v. Patton, Gorsuch forfeited the opportunity to recognize the Constitutional rights of a transgender woman who was incarcerated, refusing to recognize that denying her basic, consistent health care and placing her in an all-male housing facility constituted cruel and unusual punishment.

“Gorsuch joined the opinion in Kastl v. Maricopa County Community College District, ruling against a transgender woman alleging employment discrimination under Title VII.

Perhaps as alarming was his participation in the Hobby Lobbycase when it came to the 10th Circuit Court. HRC says, “Gorsuch joined with the majority in Hobby Lobby Stores, Inc. v. Sebelius recognizing corporations as persons capable of exercising religion under the Religious Freedom Restoration Act.

“Although this decision dealt directly with access to reproductive care and contraception, this reasoning could be used by employers to deny LGBTQ people access to critical health care services.”

Slate.com writer Mark Joseph Stern wrote last week about Gorsuch’s views on how LGBTQ activists were going about winning marriage equality. Stern says, “Despite the relative novelty of legal same-sex unions, the constitutional question here should be easy—even for an originalist like Gorsuch. Both conservative originalists (like Steven Calabresi) and liberal originalists (like Akhil Amar and Elizabeth Wydra) have concluded that the 14th Amendment protects same-sex couples’ right to marry. But Gorsuch appears to disagree. In a 2005 National Review op-ed, Gorsuch mocked the court battle for same-sex marriage as a political fight dressed in constitutional garb.

“’American liberals,’ he wrote, ‘have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda’ on liberal issues including gay marriage. He also noted that voters routinely rejected same-sex marriage on the ballot, scoffing that liberals can only ‘win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts.’

Of course, since the Gorsuch comments were written in 2005, shortly after Massachusetts became the first state to gain marriage equality and 11 states the previous November banned it, we don’t know if his view have changed or not.

Also troubling is Gorsuch’s views on executive rule-making, the source, besides the courts, to much of the LGBTQ progress over the last decade under President Barack Obama. According to the HRC, “Gorsuch believes the Supreme Court should declare the administrative law doctrine known as ‘Chevron deference’ unconstitutional -- a move that would have a huge impact on the LGBTQ community by giving courts the power to decide policy and regulations.”

It is interesting that, even though Gorsuch is considered a jurist in the vein of the late Justice Scalia, Scalia is the judge who wrote the “Chevron Deference” doctrine.

In sum, the HRC concludes that a Justice Gorsuch would be a threat to LGBTQ rights and is opposing his confirmation.

In their blog, the HRC wrote, “’Judge Gorsuch has had a troubling record on LGBTQ issues throughout his career,’ said Sarah Warbelow, HRC legal director. ‘During his campaign, Donald Trump pledged to appoint a justice ‘in the mold of Antonin Scalia,’ and Gorsuch’s decisions and jurisprudence suggest he has kept that promise. The LGBTQ community has won important victories at the Supreme Court -- from Romer to Obergefell -- that affirm our rights and our liberties. We must ensure that those who serve on our highest court are willing to stand up for our community; Gorsuch has given us no indication that he will.’”

You can read the HRC report on Judge Gorsuch here: http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/Gorsuch-Report-Feb3-2017.pdf

Copyright 2017 The Gayly – February 6, 2017 @ 5:15 p.m.