In an eight-page letter sent to Sens. Chuck Grassley (R-Iowa) and Dianne Feinstein (D-Calif.) of the Senate Judiciary Committee, LGBT groups underscore the need to “demand complete answers” from Gorsuch because it’s the only way to “reveal the extent to which his nomination jeopardizes rights and liberties that many Americans believe are secure.”
“The American people have a right to know how the appointment of Judge Gorsuch to the Supreme Court would impact the rights of LGBT Americans, people living with HIV, and other at-risk communities who are entitled to rely upon the Constitution’s guarantees of equality, liberty, dignity and justice under the law,” the letter says.
The letter identifies four keys areas in which LGBT groups urge questioning for Gorsuch — the extent to which he subscribes to the judicial philosophy of originalism, fundamental rights, equal protection and the role of the courts — each of which, the LGBT groups say, is important to LGBT people and people with HIV.
“Judge Gorsuch’s articulated judicial philosophy is far outside the legal and social mainstream, and would significantly disrupt Americans’ expectations about the rights that they enjoy under the Constitution,” Gorsuch said. “His views should be as frightening to others as they are to the LGBT community. The Committee should require Judge Gorsuch to explain what he means when he describes himself as an ‘originalist.'”
In the aftermath of lamdmark rulings such Lawrence v. Texas and Obergefell v. Hodges, the letter calls on senators to question Gorsuch on whether Constitution guarantees a fundamental right to privacy that protects consensual adult sexual relationships as well as fundamental right to marry that applies to same-sex couples.
Other identified areas of concern are approaches to statutory construction, such as whether anti-LGBT discrimination is prohibited under current civil rights law, religious exemptions under the law, the relevance of science to legal decision-making and employer defenses to claims of discrimination.
The confirmation hearings for Gorsuch are set to begin Monday before the Senate Judiciary Committee.
Initial signatories of the letter, which was led by Lambda Legal, include the Human Rights Campaign, the National Center for Transgender Equality, the LGBT labor group Pride at Work and the LGBT military group OutServe-SLDN. Additional names added to a subsequent iteration of the letter include the Victory Institute and Service & Advocacy for GLBT Elders, or SAGE.
The opposition to Gorsuch in the letter is consistent with the opposition to Gorsuch expressed by LGBT groups immediately at the time President Trump nominee him to the Supreme Court. Concern over Gorsuch was largely based over his rulings in favor of “religious freedom.” such as the opinion he wrote at the U.S. 10th Circuit Court of Appeals in favor of Hobby Lobby denying health coverage coverage contraception for female employees.
Although Gorsuch has never ruled on the issue of same-sex marriage, the nominee wrote a scathing piece in 2005 for the National Review titled “Liberals & Lawsuits” excoriating the progressive movement for seeking advancements in the courts. Two years after the Massachusetts Supreme Court ruled in favor of same-sex marriage, the article identifies marriage equality as an issue that should be settled outside the judicial system.
In 2009, Gorsuch joined an published opinion before the U.S. Ninth Circuit Court of Appeals in the case of Kastl v. Maricopa County Community College District, which found transgender people aren’t protected under the provision of Title VII of the Civil Rights Act of 1964 barring sex discrimination.
Gorsuch’s views on this issue could be of importance as courts consider the issue of whether transgender people are entitled to bathroom access consistent with gender identity under laws like Title VII and Title IX of the Education Amendments of 1972.
The offices of Grassley and Feinstein didn’t respond to the Washington Blade’s request to comment on the Gorsuch letter from LGBT groups.