President Trump ended speculation Tuesday night on whom he’d select to replace the late U.S. Associate Justice Antonin Scalia with the nomination of Neil Gorsuch — and LGBT advocates wasted no time in quickly condemning the choice.
Announcing his choice of Gorsuch — who has served for a decade as a George W. Bush-appointed judge on the U.S. Tenth Circuit Court of Appeals — Trump in the East Room of the White House said his choice makes good on his campaign promise to limit his U.S. Supreme Court judicial picks to a list of pre-selected names and to appoint judges in the mold of Scalia.
Praising Scalia’s widow, who was seated in the audience at the time of the announcement, Trump said “the image and genius” of the late justice “was in my mind throughout the decision-making process.”
The comparison of Gorsuch to Scalia, who wrote scathing dissents in major U.S. Supreme Court decisions in favor of gay rights — wasn’t lost on LGBT advocates opposing his nomination.
Shannon Minter, legal director of the National Center for Lesbian Rights, came out swinging against Gorsuch, calling him an “extreme candidate” based on his judicial rulings.
“We strongly oppose this nomination,” Minter said. “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. We are deeply disappointed by President Trump’s choice of such an extreme candidate, whose views pose a real threat to our nation’s core principles of equality and freedom for all, and urge the Senate to reject his nomination.”
Rep. Jerrold Nadler (D-N.Y.), an LGBT rights supporter, expressed frustration the Republican-controlled Senate never allowed a vote on Obama’s choice of Merrick Garland and declared his opposition to Gorsuch “until it is clear that he will protect the constitutional rights of women, of the LGBT community, and the rights of every American.”
“Judge Gorsuch is Justice Scalia on steroids,” Nadler said. “His record demonstrates that, if confirmed, he would rely on his conservative, originalist philosophy to overturn critical precedents and to disregard the rights of everyday Americans while bolstering protections for corporations and special interests.”
Prominent in Gorsuch’s rulings on the 10th Circuit is a lower court decision in the Hobby Lobby case, in which the U.S. Supreme Court in 2014 ultimately ruled the chain could deny contraception coverage to its employees based on religious reasons despite being a for-profit corporation.
“The law we address today compels the corporations to act contrary to their religious beliefs,” Gorsuch wrote. “They therefore suffer a substantial burden. I see no need to examine how damaging the sanctions for noncompliance would be or how difficult it would be for the corporations to rearrange their present manner of operating their businesses to avoid violating the law.”
The Supreme Court limited the Hobby Lobby ruling to contraception, explicitly denying the decision was precedent in cases pertaining to civil rights laws, but critics say the decision could open the door to rulings in the name of “religious freedom” against laws prohibiting LGBT non-discrimination. (That has occurred. A federal judge in Michigan cited the Hobby Lobby decision when ruling against a transgender employee at a funeral home who was terminated for transitioning.)
Gorsuch also sided with “religious freedom” arguments over the Affordable Care Act’s mandate that employers provide contraception coverage in the 10th Circuit ruling in the case of Little Sisters of the Poor Home for the Aged v. Burwell.
Rachel Tiven, CEO of Lambda Legal, declared opposition to the nominee based on Gorsuch’s “religious freedom” rulings, which she said marks the first time her organization opposed a Supreme Court nominee without any confirmation hearing.
“Judge Gorsuch’s opinion in the 10th Circuit Hobby Lobby decision is disqualifying,” Tiven said. “The Hobby Lobby decision set a terrible and destructive standard for bosses being allowed to meddle in our sex lives and decide whether or not birth control is covered by the employer’s insurance plan.
Immediately at the time Trump announced Gorsuch as his choice for the Supreme Court, Lambda Legal unveiled a compilation of decisions and writings from the nominee demonstrating anti-LGBT views.
Among the writings was a piece for the conservative National Review titled “Liberals & Lawsuits,” which condemned the progressive movement for seeking advancements in the courts as opposed to seeking change elsewhere. Two years after the Massachusetts Supreme Court made the Bay State the first in the country to legalize same-sex marriage, the article explicitly identifies same-sex marriage as an issue that doesn’t belong in the courts.
“American liberals 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 everything from gay marriage to assisted suicide to the use of vouchers for private-school education,” Gorsuch said. “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”
The U.S. Supreme Court ruled last year in favor of marriage equality nationwide. Given that Gorsuch would replace Scalia, a justice who dissented from the decision, his confirmation might be step toward an unlikely ruling overturning the decision down the road, but not sufficiently enough to change the makeup of the court.
Gregory Angelo, president of Log Cabin Republicans, said the marriage issue was settled regardless of who’s appointed to the bench, refusing to join other LGBT advocates in opposing Gorsuch.
“Marriage equality is here to stay, and the confirmation of Judge Gorsuch — or any conservative justice — will not change that,” Angelo said. “Log Cabin Republicans continues to review the case history of Judge Gorsuch and welcomes confirmation hearings in the United States Senate to explore his perspective on the relevant issues facing LGBT Americans today.”
On the 10th Circuit, Gorsuch also joined a ruling against transgender rights in 2015 in the case of Druley v. Patton, which rejected arguments the Oklahoma Department of Corrections violated a transgender inmate’s constitutional rights by denying her hormone treatment and her request to wear feminine clothing. The ruling explicitly denies transgender people belong to “a protected suspect class for purposes of Equal Protection claims.”
“Ms. Druley did not allege any facts suggesting the ODOC defendants’ decisions concerning her clothing or housing do not bear a rational relation to a legitimate state purpose,” the decision adds. “Thus, she has not demonstrated a likelihood of success on her Equal Protection claims.”
Chad Griffin, president of the Human Rights Campaign, came out in opposition to Gorsuch after insisting the choice is Trump’s latest effort “since the moment he stepped foot in the Oval Office” to undermine LGBT rights.
“The Supreme Court has played a central role in advancing the promise of equality for LGBTQ Americans, and Judge Gorsuch’s anti-equality record — from opposing crucial medical treatment for a transgender person to supporting a license to discriminate for private corporations — make him unfit to sit on the nation’s highest court,” Griffin said. “We cannot afford a justice who will roll back our rights, or who will be a rubber stamp for Donald Trump’s unconstitutional actions. And America cannot afford to have Judge Gorsuch on the Supreme Court. We oppose this nomination.”
Daniel Ramos, executive director of One Colorado and an LGBT advocate from the state where Gorsuch has served as a judge, cited Gorsuch’s “religious freedom” rulings as a source of concern and called on U.S. Sens. Michael Bennet (D-Colo.) and Cory Gardner (R-Colo.) to reject the nominee.
“A Supreme Court that would rule in support of religious exemptions would certainly open LGBTQ Americans up to discrimination and open up a can of worms that could allow individuals to ignore child welfare, domestic violence, or other laws that someone could contend is contrary to their religion,” Ramos said. “The Supreme Court has the potential to shape the future of our nation for generations to come and Supreme Court Justices should be committed to upholding America’s promise of fairness and freedom for all.”
Expressing support for the nomination, on the other hand, and present during the White House announcement for the choice was Tony Perkins, president of the anti-LGBT Family Research Council, who cited Gorsuch’s ruling for “religious freedom” as a reason to support him.
“Judge Gorsuch’s record over the last 14 years, especially on religious liberty, gives Americans every reason to believe he will make a fine Supreme Court justice,” Perkins said. “His reputation as a judge with integrity and dedication to the Constitution should be an encouragement to all Americans.”
The makeup of the Supreme Court will be important as it considers the case of G.G. v. Gloucester County Schools, which will determine whether a transgender student, Gavin Grimm, can use the restroom at school consistent with his gender identity. However, the odds are against the Senate completing what will likely be a contentious confirmation process in time for Gorsuch to join arguments in the case.