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Gorsuch calls same-sex marriage ‘settled law’

‘I’ve tried to treat each case and each person as a person’

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Neil Gorsuch, gay news, Washington Blade

Judge Neil Gorsuch (Washington Blade photo by Michael Key)

Amid opposition from LGBT rights supporters to the confirmation of Neil Gorsuch to the U.S. Supreme Court, President Trump’s nominee referred to same-sex marriage as “settled law,” but was otherwise relatively tight-lipped about his views during his confirmation hearings.

Grilled by members of the Senate Judiciary Committee about his judicial philosophy, U.S. Circuit Judge Gorsuch on Tuesday maintained “equal justice under the law” — words enshrined at the top of the Supreme Court building — was a “radical” idea, but one he’d uphold, when asked about application of the law to LGBT people.

Pressed by Sen. Al Franken about marriage equality specifically, Gorsuch replied, “It is absolutely settled law,” but added, “there’s ongoing litigation about its impact and its application right now.”

When Sen. Richard Durbin (D-Ill.) asked the nominee about his views on LGBT people, Gorsuch seemed irritated and responded, “What about them?” and as Durbin sought to clarify, the nominee retorted, “They’re people.”

Asked by Durbin to point to a statement or decision favorable to LGBT people, Gorsuch offered his judicial philosophy that all individuals are entitled to equal treatment under the law.

“I’ve tried to treat each case and each person as a person, not a this kind of person, not a that kind of person — a person,” Gorsuch said. “Equal justice under law is a radical promise in the history of mankind.”

Durbin pressed Gorsuch to clarify whether that applies to sexual orientation, prompting Gorsuch to invoke the 2015 Obergefell v. Hodges decision in favor of same-sex marriage.

“The Supreme Court of the United States has held that single-sex marriage is protected by the Constitution,” Gorsuch said, using “single-sex marriage” terminology commonly cited in Europe, but rarely in the United States, to refer to marriage equality.

Durbin brought up LGBT people in the context of questioning of John Finnis, whom Gorsuch identified as a mentor during his time at Oxford University. A conservative one-time law professor, Finnis delivered a deposition in the early ’90s in favor of Colorado’s anti-gay Amendment 2, a law that prohibited cities from enacting non-discrimination ordinances based on sexual orientation. The Supreme Court struck down the law in the 1996 Romer v. Evans decision.

Referencing a passage in which Finnis compared same-sex relationships to bestiality and said antipathy toward LGBT people is based not just on religious reasons, but societal views, Durbin asked Gorsuch whether he was aware of his mentor’s statements.

“I know he testified in the Romer case,” Gorsuch said. “I can’t specifically recall the specifics of his testimony or that he gave a deposition.”

When Durbin sought more information from Gorsuch on the impact Finnis had on his views, Gorsuch referred to rulings he made on the bench as a member of the U.S. 11th Circuit Court of Appeals.

“I think the best evidence is what I’ve written,” Gorsuch said. “I’ve written or joined over 6 million words as a federal appellate judge. I’ve written a couple of books. I’ve been a lawyer and a judge for 25 or 30 years, and I guess I’d ask you, respectfully, to look at my credentials and my record.”

In another exchange with Franken, Gorsuch conceded the issue of same-sex marriage is “settled” law, but acknowledged subsequent litigation is ongoing on its impact and kept his cards close to his vest on his personal views.

Referencing Gorsuch’s help with former President George W. Bush’s 2004 re-election campaign in Ohio as a member of “Lawyers for Bush,” Franken noted that was the year the state had an anti-gay amendment on the ballot and asked the nominee whether same-sex marriage should be subjected to popular vote.

“Senator, I don’t recall any involvement in that issue during that campaign,” Gorsuch said. “I remember going to Ohio.”

When Franken asked the nominee if he was aware of the marriage issue in 2004, Gorusch replied, “Certainly, I was aware about it.”

Pressed further by Franken for his views, Gorsuch added, “Any revelation about my personal views about this matter would indicate to people how I might rule as a judge. Mistakenly, but it might, and I have to be concerned about that.”

When Franken pointed out the U.S. Supreme Court has ruled in favor of same-sex marriage nationwide and asked Gorsuch how his views have changed since 2004, the nominee remain tight-lipped.

“My personal views, if were to begin speaking about my personal views on this subject, which every American has views on, would send a misleading signal to the American people,” Gorsuch said.

The Minnesota Democrat sought to move on to another topic as Gorsuch said he wanted to finish his thought about not being able to disclose personal view, but Franken said, “You’ve given a version of this answer before. I understand.”

The issue of marriage equality came up later in the hearing when Sen. Mazie Hirono (D-Hawaii) brought it up when asking Gorsuch about his views on whether the Constitution protects intimate and personal choices. Gorsuch again declined to express his personal views, but underscored the importance of the Obergefell decision as precedent.

“Obergefell is a precedent of the United States Supreme Court,” Gorsuch said. “It entitles persons to engage in single-sex marriage. That’s a right that the Supreme Court has recognized. It is a precedent of the United States Supreme Court entitled to all the deference to precedence of the United States Supreme Court, and that’s quite a lot.”

Much of the concern over Gorsuch concerns his subscription to the judicial philosophy of originalism in which jurists seek to determine lawmakers’ original intent of enacting statutes before ruling on them, a practice criticized as a means to deny justice to minority groups, including LGBT people. The late U.S. Associate Justice Antonin Scalia advocated that judicial viewpoint in his dissents to major gay rights cases, such as the U.S. Supreme Court decision in favor of same-sex marriage.

Sen. Amy Klobuchar (D-Minn.) sought clarification from Gorsuch on originalism, referencing, among other rulings, the 1996 Virginia Military Institute decision, which determined the state’s exclusion of women from the school violated the right to equal protection under the 14th Amendment. Scalia, in his dissent, wrote the decision was creating a new Constitution, not keeping to the original meaning of the U.S. Constitution.

Asked by Klobuchar whether the ruling was based on the original meaning of the Constitution, Gorsuch kept his views to himself and said, “The majority in that case argued that it was.” Gorsuch repeated his view the concept of equal protection under the law “is quite significant.”

When the Minnesota Democrat asked Gorsuch whether he’d apply that approach to minority groups, such as women, LGBT people and racial minorities, Gorsuch replied, “A good judge applies the law without respect to persons. That’s part of my judicial oath.”

Seemingly unsatisfied with the response, Klobuchar pressed Gorsuch further, prompting him to reply, “I don’t take account of the person before me. Everyone is equal under the eyes of the law.”

The reluctance of Gorsuch to offer his views during the confirmation process is typical of nominees seeking confirmation to the Supreme Court. As other nominees have done in the past, Gorsuch said disclosure of personal views or the appropriateness of a particular decision would suggest a bias on those issues if they came to him after winning confirmation.

Other decisions on which Gorsuch had no comment included the Roe v. Wade decision, the Heller decision affirming the Second Amendment right to own a firearm in D.C. and the Citizens United case allowing unlimited contributions from corporations and unions to political campaigns.

On rare occasions during the hearing, Gorsuch was more direct. Referencing Trump’s pledge to appoint only justices who’d overturn a woman’s right to have an abortion, Sen. Lindsay Graham (R-S.C.) asked Gorsuch if he made any private commitments to Trump to overturn Roe v. Wade, but the nominee replied he didn’t and was not asked to do so.

“I would have walked out the door,” Gorsuch said. “That’s not what judges do.”

A group of 21 LGBT organizations led by Lamdba Legal signed a joint letter to the Senate Judiciary Committee last week declaring their opposition to the nominee and urging rigorous questioning during the confirmation process.

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.

When asked by Sen. Orrin Hatch (R-Utah) to respond to criticism over the op-ed, the nominee said he believes the courts, in fact, are a “very important place for the vindication of civil rights,” but in many cases they aren’t appropriate for change.

“I can report to you, having lived longer, as I did report to you in 2005 that the problem lies on both sides of the aisle, that I see lots of people who resort to the court more quickly than perhaps they should,” Gorsuch said.

Much of the discontent over Gorsuch is also related to his 11th Circuit decision in the Hobby Lobby case, when he ruled the Religious Freedom Restoration Act affords “religious freedom” protections to not just people, but corporations, and the business chain could refuse health insurance to female employees that covered contraception. Gorsuch joined a similar decision against the Obamacare contraception mandate in the Little Sisters of the Poor case.

At a time when many businesses and individuals are asserting civil rights laws prohibiting anti-LGBT discrimination unfairly penalize their religious beliefs, some LGBT rights supporters fear Gorsuch could apply that “religious freedom” reasoning in those cases to institute carve-outs for anti-LGBT discrimination.

Under questioning from Durbin, Gorsuch walked through his reasoning in the Hobby Lobby case, maintaining his ruling is based on the belief the U.S. government could make other accommodations for employees seeking contraception other than employer-based health coverage.

“Does the government have a compelling interest in the ACA in providing contraceptive care? The Supreme Court of the United States said, ‘We assume yes. We take that as given,” Gorsuch said. “The question becomes is it narrow tailored to require the Green family to provide it. The answer there the Supreme Court reached in precedent binding on us now, and we reached in anticipation, is no, that wasn’t as strictly tailored as it could be because the government had provided different accommodations to churches and to other religious entities.”

Other LGBT criticism over Gorsuch relates to his decisions on transgender rights. In 2015, Gorsuch joined an 11th Circuit decision against a transgender inmate who alleged she was denied transition-related hormone therapy and unfairly housed in an all-male facility. In 2009, Gorsuch also joined an unpublished opinion finding the provision against sex discrimination under Title VII of the Civil Rights Act of 1964 doesn’t apply to transgender people.

Jim Obergefell, the lead plaintiff in the case that brought same-sex marriage nationwide, wrote in an op-ed for Time magazine on the second day of the Gorsuch hearings he opposes the nominee on the basis that he could undermine LGBT rights, including same-sex marriage, at the Supreme Court.

Noting the narrow 5-4 marriage decision was written by U.S. Associate Justice Anthony Kennedy, who was only confirmed to the Supreme Court after the Senate rejected President Reagan’s nomination of anti-LGBT judge Robert Bork, Obergefell wrote, “we must be as cautious as we were in 1987.”

“As during the Bork hearings, we must again demand that the next justice appointed to the Supreme Court of the United States continue to uphold our Constitution — including equal protections for LGBTQ people under the law,” Obergell wrote. “Donald Trump, in nominating Neil Gorsuch, noted his desire to pick a justice in the mold of Antonin Scalia. That should send chills down the spine of everyone who cares about equality and civil rights.”

Eric Lesh, fair courts director for Lambda Legal, said Gorsuch’s hearing did nothing to allay concerns about the his potential confirmation to the Supreme Court because he “refused to answer very fundamental questions.”

“He kept dodging and weaving and running away from his record, which is clearly hostile to the rights of LGBT people and people living with HIV,” Lesh said. “So, we need answers, and that doesn’t change Lambda Legal’s conclusion that based on a comprehensive review of his record, his views on civil rights issues, on LGBT equality are fundamentally at odds with the notion that our community is entitled to equal dignity, justice, liberty under the law.”

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Cuba

When impunity meets history

Raúl Castro indicted for alleged role in shooting down Brothers to the Rescue aircraft

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Former Cuban President Raúl Castro (Photo by Golden Brown/Bigstock)

The scene would have seemed impossible only a few years ago.

The name of Raúl Castro Ruz appearing formally inside a United States federal criminal indictment. Cuba’s former general of the Army, for decades one of the most powerful figures inside the Havana regime, accused in connection with the shootdown of the Brothers to the Rescue aircraft and the deaths of American citizens in 1996. And all of it unfolding in Miami, inside the Freedom Tower, on May 20.

That detail matters.

Because this indictment arrives at one of the most fragile and politically tense moments in recent relations between Washington and Havana. It comes as Cuba faces deep economic collapse, growing political exhaustion, mass migration, blackouts, and increasing public frustration both inside and outside the island. It also arrives on a date carrying enormous symbolic weight for Cuban exiles — the anniversary of the founding of the Cuban Republic in 1902.

But the true significance of this moment goes far beyond symbolism.

What happened in Miami represents something much larger: the collapse of the idea that certain men would never face accountability.

For decades, Raúl Castro embodied the permanence of revolutionary power in Cuba. Defense minister. Military strategist. The man who oversaw the armed forces for generations. One of the central architects of the Cuban political and security apparatus built alongside Fidel Castro. A figure many believed would leave this world untouched by any court, shielded forever by power, time, and history itself.

Today the image is very different.

Today his name appears inside the language of American criminal prosecution.

And that changes the historical dimension of this case completely.

Because this is no longer simply a political accusation voiced by the Cuban exile community. It is now a formal federal criminal indictment publicly announced by the United States government against one of the highest-ranking figures in the history of the Cuban regime.

The setting itself carried enormous meaning.

The Freedom Tower is not just another building in Miami. For generations of Cuban exiles it represents memory, displacement, survival, and the beginning of a new life after fleeing Cuba. Thousands of Cubans passed through those doors after escaping the revolution. Families arrived carrying fear, uncertainty, grief, and hope all at once. Announcing these charges from that location transformed the moment into something far deeper than a legal proceeding.

And the people witnessing it were not only members of the exile community.

Among those present were relatives of the young men killed nearly 30 years ago. Families who spent decades waiting to hear words they feared might never come. Families who carried the weight of loss while believing the men responsible would never be formally accused by any court.

That emotional weight still surrounds this case.

On Feb. 24, 1996, two civilian aircraft operated by Brothers to the Rescue were shot down over the Florida Straits by Cuban military jets. Armando Alejandre Jr., Carlos Costa, Mario de la Peña, and Pablo Morales were killed. The flights were connected to humanitarian rescue efforts searching for Cubans attempting to flee the island during the migration crisis of the 1990s.

Those aircraft were not military bombers.

They were not attacking Cuba.

They were civilian planes associated with rescue operations involving Cubans risking their lives at sea.

That reality has always shaped how this tragedy lives inside the memory of the Cuban exile community.

For many, this was never viewed simply as a geopolitical conflict between hostile governments. It was seen as the use of military force against civilians connected to humanitarian missions during one of the darkest chapters in modern Cuban migration history.

But for many Cubans, the indictment reaches far beyond the Brothers to the Rescue case itself.

It touches decades of unresolved pain tied to one of the central figures behind Cuba’s military and political system.

It reaches mothers who buried sons lost in compulsory military service or in distant wars they never chose to fight. Families who spent years believing promises that were never fulfilled. Political prisoners who disappeared into silence. Relatives who watched loved ones die trying to flee the island.

And for many LGBTQ Cubans, the moment carries another layer of historical weight.

Long before official campaigns promoting tolerance and inclusion emerged from within the Cuban government, there were years of persecution, fear, forced silence, and humiliation carried out under the revolutionary system itself.

The UMAP labor camps remain one of the deepest scars in modern Cuban history. Gay men, pastors, religious believers, artists, and others considered incompatible with the revolutionary ideal were sent away under the language of “re-education” and forced labor.

In recent decades, public gestures toward LGBTQ inclusion promoted by figures close to the Cuban leadership attempted to project an image of progress and openness to the international community. But for many survivors, and for many Cuban LGBTQ people, those gestures never erased the trauma or the historical responsibility tied to the same structures of power that once persecuted them.

For many, acknowledgment without accountability still feels painfully incomplete.

That is why this indictment resonates so deeply today.

Because it arrives while Cuba once again faces profound national crisis. The island is losing entire generations through migration. Public frustration continues to grow. Economic collapse shapes daily life. And the revolutionary narrative that once projected permanence and control appears increasingly eroded by reality itself.

Against that backdrop, the image emerging from Miami becomes even more striking.

A man once viewed as untouchable by history now formally accused by the United States government and legally transformed into a fugitive wanted by American justice.

History moves slowly until suddenly it does not.

And for many Cubans, both on the island and throughout the diaspora, what happened today inside the Freedom Tower felt like witnessing something they once believed they would never live long enough to see.

As a Cuban, as an immigrant, and as someone who has lived close to that pain, one thought keeps returning tonight:

Justice takes time.

But when it finally arrives, it arrives with history behind it.

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Comings & Goings

Delaware governor honors Peter Schott

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Peter Schott

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected]

Congratulations to Peter Schott on being honored by Delaware Gov. Matt Meyer on National Honor our LGBTQ Elders Day.

Schott is a prominent LGBTQ advocate and seasoned political strategist who has spent decades advancing civil rights at the national and state levels. Following a distinguished 25-year career as a staff assistant in the U.S. House of Representatives, Schott leveraged his extensive legislative expertise to help organize the National Stonewall Democrats, serving as an influential member of its national board. 

After moving to Delaware in 2002, he became a foundational figure in the state’s LGBTQ political landscape, co-founding the Delaware Stonewall PAC, (now Stonewall Delaware) to champion the election of pro-equality candidates. His strategic lobbying and community organizing were instrumental in the successful passage of Delaware’s landmark non-discrimination, civil union, and marriage equality laws. A former member of the State Human Relations Commission, he remains a vital voice for the LGBTQ community in the Mid-Atlantic, continuing to document and drive social progress through his activism and writing. Schott currently serves as vice chair of the Delaware Democratic Pride Caucus, and a board member of Speak Out Against Hate (SOAH). He was a delegate to two Democratic National Conventions.

He earned a bachelor’s degree in Political Science, New York University; and a master’s of Public Administration degree from American University.

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Congress

Eight Democrats break with party as House advances ‘Don’t Say Trans’ bill

Measure not expected to pass in Senate

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(Washington Blade photo by Michael Key)

The U.S. House of Representatives passed a federal “Don’t Say Trans” bill on Wednesday, attempting to force teachers to out transgender students nationwide.

The bill, House Resolution 2616, also called the “Stopping Indoctrination and Protecting Kids Act,” would require schools to get parental consent before allowing students to use their preferred, rather than originally assigned, gender markers, pronouns, or preferred name on any school form, and to use any sex-based accommodations, including locker rooms or bathrooms.

The bill amends Section 8526 of the Elementary and Secondary Education Act of 1965, legislation that allows for federal aid to help elementary and secondary education programs — particularly those under its lowest-income Title I-A program — to stop allocating funds to any education that teaches concepts “related to gender ideology.”

This is directly related to Executive Order 14168, also known as the “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” order, one of President Donald Trump’s first executive orders of his second term. It requires the federal government to recognize only sex assigned at birth and dismiss gender identity rather than sex.

The bill was sponsored by U.S. Rep. Tim Walberg (R-Mich.) and passed by a 217-198 margin. The vote fell mostly along party lines; however, eight Democrats voted for its passage. They were U.S. Reps. Henry Cuellar (D-Texas), Donald Davis (D-N.C.), Cleo Fields (D-La.), Laura Gillen (D-N.Y.), Vicente Gonzalez (D-Texas), Marcy Kaptur (D-Ohio), Marie Gluesenkamp Perez (D-Wash.), and Eugene Vindman (D-Va.).

Proponents of the bill argue a child’s gender identity should be directed by parents at home rather than in public schools.

Critics say this is dangerous and will force students to be outed by their teachers to parents — some of whom may not be supportive of their gender identity — which could lead to violence or possibly conversion therapy.

California Congressman Mark Takano, chair of the Congressional Equality Caucus, spoke on the House floor while the bill was being debated. 

“Republicans claim to be the party of small government, but they have no problem bringing the full force of the federal government down against children. The GOP thinks they can legislate transgender people out of existence with this inhumane Don’t Say Trans bill, but all they’re doing is making life worse for a small minority of already-vulnerable children,” Takano said. “I spent 24 years as an educator where I worked with hundreds of high school students and their parents. Most children go to their parents when they need help or are struggling — including transgender children — but not all parents are accepting. The forced outing provision of this bill puts teachers in an impossible situation by requiring them to out trans kids to their parents in certain situations — even if the teacher knows the student will likely face physical abuse. Students like these are who Republicans want to put in immediate physical danger with this bill.”

The Washington Blade talked to Tyler Heck, founder and executive director of the trans advocacy organization and Christopher Street Project PAC, following the bill’s passage.

“Most queer kids go to their families when they are figuring out who they are, and then not all queer kids have that option,” Heck told the Blade. “If this became law, it would harm those already vulnerable kids who rely on school as a safe place and might not have a safe place at home.”

They explained this is not about protecting parents’ rights to know what is going on with their children, but rather the weaponization of trans identity that has become a mainstream Republican ideal pushed by the Trump-Vance administration.

“Young people deserve the space to figure out who they are without the federal government interfering in their lives,” they said. “It is beyond the pale, or rather it should be beyond the pale, and has become a norm for Republicans in Congress to villainize kids, because I mean, this bill targets kids, it’s in the name of the bill, and it’s in the implications.”

Heck continued, saying that amid the rising cost of everyday necessities — from gas to groceries — and while the Trump-Vance administration continues to defund programs intended to help the most vulnerable Americans while creating slush funds for political allies, this is not what Congress should be focusing on.

“At a time when people are really struggling, and politicians need to be focused on lowering costs, they’re using queer and trans kids as political pawns,” Heck said. “They want to divide and conquer this country, and we need to stand up against them and unite behind values of inclusion and of trust in our teachers.”

David Stacy, the Human Rights Campaign’s vice president of government affairs, provided a statement to the Blade.

“Trans kids are not a political agenda — they are students who deserve safety and affirmation at school like anyone else,” Stacy said. “Despite the many pressing issues facing our nation, House Republicans continue their bizarre obsession with trans people. HR 2616 does not protect children. It targets them. This bill is cruel, and we’ll continue to fight to ensure it never becomes law.”

The bill will move to the U.S. Senate in the coming days and weeks, but it must first be reviewed by a Senate committee before leadership schedules it for a floor vote, where it will need 60 votes to pass.

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