Neil Gorsuch was sworn in as the 113th Supreme Court Justice on April
10, 2017. As a nominee in Neil Gorsuch’s hearing before the United States
Senate he said that the law making same-sex marriage legal was “absolutely
settled law” but added “there is ongoing litigation about its impact and its
application right now”. Beyond that he said he could not share his personal
views.
When asked during his confirmation hearing in the Senate Judiciary
Committee if he would support the rights of gays and lesbians he said, “No one
is looking to return us to horse and buggy days. We’re trying to interpret the
law faithfully, taking principles that are enduring and a Constitution that was
meant to last ages and apply it and interpret it to today’s problems”.
Earlier, Gorsuch was asked about the anti-gay views of his mentor at
Oxford. Gorsuch said one only need to look at his record to see his views. When
asked: “What about LGBTQ individuals?” Gorsuch snapped back: “What about them?
They’re people.” “I’ve tried to treat each case and each person as a person,
Gorsuch added, angrily, “not a ‘this kind of person,’ not a ‘that kind of
person’ – a person. It is a radical
promise in the history of mankind.” When asked if that refers to sexual
orientation, Gorsuch snapped, “the Supreme Court of the United States has held
that single-sex marriage is protected by the Constitution.”
Both conservative originalists and liberal originalists have concluded
that the 14th Amendment protects same-sex couples’ right to marry. But Gorsuch
appears to disagree. In a 2005 National Review, Gorsuch mocked the court battle
for same-sex marriage as a political fight dressed in constitutional garb. His
comments on same-sex marriage itself are discouraging enough that it seems safe
to assume he’s a skeptic of related rights and privileges. And his desire to
accommodate corporations’ religious beliefs – even when they burden employees—raises
the possibility that he would let religious businesses discriminate against
same-sex couples.
Justice Gorsuch will probably not position himself as an openly
anti-LGBTQ culture warrior in the mode of Justice Samuel Alito. But his more
pleasant demeanor will not change the impact of his votes. And barring some
kind of profound jurisprudential evolution, Gorsuch should be a consistent vote
against gay and trans rights. From questioning the constitutional necessity of
same-sex marriage to accepting pretextual defenses of trans bathroom exclusion,
Gorsuch has repeatedly declined to defend the equal dignity of LGBTQ people.
For a conservative, he may stake out some admirably unorthodox positions on the
bench. But an embrace of LGBTQ rights will not be one of them.
