SCOTUS Neil Gorsuch on Marriage Equality and LGBTQ Rights

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.

LGBT Lives Net Yet Free, Equal or Secure

The question of what comes after the marriage cases ignores the reality that lesbian, gay, bisexual and transgender people’s lives are not yet free, equal, secure even with the positive outcome of the Supreme Court decisions.

So what should we do now? First, reframe the LGBT political and legal agenda to positively address the life chances and lived experience of every queer person. Second, build infrastructure, coalitions and political strategy to advance LGBT people’s interests in the Southern and Midwestern US. Third, create a political strategy with allies (labor, POC, women) to win and secure progressive outcomes in key states over the next two decades. Fourth, put massive amounts of funds into developing the leadership of young progressives—queer and straight. Fifth, create a specific anti-fascist infrastructure of social media, legal, research and watchdog groups to expose and defeat the right wing culturally and politically.

In sum, the work ahead for queers is to be transformative, not transfixed.

Confused? Spinning around from outrage to glee to WTF? Progressive Supreme Court watchers have good reason to be perplexed. During the past few days we have been stunned, if not surprised, by the stream of awful decisions flowing forth from SCOTUS including the erosion of the right to remain to silent, a further weakening of affirmative action and the evisceration of the Voting Rights Act. Then we greet two happier decisions eroding legal discrimination against same-sex couples in the DOMA and Proposition 8 cases. What’s going on?

It’s tempting to chalk up these split decisions to a divided court in general, and the quirks of one Justice Anthony Kennedy in particular, or to understand these results as the uneven ups and downs of overlapping social movements. Neither of these assessments is wrong. But there is a broader context that we must consider if we want to create a broad and effective movement for social and economic justice.

Since the 1980s, US public policy has moved in a more or less coherent direction—toward the deregulation of corporations, the privatization of social welfare, the strengthening of the security and surveillance functions of the state. While maintaining the formal legal equality won by social movements during the 1960s and ’70s, policy-makers have undercut the substantive, though limited, redistribution of political and economic power accomplished in the US since the 1930s. For instance, rather than continue affirmative steps to democratize public education from pre-school through college, governments at all levels have eroded access in myriad ways, by raising tuition, narrowing curricula and privatizing schools. We still have a public education system open to all, but the experience of schooling is increasingly unequal across divides of race and class. We are barely maintaining the basic right to early-term abortion, but this and other reproductive rights are also increasingly eroding via differential access to reproductive healthcare.

This is the context within which to grasp the logic of the recent Supreme Court decisions. The undermining of affirmative action and the frontal attack on voting rights are based on the formal legal neutrality of supposedly color-blind policy. Such formal equality leaves the history of racism and the current reality of persistent wide racial disparities out of the frame. The decisions on DOMA and California’s Proposition 8 move haltingly toward very limited formal legal equality for same-sex conjugal couples. Marital privilege in general is maintained. Myriad historical and current sources of queer social and economic misery are not addressed—homeless queer youth, elder poverty and isolation, transgender healthcare. Looked at this way, this stream of decisions is basically consistent despite the flip-flopping role of Justice Kennedy.

The implications for the future of LGBT social movements are clear. Sure, when legal inequalities are eroded (the two same-sex marriage cases did not fully eliminate formal inequality) there is cause for celebration. But the history of civil rights struggles in the United States shows us that formal legal equality does not provide more resources, greater political power or better lives. Too often, legal equality is an empty shell that hides expanded substantive inequalities. To move forward toward a better world for queers we need to form broad alliances for the achievement of real social justice: Get money out of politics, fight for universal social benefits (healthcare, child care, retirement) not tied to marriage or employers, expand the power of working people, demand government transparency, go to the root causes of persistent racial inequalities, endorse sexual and gender freedom. Queer people are affected by all of these issues, not only the last ones. We can’t be the mostly single-issue movement that our major organizations have been. We don’t lead single-issue lives.