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.

Facebook Donates to Reyes's Campaign

Utah Attorney General Sean D. Reyes petitioned the U.S. Supreme Court recently in a bid to preserve the state’s same-sex marriage ban. Reyes bluntly spelled out the stakes.

"It comes down to this,” the petition states. “Thousands of couples are being unconstitutionally denied the right to marry or millions of voters are being disenfranchised of their vote to define marriage. Either way, the court’s review is necessary, and this case is the right vehicle to do so.”

Calling it, without exaggeration, an “immensely important question,” Utah’s petition seeks review of a 10th Circuit Court of Appeals’ decision that struck down the state’s marriage restrictions. “The issue has been percolating for 40 years,” the petition notes. “Dozens of cases are challenging state marriage laws, and erratic use of stays has created legal chaos.”

In its 2-1 decision in June, the 10th Circuit concluded Utah’s same-sex marriage ban violated constitutional guarantees of equal protection. An amendment to the state’s constitution adopted by 66 percent of voters in 2004 declares that “marriage consists only of the legal union between a man and a woman” and that “no other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect”

In the 2012 primary election in Utah for Attorney General, Reyes challenged Swallow for the position. The Republican primary race was purported to be “one of the dirtiest in years”. Swallow defeated Reyes. Swallow went on to win the general election but then resigned in 2013. Reyes was appointed as Attorney General. He is facing his re-election this fall.

Sean Reyes has openly spoken out against same sex marriage. Not only does he disagree with the LGBT community’s right to equal marriage, he is actively against it. He has said he will “spend whatever it takes” to fight against same sex marriage. He has even gone so far as to hire attorney Monte Stewart, founder of anti-equal marriage legal group Marriage Law Foundation to attempt to overturn a Utah ban on Equal marriage.

In a controversial move, it has been revealed that Facebook has donated $10,000 to Utah Attorney General Sean Reyes’ re-election campaign. Facebook, who made the donation in May, has defended their support of this candidate in a letter to The Huffington Post:

“Facebook has a strong record on LGBT issues and that will not change, but we make decisions about which candidates to support based on the entire portfolio of issues important to our business, not just one...

The question has to be asked – Why Sean Reyes? His aggressive stance on gay marriage not only condemns us, but also actively fights against our right to equality. In answer, Facebook has declared that they do not necessarily support Reyes position on gay marriage, stating – “A contribution to a candidate does not mean that we agree with every policy or position that candidate takes. We made this donation for the same reason we’ve donated to Attorneys General on the opposite side of the issue –because they are committed to fostering innovation and an open Internet”.

Gay Marriage and Obama

Three federal judges have now ruled that state bans on same-sex marriage violate the Constitution’s “equal protection” clause. President Barack Obama seems to disagree.

He has repeatedly stated that, while he personally supports same-sex marriage, the issue should be left to the states. In other words, the nation’s first black president holds a states-rights position on what has shaped up to be the civil-rights issue of this generation.

Most states ban same-sex marriage. And if they are left to work out the issue for themselves in the years and decades to come some will likely reverse their bans, but many won’t. The question will remain: Are same-sex marriages protected under the 14th Amendment?

It’s hard to imagine that Obama, a former constitutional law professor who has cited the 14th Amendment when discussing gay rights, believes that the equal-protection clause does not apply to gay and lesbian couples seeking a government-issued marriage license. More likely, he has taken a go-slow approach to avoid alienating constituencies—and inflaming the opposition.

His caution has been understandable perhaps even helpful in the short run. But it will become increasingly difficult for him to avoid taking a clear stand. Marriage equality is likely to come before the U.S. Supreme Court before the end of his term, possibly within the next year. At that time Obama will have to decide whether to support the plaintiffs.

He should, and he should not wait for the court to force his hand.

The presidential bully pulpit has been a powerful force in acceleration the evolution of freedom and equal rights in America, and the energy with which presidents have used their platform – or not—shapes their legacy.

In 1957, President Dwight Eisenhower declined to speak out in favor of civil rights, saying, “I don’t know what another speech would do about it right now.” In response, Martin Luther King Jr. and the Southern Negro Leaders Conference sent a telegram urging him to “use the weight of your great office to point out to the people the rights of all human beings.”

While a strong case can be made that history has so far under-appreciated Eisenhower’s record on civil rights, his unwillingness to make energetic use of his office is widely accepted as a failure.

President John F. Kennedy is still faulted for waiting two and a half years to fully embrace the cause of civil rights. When he finally did, in an Oval Office speech in June 1963, he cast the issue in terms of morality and American values. And while this may have angered opponents, it inspired more hope than hate. It became a turning point in the civil-rights movement and saved his presidency from history’s harsh judgment.

This Congress is hardly likely to pass a low prohibiting discrimination in the granting of marriage licenses. But that should not stop this president from addressing a controversial question. If Obama believes that the 14th Amendment protects same-sex marriage, he should explain why he has changed his own mind. It is an argument that Americans – who polls show favor legalizing same-sex marriage – are increasingly ready to accept. If he makes the case in a tone of respect toward opponents and if he tempers proponents’ optimism by acknowledging the lengthy nature of civil-rights movements, he can help soften the fallout from the eventual Supreme Court decision, whatever it may be.

For a president so stymied by an obstructive Congress, an Oval Office address on same-sex marriage could be a high point of his tenure. It would also be a fitting way for a barrier-breaking president to secure his place among leaders who have pushed to extend the full rights of the Constitution to all Americans.

Same-Sex Politics

On November 6, 2012 voters in Maine, Maryland and Washington approved same-sex marriage. A historic turning point, it is the first time that marriage for gay men and lesbians has been approved at the ballot box. It had been voted down more than 30 times.

In Minnesota, in another first, voters rejected a proposal to amend the State Constitution to define marriage as between a man and a woman, a measure that has been enshrined in the constitutions of 30 states. The votes meant that same-sex marriage is now legal in nine states and the District of Columbia.

Rights groups said the victories were an important sign that public opinion was changing. Though same-sex marriage remains unpopular in the South, rights campaigners see the potential for legislative gains in Delaware, Hawaii and Illinois.

Same-sex marriage became a reality in the United States in 2004 in the wake of a ruling by the Massachusetts Supreme Court that it was required under the equal protection clause of the state’s Constitution. Prior to 2012, same-sex marriage was also legalized in New York, Connecticut, Iowa, New Hampshire, Vermont and Washington, D.C. Early in 2012, Washington State and Maryland both approved same-sex marriage laws, but neither took effect immediately and were subject to fall referendums.

In early May, North Carolina voted in large numbers for a constitutional amendment that would ban same-sex marriages, partnerships and civil unions, becoming the 30th state in the country and the last in the South to include a prohibition on gay marriage in the state constitution.

Days later, on May 9, President Obama declared for the first time that he supports same-sex marriage, putting the moral power of his presidency behind a social issue that continues to divide the country. His support ended years of public equivocating over the divisive social issue for the president, who previously said he opposed gay marriage but repeatedly said he was “evolving” on the issue because of contact with friends and others who are gay.

For more than a decade, the issue has been a flashpoint in American politics, setting off waves of competing legislation, lawsuits and ballot initiatives to either legalize or ban the practice and causing rifts within religious groups.

The legalization of same-sex marriage in the United States had been a relatively recent goal of the gay-rights movement, but in the wake of the Massachusetts ruling, gay-rights organizers have placed it at the center of their agenda, steering money and muscle into dozens of state capitals in an effort to persuade lawmakers. At the same time, conservative groups pushed hard to forestall or reverse other courts through new laws or referendums.

Proponents of same-sex marriage have long argued that the institution of marriage is a unique expression of love and commitment and that calling the unions of same-sex couples anything else is a form of second-class citizenship; they also point out that many legal rights are tied to marriage. Those opposed to same-sex marriage agree that marriage is a fundamental bond with ancient roots. But they draw the opposite conclusion, saying that allowing same-sex couples to marry would undermine the institution of marriage itself.