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5 Urgent Questions Donald Trump’s Supreme Court Nominee Refused to Answer

Judge Neil Gorsuch at his confirmation hearing on Wednesday, March 22, 2017.

Authored by Lambda Legal Fair Courts Project Fellow Yuvraj Joshi.

Over two days of questioning by the Senate Judiciary Committee, Judge Neil Gorsuch, Donald Trump’s nominee for the Supreme Court, consistently refused to recognize the equal dignity of LGBT people, letting his anti-LGBT record speak for itself and confirming our conclusion that his views are too extreme for elevation to our nation’s highest court.

Here are our five key takeaways from Judge Gorsuch’s responses and refusals.

Would he rule to roll back marriage equality?

During the hearings, Sen. Al Franken pressed Judge Gorsuch about marriage equality, which was upheld by the Supreme Court in the 2015 decision Obergefell v. Hodges. Judge Gorsuch called it “absolutely settled law,” but then immediately qualified his statement: “There’s ongoing litigation about its impact and its application right now.”

Sen. Chris Coons asked Judge Gorsuch whether he agreed that the right of privacy — and, in particular, the right to make “the most intimate and personal decisions” recognized by the Supreme Court in the Casey decision (decided in 1992) — is binding law.

Judge Gorsuch refused to say that it was. Sen. Coons pressed the issue, reminding Judge Gorsuch that two important LGBT cases, Lawrence v. Texas and Obergefell v. Hodges, relied on that language in Casey when vindicating LGBT claims to form intimate relationships and to marry. Judge Gorsuch still refused to give a clear answer.

Does he believe religion gives you a free pass to disregard laws?

As we’ve noted elsewhere, before the now-infamous Hobby Lobby case reached the Supreme Court in 2014, it was heard by U.S. Court of Appeals for the Tenth Circuit, where Judge Gorsuch sits. His concurring opinion in that case set forth an extreme view that would authorize sweeping religious exemptions from laws.

When questioned about his 10th Circuit Hobby Lobby opinion, Judge Gorsuch appealed to the purportedly “very, very strict” law in this area without explaining why his analysis departed from the religious freedom law’s test. Applying this test, the Supreme Court found it necessary to balance the business owners’ religious liberty claim against Congress’s interest in protecting women’s health. By contrast, Judge Gorsuch’s opinion made no attempt to acknowledge and to balance the different interests.

Indeed, Sen. Richard Durbin wondered aloud whether Judge Gorsuch had considered the consequences of his opinion for “60 million people [who] have their health insurance, and their family planning, and their religious beliefs, denigrated, downsized to the corporate religious belief, whatever that is.”

Would he uphold landmark decisions protecting LGBT people and rights?

Only the Supreme Court can overrule its own past decisions (precedent), as it did in Lawrence when it declared that its decision in Bowers v. Hardwick — which allowed states to criminalize private consensual sex between gay people — was “wrongly decided.”

Every time Judge Gorsuch was asked about his view on landmark equality decisions, he gave the same obviously rehearsed answer: that it is a “precedent of the Supreme Court” that is “due all the weight of a precedent of the Supreme Court.”

But giving “weight” to a precedent is not the same as upholding it. Judge Gorsuch correctly noted that, at this moment, marriage equality is “absolutely settled law.” A Justice Gorsuch on the Supreme Court, however, might change that. He said nothing to alleviate our concern that he would seize opportunities to roll back LGBT rights if presented with an opportunity to do so.

Judge Gorsuch named factors that shape his view of whether and which Supreme Court precedents are entitled to respect, including the age of a decision, how often it has been reaffirmed by the Court, and the extent of the reliance upon it. This leaves unanswered the question of whether recently vindicated rights, such as marriage equality, are entitled to less respect than other precedent of the Court.

Does his “originalism” deny equal protection under law to women, LGBT people and other marginalized groups?

Judge Gorsuch repeatedly defended his “originalist” judicial philosophy. This philosophy treats the Constitution as frozen in time, meaning that, unless the Constitution has been amended to explicitly protect certain rights, individuals have no more rights today than they did in 1789. This philosophy essentially writes LGBT people out of the Constitution.

Judge Gorsuch evaded answering all questions about how the rights of LGBT people fit under his originalist worldview, simply repeating that “no one is looking to return us to the horse-and-buggy days.” But when Sen. Mazie Hirono asked University of North Carolina law professor William Marshall whether originalism would have produced the positive decisions in leading civil rights cases, including Lawrence v. Texas, Loving v. Virginia, and Obergefell v. Hodges, he answered “no” for each of the cases.

Do the views of his anti-LGBT mentors reflect his own?

Judge Gorsuch expressed deep “reverence” for two Supreme Court justices who authored the most profoundly anti-gay opinions of the past 40 years.

He described Justice Byron White as his “childhood hero,” and added: “I wouldn’t have become a judge but for watching his example.” In the 1986 case Bowers v. Hardwick, Justice White wrote that the Constitution did not confer “a fundamental right to engage in homosexual sodomy.” Fortunately, Bowers v. Hardwick was overruled in 2003 in Lawrence v. Texas, Lambda Legal’s landmark gay rights case in which the Supreme Court held Texas’s “homosexual conduct” law unconstitutional because it violated the liberty rights of individuals.

Judge Gorsuch also admires Justice Antonin Scalia, whose originalist judicial philosophy he shares. In fact, Judge Gorsuch had no qualms about quoting passages from a Justice Scalia decision comparing marriage equality to adult incest and bestiality.

When asked by Sen. Chris Coons about whether these jurists were wrong in their anti-gay opinions, Judge Gorsuch refused to comment and simply repeated that he revered both men.

Judge Gorsuch was also asked by Sen. Richard Durbin about the anti-gay views of his Ph.D. supervisor at Oxford, John Finnis, the first person Judge Gorsuch thanks in his book for “kind support through draft after draft.” Finnis is known for arguing against “the evil of homosexual conduct.”

Judge Gorsuch said one only need to look at his own judicial record to see his views. When Sen. Durbin asked the nominee about his views on LGBT people, Judge Gorsuch snapped, “What about them?” and as the Senator sought to clarify, the nominee retorted, “They’re people.”

What we heard and didn’t hear from Judge Gorsuch told us all that we need to know — he’s an unacceptable choice for a lifetime appointment to the Supreme Court.

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Rachel B. Tiven

Rachel B. Tiven

CEO of Lambda Legal, the country’s oldest & largest legal organization for LGBT & HIV+ people.

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