We weren’t fooled by Gorsuch, and we aren’t fooled by his clones

Authored by Lambda Legal Fair Courts Project Fellow Yuvraj Joshi.

We hate to say we told you so.

Supreme Court Justice Neil Gorsuch confirmed this past Monday that he is everything we warned he’d be — opposing equal rights for same-sex couples and eroding the separation between church and state.

Now, Donald Trump is trying to stack the federal courts with far-right Gorsuch clones. Two of them — John K. Bush and Damien Schiff — are soon to be voted on by the Senate. And protecting the courts = protecting your rights.

Just three months ago, during his confirmation hearing, then-Judge Gorsuch refused to recognize the equal dignity of LGBT people, and instead let his anti-LGBT record speak for itself. After the hearing, some felt cautiously optimistic that he might not be a far-right conservative, perhaps because of his “special bond” with his “gay friends.”

But we remained unconvinced by his litany of evasive responses about his extreme record, even when peppered with expressions like “gosh,” “golly” and “goodness no.”

If anything, his responses and refusals only confirmed our conclusion that his views were too extreme for elevation to the nation’s highest court.

Neil Gorsuch practiced the art of evasion to get onto the Supreme Court.

Over his career, Judge Gorsuch had a great deal to say about the rights of LGBT people and other marginalized groups. We’ve outlined much of that here.

But over two days of questioning by the Senate Judiciary Committee, he refused to say anything of substance about the equal rights and dignity of LGBT people. “You have been very much able to avoid any specificity like no one I have ever seen before,” Senator Diane Feinstein remarked at the time.

During the hearings, Senator Al Franken pressed then-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.”

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.”

We warned then that giving “weight” to a precedent (a past decision) is not the same as upholding it, and while marriage equality is “absolutely settled law” at this moment, a Justice Gorsuch on the Supreme Court might change that. Sooner than even we expected, Justice Gorsuch seized his first opportunity to roll back LGBT rights.

The Supreme Court on Monday reaffirmed its Obergefell decision, which made marriage equality the law of the land, by making clear that its decision meant what it said — states may not treat married same-sex couples differently from married different-sex couples, including specifically in the issuance of birth certificates to children born to married same-sex parents.

Justice Gorsuch dissented, writing that “Nothing in Obergefell indicates that a birth registration regime based on biology…offends the Constitution… Neither does anything in today’s opinion purport to identify any constitutional problem with a biology based birth registration regime.”

In a mere 90 days, Neil Gorsuch went from calling marriage equality “absolutely settled law” to questioning whether marriage equality really requires equal treatment for married same-sex couples.

But Justice Gorsuch is just the tip of the iceberg, and like an iceberg, the bulk of the threat lies below the surface, obscured from public view.

Tomorrow, the Senate Judiciary Committee’s agenda includes consideration of the nominations of the first batch of Donald Trump’s nominees to the federal courts. Trump has once again nominated two individuals with records replete with anti-LGBT views and homophobic rhetoric of a bygone era. As a result, numerous allies joined Lambda Legal in calling on the Senate Judiciary Committee to reject the nominations of John K. Bush and Damien Schiff.

Like Gorsuch, Bush and Schiff have anti-LGBT records.

For a decade, Mr. Bush hid behind a “secret” online identity to post extensive rants attacking people with whom he disagreed, often using crude language and insults. While he claims to regret it now, he had no problem using the term “faggot” in a public address. He has also made public statements endorsing the views of opponents of marriage equality for same-sex couples, and in 2008 compared abortion to slavery and Roe v. Wade to Dred Scott, writing, “The two greatest tragedies in our country — slavery and abortion — relied on similar reasoning and activist justices at the U.S. Supreme Court …”

Using even more direct language than Mr. Bush, Mr. Schiff has stated for the record his conviction that the Supreme Court had no basis for striking down laws criminalizing same-sex relationships. He “strongly disagrees” with Lawrence v. Texas, Lambda Legal’s landmark case striking down sodomy laws nationwide, because he “can find no historical or precedential basis, pre-1868” for recognizing gay people and relationships. He has also criticized efforts to prevent bullying of LGBT students and referring to the efforts as “teaching gayness in schools,” and has objected to the suggestion that “homosexual families are the moral equivalent of traditional heterosexual families.”

Bush and Schiff are taking a page from Gorsuch’s playbook.

When asked about the constitutional right to marry for same-sex couples, Mr. Bush responded that “Obergefell is settled as a precedent of the Supreme Court.” We now know what “settled” meant to Neil Gorsuch, and it does nothing to alleviate our concern that Mr. Bush would roll back LGBT rights if presented with opportunities to do so.

Repeating the same script, Mr. Schiff refused to answer direct questions about his statement suggesting that same-sex couples are morally inferior to different-sex couples. He instead responded, “The Supreme Court has held that same-sex couples have the same access to legal marriage as do opposite-sex couples,” adding that his personal views “would not be relevant” to his role as a judge.

We’ve heard all this before. We weren’t fooled then, and we aren’t fooled now.

That’s why we are opposing the nominations of John K. Bush and Damien Schiff.