“Judge Gorsuch’s anti-equality record – from opposing crucial medical treatment for a transgender person to supporting a license to discriminate for private corporations – make him unfit to sit on the nation’s highest court.” said the Human Rights Campaign in a statement.
If approved by the Senate, the 49-year-old jurist – the youngest high court nominee in 25 years – would tilt the bench rightward for likely decades.
Many advances for LGBT rights have come via judicial writ, not legislative victory – such as the overturning of sodomy laws and national legalization of gay marriage – and Gorsuch claims to be opposed to activist judges, at least when advancing causes sexually liberal rather than serving corporate power or religious dogmatists.
“American liberals have become addicted to the courtroom ... as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide,” Gorsuch wrote in 2005.
As part of a right-wing push-back Judge Gorsuch has supported religious exemptions from laws based on “complicity” – the idea that adhering to the law makes the objector complicit in the allegedly sinful conduct of others. In his 10th Circuit Hobby Lobby opinion – allowing a business to withhold contraceptive coverage mandated under Obamacare – he wrote, “All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”
Judge Gorsuch joined a 2015 opinion rejecting arguments made by a transgender prisoner in Oklahoma, who contended the state had violated her constitutional rights by denying her hormone treatment and women’s clothing.
Gorsuch, a graduate of Columbia University, Harvard Law School, and Oxford, is known for being smooth and amiable where Scalia, who Gorsuch idolizes, was contemptuous and irascible. But judicially, the two are cut from the same mold – purporting to use the original language of the Constitution as originally written as their guiding light.
“The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” Gorsuch said in a talk at Case Western Reserve University School of Law in Cleveland.
Lawmakers, he said, “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future....” but “judges should do none of these things in a democratic society.” Rather, they should use “text, structure and history” to intepret a law’s constitutioality, “not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
But these high-falutin principles have been in key instances just covers for positions that Gorsuch, a hard right-winger on social issues and lapdog for corporate power, holds dear.
Though without a record on abortion, it’s likely Gorsuch opposes there being any firm right to have one. In his book, The Future of Assisted Suicide and Euthanasia, Gorsuch opines that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” Presumably, he mentions “private persons” to distinguish from state-sponsored executions and drone killings, for which Gorsuch is unlikely to represent any impediment.
Gorsuch has taken predictable authoritarian positions in other sex and civil liberties cases, voting in support for the right of the state of Utah to force people convincted of sex offenses to hand over all their internet usernames, and embracing the constitutionality of “Jim Crow”-style sex registries, where those convicted of violating sex laws face lifetime public exposure and minute regulations of where they can live and travel.
Gay groups, however, have focused on his decision in the Hobby Lobby case. “Judge Gorsuch’s opinion in the 10th Circuit Hobby Lobby decision is disqualifying,” said Rachel B. Tiven, head of Lambda Legal in New York City. “The Hobby Lobby decision set a terrible and destructive standard for bosses being allowed to meddle in our sex lives and decide whether or not birth control is covered by the employer’s insurance plan.... Even the Supreme Court, affirming that case, acknowledged how dangerous this line of thinking is: it creates a nation in which some religions are obliged to follow the law and others are not.”
Under current Senate rules, Democrats have the power to block Gorsuch if they unite in opposition don’t break ranks, but Republicans have threatened to change Senate rules to allow Gorsuch’s installation with just a majority vote – pressuring Dems to block the nomination now becomes key.