A few days ago I wrote about Donald Trump’s Supreme Court nominee, Neil Gorsuch, suggesting that, considering his judicial philosophy, it’s likely he’d be perfectly fine with state sodomy bans, which the Supreme Court threw out in the Lawrence v. Texas case in 2003.
As NPR’s Nina Totenberg and Lauren Russell noted, Gorsuch is a “self-proclaimed disciple of [the late Justice] Scalia’s crusade” of originalism ― taking the Constitution as it was literally intended by those who wrote it in its time. Gorsuch reveres Scalia, who many of us remember for his blistering dissent in Lawrence, using originalism to argue that states should have the right to ban sodomy, thus criminalizing homosexuality. We also remember Scalia for many other horrifically anti-gay comments and opinions, including his unhinged dissent in Obergefell v. Hodges in 2015, the landmark marriage equality decision.
So it’s certainly warranted to be concerned about where Gorsuch stands. The response to my piece, however, included criticism from some Gorsuch defenders, including a gay student of Gorsuch’s at the University of Colorado at Boulder, where Gorsuch teaches, who accused me of portraying the judge as homophobic and said such a characterization couldn’t be further from the truth.
But in fact, I specifically stated:
Just because Scalia was rabidly anti-gay, of course, doesn’t mean that Gorsuch is. Indeed, Gorsuch reportedly offered support to one of his own former clerks upon the former clerk’s same-sex marriage in 2014. But that, conversely, doesn’t mean Gorsuch believes the clerk should have had a constitutional right to marry.
Now, a few days later, the New York Times has published an interesting piece by reporter Sheryl Gay Stolberg, with an equally interesting headline,”Gorsuch Not Easy to Pigeonhole on Gay Rights, Friends Say.” The headline is interesting because of the last two words, “friends say.”
A judge’s rulings and judicial philosophy, after all, should not be judged by friends, but rather by legal scholars based on the judge’s writings, comments and decisions. I think most people would agree with that. And the few relevant cases and writings we have to go on should make LGBTQ people very worried about Gorsuch. Yet, Gorsuch has gay friends and colleagues who are quoted in Stolberg’s article, speaking of him as very accepting of them. The implication is that if he’s accepting of them then he’d likely rule in favor of LGBTQ rights while on the high court.
Phil Berg, who went to Harvard with Gorsuch, talks about the “special bond” he and Gorsuch have had for many years, and explains how supportive Gorsuch is of him and his husband: “We have had a standing invitation to stay with Neil and Louise in Denver.”
The former clerk, Joshua Goodbaum, says Gorsuch was “thrilled” for him and his husband when they got married in 2014:
“He was actually kind of syrupy about it. I remember him saying, ‘You’re going to see how wonderful this is for your relationship.’’’
I don’t think I have to point out ― but will ― that all eight of the current Supreme Court justices likely have black friends (and one is black himself), but that doesn’t mean they all uphold affirmative action and voting rights, or that some aren’t downright hostile to laws protecting African-Americans. So, just because a judge is “syrupy” with a friend doesn’t mean it translates to judicial philosophy or court decisions.
But there’s something even more naive and in the realm of wishful thinking about these gay friends’ opinions (unless Gorsuch has told these friends more concrete things that they’re not telling us).
Stolberg notes that Gorsuch’s acceptance of them “leads some friends to wonder if his jurisprudence might be closer to that of Justice Anthony Kennedy, who has carved out a name for himself as the court’s conservative defender of gay rights.” Stolberg quotes Christian Mammen, a San Francisco lawyer who got to know Gorsuch when they both attended Oxford many years ago, stating, “Everybody’s got him pegged as being more Scalia, I’m not sure I see that.”
But here’s the rub: It’s not “everybody” else who has Gorsuch pegged as being like Scalia ― it’s Gorsuch who has willingly, unequivocally pegged himself that way. He gave a major speech about the importance of the late justice and his philosphy last year and, again, publicly adheres, like Clarence Thomas, to Scalia’s philosophy of originalism. Based on that and his decisions, the Times put Gorsuch on a chart as just to the right of Scalia, with only Thomas further to the right. And, much as Gorsuch’s gay friends would like to believe otherwise, Justice Kennedy is not an originalist. In fact, his sound rejection of originalism is what had him lead the court majority in ruling that gays are protected against discrimination in the Constitution, should not be criminalized, and most certainly have the right to marry. As Totenberg and Russell note (bold added for emphasis):
Those disagreements [among conservative justices] were never more apparent than in a series of decisions about gay rights written by the usually conservative Justice Anthony Kennedy...In a decision striking down a Texas law that criminalized private, consensual “homosexual conduct,” Kennedy asserted that the Founding Fathers did not specify all liberties because they expected that list to change.
“They knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Kennedy said while summarizing his opinion from the bench.
“It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter,” he said.
And the New York Times’ respected chronicler of the Supreme Court, Linda Greenhouse, noted recently that Kennedy was nominated by President Ronald Reagan after the Senate voted down Judge Robert Bork, an originalist:
Judge Bork’s insistence that the Constitution must be interpreted in light of the original understanding of its authors, a view Judge Gorsuch is said to share, was a fringe notion in 1987. [During his confirmation hearings] Justice Anthony M. Kennedy reassured the Senate by rejecting originalism; the Constitution’s framers had “made a covenant with the future,” he declared in his confirmation hearing.
Stolberg’s article is comprehensive. While she refers to these friends supporting Gorsuch ― including former Republican National Committee chairman and George W. Bush 2004 campaign manager Ken Mehlman, whom she reports is circulating a letter in support of the nomination ― she also quotes legal scholars and the preeminent LGBT legal group, Lambda Legal, and she looks at Gorsuch’s past cases and writings. Stolberg concludes that Gorsuch would not be with the majority that handed down the most important gay rights decision in history:
If Judge Gorsuch is confirmed, the composition of the court that made up the Obergefell majority will be unchanged. Michael Dorf, a law professor at Cornell who knows Judge Gorsuch in passing — they were both clerks to Justice Kennedy and run into each other at clerk reunions — says gay rights advocates “have reason to be afraid,” based on the existing evidence about Judge Gorsuch.
So, how much does it really matter that Gorsuch has gay friends to whom he has been wonderful on a personal level? Shouldn’t we know where he stands on whether or not LGBT people are protected within the U.S. Constitution and how he will rule while on the Supreme Court?
Let’s not forget that we were told similar things about John Roberts when George W. Bush nominated him to the Supreme Court in 2005. The New York Times at the time reported how he’d done pro bono work for gay groups in the historic Romer v. Evans case before the Supreme Court in 1996 ― the first case in which Justice Kennedy, writing the majority decision, gave LGBT people a victory. We were told Roberts had a lesbian cousin (who even would later attend the Prop 8 arguments at the Supreme Court, along with her partner). But none of that stopped Roberts from writing a full-throated dissent in the Obergefell case.
So, the only way to know about Gorsuch and gay sex ― and marriage equality ― is to ask. I’ve tried, but Ron Bonjean, Gorsuch’s spokesman, did not return repeated email requests for comment. But maybe his friends, like Phil Berg or Ken Mehlman, can simply ask him if he supports Justice Scalia’s position in the Lawrence case, believing sodomy bans are allowed under the Constitution. Gorsuch should not be allowed to dodge by telling us it’s “settled law” either. As columnist Steve Chapman noted:
No Republican has endorsed Gorsuch on the grounds that he would uphold laws against gay sex. But given the chance, why wouldn’t he? If he reveres Scalia and his approach, it would be logical for him to agree that oral and anal sex can be banned. But to admit as much would alarm most Americans — who think that adult partners should be free to do whatever floats their boats. To repudiate Scalia, however, would suggest there is something fundamentally defective in Gorsuch’s entire approach to judging. It would imply that the late justice was not all-wise.
And U.S. senators must ask the question, in private meetings they’re currently having with Gorsuch and during any confirmation hearing ― and demand a clear and unequivocal answer. I’ve stated that Gorsuch’s nomination should be filibustered by Democrats because it is a stolen seat belonging to Merick Garland (even if it means the GOP nukes the filibuster). But certainly if Gorsuch cannot answer a simple question about basic protections for LGBT people in the Constitution, and how his position gels with his judicial philosophy, any senator who cares about LGBT rights must vote against his nomination.
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Correction: A previous version of this article stated that Judge Robert Bork was filibustered by Democrats. In fact he was voted down in a confirmation vote by the Senate, including by several Republicans, 58-42.