Here�s why 18 LGBT groups are fighting Neil Gorsuch�s Supreme Court nomination
Neil Gorsuch believes LGBT folks are �people,� but does he believe they deserve the same
rights as everyone else?
That question was central to Democratic interrogation of the 49-year-old judge tapped by President
Donald Trump to fill Antonin Scalia�s vacant spot on the U.S. Supreme Court. During his
testimony, the staunchly conservative jurist was asked by Sens. Dick Durbin and Al Franken
how he would rule on marriage rights for same-sex couples from the bench. Echoing Trump�s
sentiments on the issue, Gorsuch referred to Obergefell v. Hodges, the high court�s
2015 ruling that established marriage equality, as �absolutely settled law.� That would
suggest that, if confirmed, he would not overturn the decision if given the opportunity.
�What about them?� Gorsuch replied when further asked for his opinions about LGBT
people. �They�re people.�
Those comments should be a breath of fresh air during a political season when LGBT rights
have constantly been under attack. But what Gorsuch said next has deeply concerned gay
rights advocates, who argue that his confirmation could pose a grave threat to equality. Lambda
Legal and the Human Rights Campaign have opposed his nomination.
After Franken pressed Gorsuch on his views about marriage between same-sex couples, the
judge, currently serving as an appeals judg for the the 10th Circuit, said there are open
questions about how Obergefell v. Hodges should be applied. �There�s ongoing litigation
about its impact and its application right now,� said Gorsuch, who opposed legal recognition
for LGBT couples in his 2004 dissertation. (His adviser at Oxford University, John Finnis,
infamously compared homosexuality to bestality.)
If Gorsuch believes that the ways the Obergefell ruling could be applied are not as �settled�
as the decision itself, that could affect several critical U.S. cases. The Texas Supreme
Court is currently hearing oral arguments in Pidgeon v. Turner; two Houston residents
sued the city because they believe that their taxes shouldn�t fund partner benefits for
same-sex couples. After originally declining to hear that case last year, the court reversed
its decision after a sustained lobbying effort from Texas Lt. Gov. Dan Patrick, Gov. Greg
Abbott, and Attorney General Ken Patton.
�That case should not be taken seriously,� said Jenny Pizer, the law and policy director
for Lambda Legal. �It is before the court because of a campaign pressuring the court
to consider taking the case.�
Although Pizer called legal arguments denying benefits to married same-sex couples �fringe�
opinions, Texas isn�t the only state debating whether legally wedded LGBT people deserve
the same privileges as other couples. A case known as Smith v. Pavan, which was decided
by the Arkansas Supreme Court last year, denied some same-sex partners the right to be on
their newborn child�s birth certificate. Three lesbian couples sued the state�s Department
of Health when the agency wouldn�t allow second parents (the individuals who did not
physically give birth) the ability to be recognized as their infant�s legal guardian.
The court�s ruling ended up favoring the Department of Health.
Sarah Warbelow, the legal director for the Human Rights Campaign, said the Arkansas court
wanted to �draw a distinction between access to a marriage license and then everything
that flows from marriage.� While that verdict has been appealed to the Supreme Court, there�s
no word on whether the nation�s highest court will take up the case.
�It�s a tremendous concern for the entire LGBT community if Judge Gorsuch does not consider
all these rights, benefits and obligations to be a firmly settled area of law,� Warbelow
added.
Warbelow, who testified against Gorsuch�s nomination before Congress last week, believes
that the judge is �actually more conservative than Scalia.� While she said Scalia was
�no friend to the LGBT community,� Warbelow pointed to a handful of favorable decisions
he made concerning queer people. In McCauley v. Sundowner Offshore Services, Scalia sided
with the majority, ruling that laws prohibiting sexual harassment in the workplace still apply
if the parties involved are of the same gender. Warbelow said that Scalia was �interested
in the plain language of the statute� or what one could reasonably determine from how
a law is written.
The problem is that Gorsuch is a strict originalist. As Warbelow explained, this means he believes
that laws �should be read based upon what the drafters of the statute understood the
statute to mean.� This is a problem when it comes to legal benefits for same-sex couples,
as such privileges weren�t initially considered with LGBT people in mind.
Pizer said, though, that following the Supreme Court�s decision in Obergefell v. Hodges,
any debate on that subject should be �moot.�
�The Supreme Court ruling makes clear that decision was not just about marriage licenses,�
Pizer said. �It was about the full range of legal rights and social benefits that come
from being married. The collection of cases that together carry the name �Obergefell�
carried with them a broad range of harms. That litigation was not about marriage licenses
or a technical legal status isolated somehow from all the things that come with being married.�
Jim Obergefell, the plaintiff whose name graces that 2015 case, was not seeking a license
recognizing his relationship with John Arthur, Obergefell�s partner of 21 years. Arthur
died of complications from amyotrophic lateral sclerosis in 2013. John�s widower wanted
to be listed on his longtime love�s death certificate.
Now almost two years after Obergefell won that right, Pizer asserts that it�s �generally
understood� that marriage should �mean the same thing for everyone,� whether it�s
the right to health insurance benefits or inheritance. �That�s what the Supreme
Court said in Obergefell� decision, she said. �Most of the country understands that.�
To Warbelow, the Obergefell ruling is likely safe because of a �five-person voting block�
on the Supreme Court, since the same judges whose votes led to marriage equality two years
ago are still on the bench.
Some gay rights advocates are concerned, however, about cases involving �religious liberty.�
In his majority opinion in the Obergefell case, Justice Anthony Kennedy wrote �to
reassure those who oppose same-sex marriage that their rights of conscience will be protected,�
although his statement does not settle how faith-based objections will be dealt with.
�Justice Kennedy signaled there might be times he thinks people can discriminate,�
Warbelow said.
That could pose a problem in a potential debate over the legality of Mississippi�s House
Bill 1523, which was aimed at permitting conscientious objectors (to marriage equality) to deny service
to LGBT people in the name of religion. The legislation prohibits that state from taking
action against an individual who, for instance, fires an employee for being in a legally recognized
same-sex union or who rejects a lesbian couple�s application to rent an apartment. HB 1523,
which was signed into law in March 2016, additionally called for allowing adoption agencies to cite
a conflict of faith and deny LGBT couples a child. In July this law, however, was struck
down by U.S. District Judge Carlton Reeves, who argued that HB 1523 violated the equal
protection clause under the 14th Amendment. That clause promises all Americans �equal
protection of the laws.�
Should a challenge to this case be heard by the Supreme Court, there�s no indication
that the firewall blocking discrimination against LGBT people would hold fast. As a
member of the 10th Circuit Court of Appeals, Gorsuch ruled in favor of the right to faith-based
objections in Hobby Lobby Stores v. Sebelius. That case concerned whether the retail chain
could legally deny employees contraception coverage as part of its health care insurance
plan. Hobby Lobby won that decision, a ruling that was upheld by the Supreme Court.
�It sets up the idea that people get to have these little bubbles around themselves
and pick and choose which laws to follow based on their religious or moral beliefs,� Warbelow
said. �If you follow that line of reasoning, anyone who acknowledges a same-sex couple
in any capacity is violating their religious beliefs.�
Even if a Supreme Court with Gorsuch on the bench upholds Obergefell v. Hodges, the high
court could still provide a pathway to discrimination against LGBT people. The conservative judge
will face continued questions about his beliefs as Congress considers his Supreme Court nomination.
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