LGBTQ groups have come out in strong opposition to the nomination of Neil Gorsuch as U.S. Supreme Court Justice, arguing that both his philosophy and judicial record indicate that he would be even more hostile to cases involving LGBTQ equality than the deceased Justice Antonin Scalia.
In a first for an LGBTQ advocacy organization, the Human Rights Campaign testified before the Senate Judiciary Committee advising against Gorsuch’s nomination. Sarah Warbelow, the organization’s legal director, outlined the multitude of objections or concerns that LGBTQ people have regarding Gorsuch’s past writings, rulings, and his general judicial philosophy.
“LGBTQ people are no stranger to the Supreme Court. We understand the power of the Court to affirm or deny our most basic rights,” Warbelow said in her prepared testimony, as she recounted the story of Jim Obergefell, who had to sue Ohio over its same-sex marriage ban in order to ensure he was listed as the survivor on his husband’s death certificate.
Noting that Gorsuch has previously expressed opposition to same-sex marriage, Warbelow said: “By his own words, Judge Gorsuch admitted he would have forced same-sex couples to the pay the price of inequality for decades to come. That is why Judge Gorsuch can not be given a lifetime appointment to the Supreme Court.”
Warbelow also testified to Gorsuch’s “originalist” philosophy, which has led Gorsuch to question the Supreme Court’s recognition of the fundamental right to personal autonomy, a concept that has served as the basis for multiple LGBTQ rights cases. And despite reports that Gorsuch has personal friends who are LGBTQ, HRC and others believe his philosophy would lead him to make rulings that would be detrimental to LGBTQ plaintiffs or defendants.
One of the rulings for which Gorsuch has been heavily criticized is the Kastl case, in which he ruled against a transgender woman who had transitioned while working at a community college was fired after she began using the women’s restroom, and refused to use the men’s restroom even after being told to do so by the school.
Another ruling is the Hobby Lobby case, which, while not dealing directly with LGBTQ issues, sets a precedent that could potentially allow employers to discriminate or refuse to provide benefits to LGBTQ people or same-sex couples in order to avoid being “complicit” in condoning homosexuality. Such was the case with Aimee Stephens, a transgender woman fired from a funeral home after she transitioned. By adopting the arguments put forth in Hobby Lobby, the judge in the case found Stephens’ employer was within his rights to fire her because of his personal religious belief that it is unacceptable to be transgender.
“We might not agree with every decision a Supreme Court Justice may make,” Warbelow concluded. “But we must believe in their commitment to reaching impartial judgments based upon fact, not political ideology or bias. And they must agree that LGBTQ people have fundamental rights protected by the Constitution and that we, as individuals and as a community, are entitled to equal treatment under the law. We need a Justice who recognizes our basic equality and shared humanity. Judge Gorsuch has never met this bar.”
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But HRC is not the only pro-LGBTQ organization that has taken a stand against Gorsuch. In response to reports that some Senate Democrats have been looking to arrange a deal by which Gorsuch would be confirmed to the court in exchange for Republicans keeping the filibuster in place for use during a future confirmation fight, a coalition of liberal-leaning and progressive groups has warned Democrats to stand firm and keep Gorsuch off the high court, using the filibuster if need be.
“Democrats should reject any deal that allows Neil Gorsuch to be confirmed to the Supreme Court. As Senator Schumer and many, many others have pointed out, it takes 60 votes to get confirmed to the Supreme Court, and Judge Gorsuch clearly didn’t show he deserved that kind of support in his hearings this week,” Marge Baker, the executive vice president of People For the American Way, said in a statement.
“If Neil Gorsuch can’t get 60 votes there’s a clear answer for that: President Trump should engage in meaningful consultation with the Senate and nominate a consensus pick, just as President Obama did when he nominated Merrick Garland. Democrats need to stand firm in this fight and not accept an extreme and ideological nominee now in exchange for hazy promises about the future. Anyone looking for precedent should refer to the case Charlie Brown v. Football.”
Another coalition of 20 progressive groups, including the National Center for Lesbian Rights, also asked Democrats not to cave on Gorsuch’s nomination, writing in a letter to Senate Democrats: “Anything less than a full commitment to resistance, including a filibuster of Judge Gorsuch, would be a betrayal of the communities you represent” — namely, women, communities of color, workers, and LGBTQ people.
By John Riley