Tonight, President Donald Trump announced he will nominate Neil Gorsuch, a federal judge currently sitting on the Denver-based United States Court of Appeals for the Tenth Circuit, to fill the now year-old vacancy on the Supreme Court of the United States. The LGBT Bar Association of Greater New York (LeGaL) has serious concerns about this nomination.
In the wake of the Supreme Court’s June 2014 Hobby Lobby decision, applying the protections of the federal Religious Freedom Restoration Act (RFRA) for the first time to a private corporation, LGBT legal advocates raised alarm about the lack of a limiting principle in the ruling for future religious liberty claims. Judge Gorsuch previewed his views on this important legal question by joining a September 2015 dissent to a denial of en banc review in a Hobby Lobby sequel case, putting his name on this eerily limitless proposition: "When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person's free exercise of religion." This concept portends a sharp departure from existing law and could open up a Pandora’s box of discrimination for the LGBT community, including county clerks refusing to issue marriage licenses to same-sex couples, corporations refusing to extend the same benefits to same-sex married couples, companies objecting to covering HIV prevention drugs or transition-related care in their health plans, and employers refusing to hire openly LGBT employees. These are not abstract fears—for the first time, a federal district court judge in Michigan accepted an employer’s RFRA defense to a transgender woman’s Title VII discrimination claim in 2016.
In the past, Judge Gorsuch has also displayed a total lack of sympathy to the LGBT community relying on fair courts to enforce various constitutional rights. He penned an alarming essay in 2005, arguing that constitutional lawsuits should only be saved for “extraordinary cases,” and citing the legal fight to secure marriage equality as, instead, an example of an “overweening addiction to the courtroom.” That troubling mindset calls into question Judge Gorsuch’s commitment to the landmark Romer, Lawrence, Windsor, and Obergefell precedents, at a time when several other Justices making up the pro-LGBT majorities in those cases could leave the Supreme Court soon.
President Trump and Judge Gorsuch also recalled the late Associate Justice Antonin Scalia in their remarks tonight. The LGBT community does not remember Justice Scalia as fondly as President Trump or Judge Gorsuch. In his Romer and Lawrence dissents, Justice Scalia compared gay intimacy to prostitution, heroin use, and labor law violations and gay “conduct” to murder, polygamy, and cruelty to animals. He later also reduced applying straightforward constitutional principles, to extend the fundamental right to marry to same-sex couples, to “the mystical aphorisms of the fortune cookie.” LeGaL certainly hopes Judge Gorsuch, should he be confirmed, will not reinvigorate this shameful part of Justice Scalia’s legacy.
Indeed, Judge Gorsuch could be one-ninth of the final word on the Fourteenth Amendment and our federal antidiscrimination laws for, based on his age, the next thirty to forty years. LeGaL urges our members and supporters to reach out to New York’s U.S. senators, Chuck Schumer and Kirsten Gillibrand, and insist they intensely scrutinize this nominee.