The Legal Department at HRC took a deep dive into Neil Gorsuch’s 76-page written response to questions from the Senate Judiciary Committee. After examining both his questionnaire responses and his history of rulings against the LGBTQ community, they layout why Gorsuch remains a dangerous nominee for LGBTQ people.
Post submitted by HRC Law Fellow Jim Shygelski
This week, Supreme Court nominee Neil Gorsuch proved - yet again - why he is unfit to serve on the nation’s highest court.
In his seventy-six page Questions for the Record (QFR) Responses to Congress, Gorsuch provided troubling answers that eerily predict how he would treat crucial civil rights litigation if confirmed. When asked about his views on civil rights and, specifically, the LGBTQ community, Gorsuch offer no comments that reflect an ability to render compassionate, impartial, and inclusionary decisions when interpreting the Constitution. His brief, dismissive answers in response to some of the most pressing civil rights questions facing jurists today are a stark departure from the full and complete responses historically provided by nominees to the Supreme Court.
Senator Christopher A. Coons (D-DE) specifically asked Gorsuch if he felt “the Fourteenth Amendment require[s] that states treat gay and lesbian couples equally to heterosexual couples?” Gorsuch declined to offer his own thoughts, instead stating only that the Supreme Court has previously held “gay and lesbian couples have a constitutionally protected right to engage in consensual relations and to marry.” When directly asked whether the Equal Protection Clause of the 14th Amendment prohibits discrimination on the basis of gender or sexual orientation, Gorsuch cited three Supreme Court cases that led to the development of “intermediate scrutiny” for gender discrimination claims, yet - in the same answer - refused to address the Constitutional rights of LGBTQ people, merely stating the Supreme Court has invalidated state laws implicating sexual orientation.
While he did refer to rights previously affirmed by the Supreme Court, these are the very rights the Court - including Gorsuch - could potentially take away in future decisions. This is a real fear, especially given then-candidate Trump’s early campaign promises to appoint a justice in the mold of the late Antonin Scalia, who was dedicated to overturning important decisions like Roe v. Wade.
Gorsuch’s responses also reflected the Judge’s long history of prioritizing businesses and individual beliefs over basic civil rights. When asked about the “problem of complicity” he wrote about in the Hobby Lobby case and the right of adoption agencies and restaurant owners to “refuse to serve same-sex couples because a belief that homosexuality is sinful,” Gorsuch refused to answer whether this blatant discrimination was permissible, stating only that ethical obligations prevented him from commenting on issues live with dispute that could come before the Court.
Equally troubling was Gorsuch’s refusal, on five separate occasions, to answer whether transgender individuals are afforded equal protection under the Constitution and whether Title IX protects transgender students from discrimination on the basis of sex in public schools. In each instance, Gorsuch evaded the question with the same language on judicial ethics, stating that he was prevented from commenting on issues that would likely come before the Supreme Court.
These non-answers fail to address whether Gorsuch believes that LGBTQ individuals are entitled to the full breadth of rights guaranteed under the Equal Protection Clause. They also leave open the possibility for continued discrimination in areas like housing, employment, and public accommodations. Even more troubling is the Judge’s failure to deviate from his earlier decisions that expressly denied rights and protections to members of the LGBTQ community. Gorsuch affirmed in these answers that his nomination serves only as a rubber stamp for the Trump administration as it continues to strip away anti-discrimination protections in favor of exclusionary and unconstitutional policies.
HRC continues to strongly oppose the nomination of Judge Gorsuch to the Supreme Court, taking the unprecedented act of calling for a no-vote and filibuster against Gorsuch’s nomination, and sending our Legal Director, Sarah Warbelow, to testify against Gorsuch’s confirmation based on his deplorable record in denying the LGBTQ community basic rights.
We have no reason to believe that Gorsuch will be a fair advocate for LGBTQ Americans and we urge senators to vote “no.”
The full copy of the Judge Gorsuch’s QFR Responses is available here.