At yesterday’s confirmation hearing, under some tough questioning (finally!) by Senator Al Franken (D-Minn.), Donald Trump’s Supreme Court nominee, Neil Gorsuch, blurted out that marriage equality is, “absolutely settled law.”
Gorsuch, seemingly groomed for this day for years and highly polished, appeared at that moment to be a bit thrown off, only because Franken was pushing hard. With Gorsuch, it seems the only way to get him from being evasive is to hit hard ― risking being impolite ― and hope he becomes slightly frazzled and spills some truths.
In this case, however, the more telling statement came directly after his claim that marriage equality is “settled law,” a term that may have (wrongly) encouraged some progressives and disheartened some social conservatives.
Gorsuch had not used this term in any other discussions of decisions which he said had set major “precedent,” such as Roe. v. Wade or the Heller decision on the Second Amendment. The statement that followed his “settled law” affirmation not only seemed to indicate he realized he went too far, but is the crux of the issues facing LGBTQ equality moving forward and whether same-sex marriage is confined to a kind of second-class marriage or not. I’ll come back to the telling statement that followed the “settled law” comment, but first it’s important to look at how Franken drew Gorsuch out, and then to rewind to some earlier questioning by Senator Dick Durbin (D-Ill.).
Franken had led Gorsuch into this discussion by asking about his views on anti-gay marriage amendments in the states in years past. He referred to the transformation of Gorsuch’s friend, Ken Mehlman, the former Republican National Committee chairman and former George W. Bush campaign manager, who regrets the anti-gay amendments, which were used to help energize the socially conservative GOP base, and has since come out as gay and helped in the fight for marriage equality. Franken asked if Gorsuch had similarly changed his mind on the issue.
Gorsuch said that, as a judge, he couldn’t divulge his personal views on the issue, which “every American has views on.” This was very odd ― and in complete contradiction to what he had told Senator Durbin earlier in the day. In trying to distance himself from his mentor at Oxford, law professor John Finnis, who wrote that homosexuality is akin to bestiality, Gorsuch responded to Durbin by firmly laying out that he has defended civil rights and equality for all people in his decisions and writings over the years ― clearly stating his personal views and not reflexively claiming that as a judge he can’t talk about his personal views. Gorsuch said one only has to look at his record to see his views. Towleroad recounts the exchange from there:
Asked Durbin: “What about LGBTQ individuals?”
Gorsuch snapped back: “What about them? They’re people.”
“Senator, I’ve tried to treat each case and each person as a person, Gorsuch added, angrily, “not a ‘this kind of person,’ not a ‘that kind of person’ — a person. Equal justice under law. It is a radical promise in the history of mankind.”
When asked if that refers to sexual orientation, Gorsuch snapped, “Senator, the Supreme Court of the United States has held that single-sex marriage is protected by the Constitution.”
So, with Durbin, Gorsuch used the landmark 2015 Obergefell decision on marriage equality to try to imply that there was nothing left to talk about regarding LGBT rights, as the Supreme Court had affirmed what he, in a sentence prior, had called “equal justice under the law,” which he said his career has been all about establishing.
Now let’s fast forward to the exchange with Franken again. As I explained, Franken, pushing hard, unnerved Gorsuch a bit. After Gorsuch said that offering his personal views on the issue of marriage equality would “send a misleading view to the American people,” Franken cut in and said, “It’s settled law,” which prompted Gorsuch, seemingly defensively, to respond, “It is absolutely settled law.” But then, perhaps realizing what he’d done, using that term for the first time in these hearings (and preceded by the word “absolutely”), he quickly added, “There’s ongoing litigation about its impact and its application right now and I cannot share my personal views without mistakenly―”
Franken cut in again, realizing it was another dodge and that he had limited time, and moved on to another subject. The exchange, as I said, contradicted his earlier statements to Durbin that the issue was done, with the Obergefell decision, which he implied reflected his quest for “equal justice under the law.”
And the telling statement was Gorsuch’s addition to Franken that there is “ongoing litigation about the impact and application” of the marriage equality ruling that prevented him from giving his opinion. The litigation to which he refers has to do with the “religious liberty” issue I discussed regarding Gorsuch earlier in the week. Anti-LGBT conservatives, realizing how difficult it may be to overturn Obergefell, have moved to a strategy of making same-sex marriage a kind of second-class marriage ― allowing for religious exemptions for businesses, government employees, state-funded adoption agencies and others who don’t support marriage for gays and lesbians. Some are pushing ahead in the courts, in state legislatures, in Congress and via Trump, awaiting a promised religious liberty executive order.
And, as I described in that piece on Monday, Gorsuch, as reflected in his decision in Hobby Lobby, seems primed to allow for those religious exemptions. Thus, don’t be fooled by Gorsuch’s claim that Obergefell is “settled law.” Even if that is true, what’s far from settled is whether LGBTQ people will be singled out among minorities as a group that religious conservatives can wall themselves off from ― getting exemptions from such rulings as Obergefell ―- rendering LGBTQ Americans second-class citizens.
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