QUEER VOICES
02/07/2017 09:27 am ET Updated Feb 12, 2017

Why Neil Gorsuch Likely Believes It's Perfectly Fine To Ban Gay Sex

Whether or not he's a homophobe, Gorsuch is an originalist like Scalia.
Joshua Roberts / Reuters

Donald Trump’s nominee for the Supreme Court may be all mild-mannered and cuddly, but that doesn’t mean he wouldn’t in a heartbeat deny your very existence under the Constitution if you happen to be queer.

Neil Gorsuch has been presented as being ideologically in the mold of his self-described icon, the late Justice Antonin Scalia, who was a flame-throwing homophobe and surely the most anti-LGBTQ force ever on the U.S. Supreme Court. Gorsuch gave a speech last year praising Scalia, and he admittedly cried his way down a mountain while skiing the moment he found out Scalia had died early last year.

Just because Scalia was rabidly anti-gay, of course, doesn’t mean that Gorsuch is. Indeed, Gorsuch reportedly offered support to one of his own former clerks upon the former clerk’s same-sex marriage in 2014. But that, conversely, doesn’t mean Gorsuch believes the clerk should have had a constitutional right to marry. Gorsuch may or may not find homosexuality icky, like Scalia did. But, like Scalia, he defines himself as an originalist, believing the Constitution should only be taken with the literal intentions of those who wrote it in the time it was written ― and, as Scalia might say, there’s not a discussion in the Constitution about anal sex. 

In his blistering dissent in the 2003 Lawrence v. Texas case which threw out sodomy laws, Scalia ranted that the majority had “signed on to the so-called homosexual agenda,” which he claimed was “eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Whatever he, or anyone, thought of homosexuality, Scalia, relying on originalism, believed the states should be able to decide what behavior is morally ― and legally ― acceptable, and what is not. Columnist Steve Chapman thus pondered where Gorsuch stands: 

No Republican has endorsed Gorsuch on the grounds that he would uphold laws against gay sex. But given the chance, why wouldn’t he? If he reveres Scalia and his approach, it would be logical for him to agree that oral and anal sex can be banned. But to admit as much would alarm most Americans — who think that adult partners should be free to do whatever floats their boats. To repudiate Scalia, however, would suggest there is something fundamentally defective in Gorsuch’s entire approach to judging. It would imply that the late justice was not all-wise.

Writing in National Review in 2005, then as a Washington lawyer, Gorsuch agreed with Scalia that certain civil rights of minority groups should be left to the voters and legislatures, and he used marriage equality as an example. He displayed a will to discriminate in joining an opinion in the Hobby Lobby case, backing religious exemptions, while he was on the 10th Circuit Court of Appeals (a decision upheld by the Supreme Court in a 5-4 split in 2014). “All of us face the problem of complicity,” Gorsuch wrote, opining that the government shouldn’t compel people with “sincerely held religious beliefs” to be complicit in “conduct their religion teaches them to be gravely wrong.”

If asked the question about sodomy in a confirmation hearing, however, Gorsuch, smooth and camera-ready, would likely deflect, as court nominees often do, or maybe tell us something about the sodomy and marriage equality decisions being “settled law” ― which of course is only settled until justices unsettle it again.

Gorsuch’s nomination should be blocked, since the seat is a stolen one that belongs to Merrick Garland. Democrats must filibuster his nomination and dare the GOP to nuke the filibuster ― and unleash an even bigger movement on the streets against Trump than the massive one we’ve seen.

But even if not for that reason, no one “in the mold’ of Scalia, whether he or she be as loudly bigoted as the late justice was or not, should be put on the Supreme Court again. That a question about the right to be gay, and to have sex with another adult within the privacy of one’s home, even has to be asked of a nominee at all in 2017 ― let alone likely deflected by the nominee ― should itself be a disqualifying.

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