We Reviewed All of Judge Gorsuch’s Record. Here's What We Found.

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January 31, 2017

After Donald Trump announced that he was considering nominating Neil Gorsuch, Judge of the 10th Circuit, to the U.S. Supreme Court, Lambda Legal’s Fair Courts Project embarked on a comprehensive review of his judicial record.

We considered the hundreds of opinions authored or co-authored by Judge Gorsuch in the 10th Circuit and analyzed other decisions in which he participated involving LGBT-identified and LGBT-affiliated parties, employment discrimination, reproductive rights, voting rights, criminal justice, rights of detainees, fair courts, or constitutional rights of equal protection, liberty, free speech, or religious exercise.

In previous statements, Trump promised to nominate a Supreme Court justice in the mold of Antonin Scalia. As we have noted in the past, Justice Scalia’s 30-year record on the Supreme Courts reflects a heated and harmful opposition to equal rights for LGBT people and people living with HIV, as well as to racial and reproductive justice. In an interview with the Christian Broadcasting Network, Trump stated that, “I think evangelicals, Christians will love my pick. And will be represented very fairly.”

Below are three instances where Judge Gorsuch’s views on civil rights issues are antithetical to Lambda Legal’s mission and are the basis for opposing his nomination.

  • Hobby Lobby. Judge Gorsuch has supported religious exemptions from laws based on “complicity”—the belief that adhering to the law makes the objector complicit in the allegedly sinful conduct of others.

    Judge Gorsuch’s belief in complicity shaped his understanding of the law in Hobby Lobby, a case in which two for-profit corporations, privately owned by a Christian family, sought to be exempt from parts of the Affordable Care Act’s contraceptive coverage requirements. As he declared from the outset in his 10th Circuit opinion:

    “All of us face the problem of complicity.  All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.  For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. . . . Understanding that is the key to understanding this case.”

    Whereas the Supreme Court decision in Hobby Lobby made concerns about the impact on real people central, Judge Gorsuch did not address the harmful effects of denying access to reproductive healthcare on female employees and dependents. Instead, his sole concern was for the religious objectors who alleged that “ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows.”

    This is a vision of a society where religion prevails over law, and where the concerns of religious parties override the concerns of other citizens. In supporting this vision, Judge Gorsuch’s opinions open the door to all manner of assaults on the civil rights of ordinary citizens – including lesbians, gay men, bisexuals, and transgender people and everybody living with HIV.

    In both its litigation and legislative work, Lambda Legal has fought vigorously to ensure religious liberty is preserved for all, and not used to harm others — especially in access to medical care.

    Lambda Legal filed a friend-of-the-court brief in the 2014 Supreme Court case Burwell v. Hobby Lobby, urging the Court to reject arguments made by for-profit companies that they should be allowed to block their employees’ access to insurance coverage for contraception required by the Affordable Care Act because the companies’ owners claim birth control violates their religious beliefs.

    We also filed a friend-of-the-court brief in the 2015 case King v. Burwell, highlighting the disparate impact that a challenge to the Affordable Care Act will have on people of color living with HIV in the states that have elected not to run their own health insurance exchange.

  • Druley v. Patton. Judge Gorsuch joined a 2015 opinion rejecting arguments made by a transgender woman who was incarcerated that the Oklahoma Department of Corrections had violated her constitutional rights by denying her medically necessary hormone treatment and her request to wear feminine clothing.

    “To date, this court has not held that a transsexual plaintiff is a member of a protected suspect class for purposes of Equal Protection claims. . . . Ms. Druley did not allege any facts suggesting the ODOC defendants' decisions concerning her clothing or housing do not bear a rational relation to a legitimate state purpose. Thus, she has not demonstrated a likelihood of success on her Equal Protection claims.”

  • Liberals’N’Lawsuits. In 2005, Judge Gorsuch wrote an essay, “Liberals’N’Lawsuits,” in which he expressed disapproval of civil rights impact litigation. He wrote in part:

    “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”

    It is telling that Judge Gorsuch saves his criticism for “American liberals,” even as the U.S. Supreme Court routinely hears conservative challenges to constitutionally protected rights. 

    Lambda Legal’s mission is to achieve full recognition of the civil rights of LGBT people and everyone living with HIV. We are entitled to equal protection, liberty and dignity under the law. And we will continue to challenge all barriers in our path to equality – including in courts.

Judicial Independence and the Threat from Special Interests and the Executive Branch

Lambda Legal’s Fair Court Project fights to strengthen judicial independence and expand access to justice for LGBT people and everyone living with HIV. It is deeply concerning that Judge Gorsuch was hand-picked by the Federalist Society and the Heritage Foundation. These rightwing organizations have pushed extreme legal theories that threaten equality and liberty, and they promote a corporate agenda with funding from oil billionaires Charles and David Koch.

The Supreme Court must have open-minded, fair, and impartial justices who will stand up for our Constitutional values and protections for ALL. Justices must be independent and ensure that legislative majorities don’t run roughshod over the rights of vulnerable populations. Our nation’s highest court cannot become a rubberstamp for executive branch actors, including President Trump, when they violate the law or the Constitution.     

How Lambda Legal Evaluates a Supreme Court Nominee

If confirmed, Judge Gorsuch is likely to become the decisive vote on many critical issues important to all of us — including the fundamental rights of LGBT people and everyone living with HIV. Our guiding principle as we examine nominees to the Supreme Court is that our clients, and all civil rights plaintiffs, must have a level playing field when they appear before the Court. Does Judge Gorsuch’s judicial philosophy reflect a commitment to equality and fairness for all? That is the central question for us.

A Supreme Court nominee should be able to:

  • Rule fairly and impartially in cases involving LGBT and HIV affected litigants.

  • Comply with the legal precedent established in Obergefell v. Hodges that the right of same-sex couples to marry is a fundamental right under the Due Process and Equal Protection Clauses of the Fourteenth Amendment and that same-sex couples shall not be deprived of that right.

  • Adhere to the legal precedent recognized in Obergefell v. Hodges that the fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.

  • Follow the legal precedent established in Obergefell v. Hodges that the tradition or history of excluding certain people from exercising a particular right cannot serve as a continued justification for denying that right to a class of people.

  • Abide by the legal precedent in U.S. v. Windsor that where a law is enacted for the purpose of imposing a disadvantage, inequality, or a separate status on a class of people, there is no legitimate state interest to warrant the law’s enactment.

  • Comply with legal precedent established in Lawrence v. Texas that the right to liberty under the due process clause gives individuals the right to engage in private, adult, consensual, noncommercial sex without interference by the government, and that this right belongs as much to lesbians and gay men as it does to heterosexuals.

  • Adhere to legal precedent established in Lawrence v. Texas that under the U.S. Constitution, religious and moral disapproval cannot be the basis for the enactment and enforcement of criminal laws.

  • Adhere to Lawrence’s holding that lesbians and gay men are entitled under the U.S. Constitution’s protection of liberty to the same autonomy as heterosexuals in making personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.

  • Follow the legal precedent established in Romer v. Evans, 517 U.S. 620 (1996), that when a law can be explained only by antigay bias, it violates the equal protection clause.

  • Adhere to legal precedent established in Roe v. Wade, 410 U.S. 113 (1973), that the constitutional right to privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

  • Follow legal precedent established in Tennessee v. Lane, 541 U.S. 509 (2004), that state Congress acted within its power in providing disabled individuals the right to sue in courts under the Americans with Disabilities Act, which was subsequently codified by the ADA Amendments Act of 2008.

  • Comply with legal precedent established in Bragdon v. Abbott, 524 U.S. 624 (1998), that HIV infection is a disability that limits one or more major life activities, and therefore HIV discrimination is covered by the Americans with Disabilities Act.

  • Carry out legal precedent established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that treating employees differently in the workplace based on whether they conform to sexual stereotypes is a form of sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964.

What Issues the U.S. Supreme Court Is Likely to Consider

In several cases, Lambda Legal is fighting for the right of transgender students to use school bathrooms that best match who they are. The Supreme Court may decide this issue this spring.

Additionally, workplace discrimination against LGBT people is likely to come before the Court very soon, as cases Lambda Legal has filed on behalf of math teacher Kim Hively and security guard Jameka Evans—both fired for being lesbians—make their way through the federal court system.

Other issues impacting LGBT and HIV affected communities the Court may consider in the next several years are:

  • The availability of religious freedom defenses to antidiscrimination laws;

  • The constitutionality of attempts to prohibit the passage or enforcement of laws protecting LGBT people against discrimination;

  • The scope of Title VII’s prohibition on sex discrimination as applied to transgender, gay, lesbian, and bisexual employees;

  • The scope of Section 1557 of the Affordable Care Act’s prohibition on discrimination in the provision of health care as applied to transgender, gay, lesbian, and bisexual individuals;

  • The right of incarcerated transgender individuals to receive medically necessary treatment for gender dysphoria;

  • The free speech rights of LGBT students; and,

  • The proper application of Lawrence v. Texas, 539 U.S. 558 (2003), U.S. v. Windsor, 133 S.Ct. 2675 (2013), Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

Ensuring that justices are fair-minded and approach the decisions they make without prejudice is of utmost importance both for our legal system and for the rights of those who our legal system has the highest obligation to protect.

Lambda Legal’s Fair Courts Project works to advance an independent, diverse and well-respected judiciary that upholds the constitutional and other legal rights of LGBT people and everybody living with HIV.