LGBT advocacy groups have raised concerns about President Donald Trump’s nominee for the Supreme Court, Judge Neil Gorsuch, and 19 groups signed a letter on Thursday addressing these issues. The March 16 message comes just days before confirmation hearings are scheduled to begin on March 20.
The letter, obtained by BuzzFeed News, urges the Senate Judiciary Committee to “interrogate” and “press Judge Gorsuch to explain on his views about fundamental rights.”
The groups describe Judge Gorsuch as “even more extreme and outside the mainstream” than the late Justice Antonin Scalia, the conservative justice who Judge Gorsuch will potentially be replacing if confirmed. Justice Scalia passed away in 2016.
“After a comprehensive review of Judge Gorsuch’s record,” the letter reads, “we have concluded that his views on civil rights issues are fundamentally at odds with the notion that LGBT people are entitled to equality, liberty, justice and dignity under the law.”
Lambda Legal, a nonprofit organization dedicated to LGBT civil rights and rights for people affected by HIV, led the letter. Among the other groups that signed it are the Human Rights Campaign (HRC), GLSEN, GLBTQ Legal Advocates and Defenders (GLAD) and The Trevor Project.
“Judge Gorsuch poses a significant threat to the LGBT community. In fact, his views are even more extreme and outside the mainstream than Justice Scalia’s, whom Judge Gorsuch is proposed to replace,” the letter states.
The document points out several of Judge Gorsuch’s previously stated beliefs and explains their harmful impact on the LGBT community.
Gorsuch is a known believer in originalism, meaning the Constitution should be interpreted the way it was intended at the time it was written.
He believes judges should be “focusing backward” when interpreting and applying the law, “not [deciding] cases based on their own moral convictions or the policy consequences they believe might serve society best.”
“This philosophy essentially writes LGBT people out of the Constitution,” Lambda Legal’s letter states.
"Since the moment he stepped foot in the Oval Office, President Trump has attacked equality."
Notably, a strong belief in originalism could be a threat to equal protection for historically underserved groups:
“An originalist view is hostile to the notion that laws targeting historically disfavored groups warrant any form of heightened scrutiny, with the exception of laws that discriminate on the basis of race. Because, in his view, the drafters of the Fourteenth Amendment did not intend to prohibit sex discrimination, Justice Scalia regularly voted against heightened constitutional protections for women.”
Judge Gorsuch has expressed his praise for Justice Scalia on numerous occasions, including when he said, after the judge’s death, “Though the critics are loud and the temptations to join them may be many, mark me down too as a believer that the traditional account of the judicial role Justice Scalia defended will endure.”
However, the letter also points out that Judge Gorsuch’s “views are even more extreme and outside the mainstream than Justice Scalia’s.”
Justice Scalia was a “textualist,” the letter explains, meaning “he focused simply on the words of the law as written.” This therefore led Justice Scalia in 1998 to rule that same-sex harassment in the workplace is still considered harassment under Title VII.
“As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Justice Scalia wrote in his opinion on Oncale v. Sundowner Offshore Services, Inc., a case that involved sexual harassment with two males. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
However, unlike Justice Scalia, Judge Gorsuch holds “the narrowest” interpretation of the law, according to a Stanford Law Review analysis:
“By attempting to hew to the narrowest reading of rights-creating text, Judge Gorsuch creates new understandings of the law, leaving litigants with limited access to courts and restricting the reach of constitutional and statutory protections.”
The Lambda Legal letter asks the Committee to “press him on this point, as the civil rights of millions of Americans hang in the balance.”
Additionally, Judge Gorsuch has called into question the role of the courts, the groups note:
“For example, in 2005, Judge Gorsuch wrote that ‘American liberals have become addicted to the courtroom … as the primary means of effecting their social agenda on everything from gay marriage’ to other issues. He has also called private civil rights litigation ‘bad for the country.’ How can any members of historically persecuted groups, including LGBT people, have confidence that Judge Gorsuch would approach their specific cases with an open mind? The Committee should press these issues in the hearing, as this appointment would last long beyond the term of this particular President. Rather, the damage that could be done by this nominee could span generations.”
Judge Gorsuch, 49, is the youngest nominee the court has seen in many years. His rulings will therefore not only have a significant impact now but will affect future generations to come. The youngest person currently sitting on the Supreme Court is 56-year-old Justice Elena Kagan.
Judge Gorsuch also joined the conservative majority in Hobby Lobby Stores, Inc. v. Sebelius, determining that religious beliefs are grounds for challenging government rules regarding healthcare.
“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,” he said.
The letter asks the Committee to interrogate Judge Gorsuch on his “religious complicity” views, as they raise questions such as:
• Does employer-provided health care that includes infertility care make an employer “complicit” in a decision of a non-married couple to have children out of wedlock?
• Does providing health insurance coverage for an employee’s same-sex spouse make an employer “complicit” in that employee’s same-sex relationship?
Since Judge Gorsuch can have a significant impact on “at-risk” communities now and in the future, the letter concludes, “Only by insisting that Judge Gorsuch answer these questions will the Committee fulfill its responsibility to the American people, and reveal the extent to which his nomination jeopardizes rights and liberties that many Americans believe are secure.”