Earlier this week President Trump named his first nominee to the Supreme Court of the United States, Neil Gorsuch, currently a judge on the U.S. Court of Appeals for the 10th Circuit, based out of Denver, Colorado. The selection surprised virtually nobody, particularly in that he brings a judicial philosophy reminiscent of Justice Antonin Scalia, who passed away last year and was one of the court's most notorious "enemies" of the LGBT rights movement.
As with President George W. Bush's selection of John Roberts to the Supreme Court in 2005, Gorsuch is a notably young nominee (at 49 years old) and, if confirmed, would remain on the court for decades. Speculation, then, runs high in our community as to his perspective regarding LGBT rights and his interpretation of the law regarding it.
Gorsuch has not ruled on an LGBT-oriented case as a judge and so there is no direct "paper trail" we can attach to him. Other news outlets have reminded us, though, that in 2005 he wrote an article that was critical of the LGBT community in relying upon the courts to mandate equality when legislative alternatives appear more daunting, labeling it "bad for the country and bad for the judiciary."
O&AN spoke with three prominent members of the Nashville LGBT political and legal community to gain perspective locally on this Supreme Court nominee. Chris Sanders, the executive director at the Tennessee Equality Project, lamented the selection — as did everyone I engaged regarding this topic — but noted there may be a glimmer of influence that could signal good things for the LGBT community nationwide.
It's a troubling pick for many groups including the LGBT community. Everyone expected a pick in the mold of the late Justice Scalia, of course. I am hearing strategic discussions about whether it is wise to go all out in opposition to his appointment or the President's next pick, which would be the one that shifts the balance that we had under President Obama. With so many marches occurring around the country, there will be significant pressure to stop this appointment. Interestingly, Judge Gorsuch clerked for Justice Byron White who wrote the Bowers v. Hardwick, which upheld Georgia's sodomy statute, and he clerked for current Justice Anthony Kennedy who wrote Lawrence v. Texas, which overturned state sodomy laws. If Judge Gorsuch is confirmed, let's hope that it is Kennedy's influence that will eventually rub off.
Noted academic and transgender political leader Dr. Marisa Richmond looked toward one of Gorsuch's most celebrated cases, that of Burwell vs. Hobby Lobby Stores, the one where the court sided with religious organizations (such as the retailer) that opposed portions of the Affordable Care Act that dealt with contraceptives.
We are very concerned about this pick. His support of religious based discrimination is inconsistent with anti-discrimination laws, and we are not supportive of anyone who will support short changing non-discrimination laws based on religious prejudice.
And Nashville-based civil rights attorney Abby Rubenfeld, who represented the Tennessee plaintiffs in the 2015 Supreme Court case that granted marriage equality nationwide, opened with a radical at-first-glance suggestion: "I was hoping it would be [William] Pryor," she said, "who seems more reasonable and open minded than most of comrade Trump’s suggestions." Though Pryor — who sits on the U.S. Court of Appeals for the 11th District in Atlanta — has at times been referred to as a "right wing zealot," there are a fair number of Conservative Christians in Alabama (his home state) who view him a liberal. Rubenfeld continued:
We need a moderate, fair, open-minded person on the Supreme Court, not an ideologue with blinders on. His statements that courts should not “mess with” the work of congress is very troubling. […] Especially given his ultra conservative, out-of-the-mainstream reputation, and after how [Obama nominee] Judge Merrick Garland was treated, I do not think Congress should approve this man. We need a moderate on the Supreme Court—definitely not another ideologue like Justice Scalia.