As long as he remains President Trump’s Supreme Court nominee, Neil Gorsuch is not going to tell anyone what he really thinks about LGBT issues. He also isn’t going to show his hand on reproductive health and rights and other personal freedoms. Into the void, many commentators have injected the benefit of their hopes. Sheryl Gay Stolberg from The New York Times suggests that because Gorsuch has some gay friends, he is likely to make LGBT-friendly rulings.
The “some of my best friends” argument is notoriously weak, of course, and as Mark Joseph Stern points out in Slate, it is inappropriate here. Gorsuch’s rulings on Burwell v. Hobby Lobby Stores, Inc. and other cases give reason to believe that, notwithstanding his “colorful” pals, Gorsuch is likely to place the religious “conscience” of people and corporations above the rights of LGBT Americans and others.
But there’s an even stronger reason for such thinking, and it to has to do with a core aspect of his development as a legal scholar. “Friends” are one thing, but academic mentors are another. Gorsuch undertook intensive, advanced study under the renowned legal scholar and political theorist John Finnis for several years at Oxford, and he remains in warm contact with Finnis and some of his acolytes.
Which raises a question: What does it say of someone when they choose to center their highest academic aspirations on an individual whose work is thoroughly, publicly, and relentlessly homophobic?
Sometimes a teacher is just a teacher, of course. But there are those special cases where a teacher is more like a declaration about what a young person wants out of life. At Oxford, John Finnis was one of those teachers. He attracted a small but intensely loyal following, and Gorsuch was a member of the club.
In Gorsuch’s 2006 book, The Future of Assisted Suicide and Euthanasia, an argument against aid in dying, he thanks Finnis in the first line of his acknowledgements for having “provided thoughtful comments on, and kind support through, draft after draft.” At a 2011 conference held in Finnis’s honor at the University of Notre Dame, Gorsuch was a featured speaker and showered praise on his former tutor.
To study with Finnis is to study Finnis’s philosophy of law, which he laid out age 37 in Natural Law and Natural Rights (1980). Finnis maintains that there are certain “basic human goods,” built into the nature of reality, and our moral and political life consists of reasoning our way toward them. These basic goods, he says, are “irreducible,” “non-instrumental,” and “incommensurable.” That is, we pursue them for their own sake, and they can’t be measured against one another. We must respect them in all our actions.
There are exactly seven such basic goods, and the first is “life.” But it seems that only certain kinds of lives are worthy of Finnis’s blessing. “A life involving homosexual conduct is bad even for anyone unfortunate enough to have innate or quasi innate homosexual inclinations,” he wrote. He likened same-sex intimacy to “bestiality,” condemned “non-marital intercourse” as “unacceptable,” and asserted “there is no important distinction in essential moral worthlessness” between masturbation and prostitution. Even married sex seems suspect to Finnis if “the pleasure-driven, de-personalizing and de-maritalizing has gone so far that one’s sex acts, even if they are in fact with one’s spouse, are a kind of adultery.” So there!
But his real obsession seems to be with same-sex intimacy, a topic he has written about volubly and voluminously, assigning to it blame for all kinds of social ills. In a paper titled “Law, Morality, and ‘Sexual Orientation,’” Finnis links the ancients’ tolerance of “homosexual love” to the “devaluation of women” – an astonishing claim given that the status of women tends to be lowest in societies where gay men are flung from the rooftops.
Finnis’s arguments can be complex, but they often rely for their emotional punch on the horror of slippery slopes. “Those who propound ‘gay’ ideology or theories of same sex marriage,” he warns, “have no principled moral case to offer against (prudent and moderate) promiscuity, indeed the getting of orgasmic sexual pleasure in whatever friendly touch or welcoming orifice (human or otherwise) one may opportunely find it in.”
Many of Finnis’s disciples have gone on to leave their mark, and quite a few seem to have built upon the ideas of their mentor. Robert P. George, a legal scholar and Princeton University professor who has collaborated with Gorsuch on academic projects, went on to be a founding member of the National Organization for Marriage, and he was one of three drafters of the Manhattan Declaration, which maintains that same-sex marriage infringes on the religious freedom of Christians. George looks back fondly on the time when homosexuality was “beneath the dignity of human beings as free and rational creatures.”
As a lawyer and a judge, Gorsuch has naturally played his cards much closer to the chest. Witty, and handsome, he has been praised for his “thoughtfulness” and supposed absence of a “personal agenda.” But in his book on euthanasia, Gorsuch offers some tantalizing insight on the sources of his views.
Gorsuch’s book presents a diligently researched tour through the historical, moral and legal arguments for and against euthanasia, aid in dying, and related issues. It is passionately and engagingly written. But there is no suspense about which side Gorsuch will ultimately take.
The argument for aid in dying fails, in part, he says, because it does not recognize that certain goods are “incommensurable.” Legalizing aid in dying will send us down some horrifying slippery slopes. If the terminally ill are granting the right to aid in dying, people suffering from heartbreak and depression will clamor for the same rights. Physicians will feel compelled or even motivated to hasten the deaths of elderly patients. Infanticide and “pulling respirators for kicks” are not far behind. The physician who provides aid in dying to a cancer patient facing intolerable pain is the moral equivalent of a speeding driver who aims her car at a child. By the end of the book, the theory standing at the altar looks very much like the one that the author first met in school. “There are certain irreducible and non-instrumental goods,” Gorsuch concludes; “life” is one of these basic human goods; and respect for life necessarily prohibits giving aid to or respecting the wishes of some people facing the prospect of a painful death.
This is not just an argument in the style of Finnis. It is the argument that Finnis actually makes in a 1998 article about euthanasia. But Gorsuch is a conscientious scholar, and he footnotes Finnis appropriately when declaring his own position.
Following his time at Oxford, Gorsuch took on prestigious internships; worked for a decade at a boutique law firm, where he represented corporate clients; and then moved on to a judgeship. No one would deny that he is accomplished and ambitious. So why the interest in the important — but not exactly career-making — issue of euthanasia? Perhaps because if you substitute “abortion” for “assisted suicide,” the fundamental logic of Gorsuch’s argument for criminalizing the practice remains pretty much the same. As a matter of fact, that’s about how Finnis makes a categorical case against abortion.
In a telling section in his own book, Gorsuch seeks to undermine the importance of the Supreme Court’s ruling in Planned Parenthood v. Casey in which the majority argued that “at the heart of liberty is the right to define one’s own concept of existence of meaning of the universe and of the mystery of human life.” Gorsuch attempts to minimize the importance of the opinion because he recognizes that it weakens his support for criminalizing aid in dying. But the Casey decision was in fact about abortion. Thus, in the midst of his case against aid in dying, Gorsuch indicates that he does not take seriously the kind of “liberty” that the court has seen as central in guaranteeing the rights of individuals on reproductive issues.
In view of Gorsuch’s alignment with Finnis and his concept of “life,” anybody who takes a different view should demand answers. The implications for LGBT rights, women’s reproductive care, aid in dying, and other personal freedoms could be devastating.
Among right-wing supporters, of course, Gorsuch’s views recommend him for the court. Taken together with another view he holds, however, they give every American a compelling reason to reject his candidacy immediately. Indeed, assuming Gorsuch believes what he says, he should withdraw himself from consideration.
Gorsuch, says Robert George, is an “originalist” in the mold of Antonin Scalia, and this must mean that he honors and respects the text of the United States Constitution. So he should read again the “Advice and Consent” clause, Article 2 Section 2, that specifies the duties of the Senate with respect to nominees to the Supreme Court.
Unless he is a little too much like Scalia — who tended to forget all about originalism when it stood in the way of his political agendas — he will surely conclude that the Republican majority in the Senate, by refusing even to hold hearings on President Obama’s nominee for almost one year, made this seat available through the willful breach of the meaning and intention of that clause. To accept the seat under such circumstances would be to affirm that the Constitution means whatever Mitch McConnell says it means. At the end of the day, all you really need to know about Neil Gorsuch is that he is no Merrick Garland.
KATHERINE STEWART's work has appeared in The New York Times, The Washington Post, and other publications. She is the author of The Good News Club: The Christian Right's Stealth Assault on America's Children (PublicAffairs). MATTHEW STEWART's latest book, Nature's God: The Heretical Origins of the American Republic (Norton), was long-listed for a National Book Award. He received his doctorate in philosophy from Oxford University.