Neil Gorsuch, the federal appeals court judge who appears to be the front-runner for Donald Trump’s first Supreme Court nomination, doesn’t have much of a paper trail on LGBT issues. But given some of his other positions, there is cause for concern.
Gorsuch, a judge on the U.S. Court of Appeals for the 10th Circuit, based in Denver, held that the Affordable Care Act’s mandate that employee insurance plans cover contraceptives without a co-pay violated the rights of those employers that object to some or all contraceptives on religious grounds.
In the famous Hobby Lobby case, he sided with the conservative Christian family that owns the company and sued the federal government over the mandate. Government should not force anyone to be complicit in “conduct their religion teaches them to be gravely wrong,” he wrote in the Hobby Lobby case in 2013, when the appeals court ruled in the company’s favor. The Supreme Court issued a similar ruling the following year.
Gorsuch also wanted the full 10th Circuit to reconsider a three-judge panel’s ruling on a similar case involving a Catholic order, the Little Sisters of the Poor, which operates nursing homes. The panel ruled against the Little Sisters because of an opt-out clause in the ACA available to nonprofit organizations such as the order, allowing them to have their insurance provider absorb the cost of contraceptive coverage. That would accommodate the order’s religious objections, the panel ruled, but Gorsuch disagreed. His argument “was that the 10th Circuit had shown insufficient deference to the Little Sisters’ own articulation of the tenets of their religious beliefs,” SCOTUSBlog reports.
“Simply put, in cases that closely divided his court and the Supreme Court, Gorsuch has shown himself to be an ardent defender of religious liberties and pluralistic accommodations for religious adherents,” SCOTUSBlog notes.
This raises the question of whether Gorsuch might side with business owners who believe their religious liberty is violated by having to serve same-sex couples or other LGBT customers, or whether he would vote to uphold LGBT rights at all. But there is no record of him being called on to rule on such matters.
Gorsuch’s name was on the list of potential Supreme Court picks announced by Trump during the campaign. Trump had pledged to nominate justices in the mold of Antonin Scalia, the ultraconservative, anti-LGBT justice whose death last year left a vacancy on the high court. Republican congressional leaders refused to even give a hearing to President Obama’s nominee, Merrick Garland. The Senate still has the filibuster option for Supreme Court nominees, meaning it would take 60 votes for a nominee to be approved — so a Trump nominee could be blocked.
Trump, who is expected to announce his nominee next week, has given mixed signals on LGBT rights. At some points, for instance, he has said he would appoint justices who would overturn the 2015 marriage equality ruling if they had the opportunity. At other times, he has said marriage equality is a settled issue.
The judges previously believed to be the front-runners, Diane Sykes and William Pryor, had made explicitly anti-LGBT rulings.
Sykes, a member of the U.S. Court of Appeals for the Seventh Circuit, was on a three-judge panel that in 2006 affirmed a student group’s right to discriminate against those who engage in “homosexual conduct” but still be recognized as an official campus group and receive public funding. “Subsidized student organizations at public universities are engaged in private speech, not spreading state-endorsed messages,” she wrote in a case involving the Christian Legal Society at Southern Illinois University’s law school. She even suggested the society did not discriminate because the exclusion of gay people was based on conduct, not orientation.
Pryor, a judge on the U.S. Court of Appeals for the 11th Circuit, filed a friend of the court brief supporting sodomy laws in Lawrence v. Texas, and he opposed hearing a challenge to Florida’s law barring gay people from adopting. He has also derided LGBT rights as “political correctness.” But Pryor made a surprisingly inclusive decision in Georgia state employee Vandy Beth Glenn’s discrimination suit in which she claimed she was fired because of her gender transition. He was on a three-judge panel of the 11th Circuit that ruled in 2011, “We conclude that a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”