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Trump Had Scalia in Mind When Picking Neil Gorsuch for Court

Neil Gorsuch

Gorsuch, 49, is a favorite of "religious freedom" advocates.


President Donald Trump has nominated conservative Colorado judge Neil Gorsuch for a seat on the Supreme Court, saying he'd modeled the pick after Justice Antonin Scalia, "whose image and genius was in my mind throughout the decision-making process."

If he's confirmed by the Republican-controlled Senate, Gorsuch would replace Scalia, the far-right archenemy of LGBT rights who died in February 2016. Both Trump and Gorsuch heaped praise on Scalia during the announcement Tuesday. "Justice Scalia was a lion of the law," said Gorsuch. "Agree or disagree with him, all of his colleagues cherish his wisdom and his humor, and like them, I miss him."

Gorsuch, a federal appeals court judge in Colorado, doesn't have much of a paper trail on LGBT issues. But given some of his other positions, there is cause for concern.

Gorsuch is a judge on the U.S. Court of Appeals for the 10th Circuit, based in Denver. In a ruling, he 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," reports SCOTUSBlog.

"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," notes SCOTUSBlog.

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 Gorsuch being called on to rule on such matters.

Gorsuch attended Harvard Law with former President Barack Obama and also holds degrees from Columbia and Oxford. He also worked for a time at the Department of Justice and served as a clerk for current swing vote justice Anthony Kennedy, who has sided with multiple LGBT plaintiffs. Gorsuch has two daughters with wife Louise.

Even though Gorsuch is known as less combative as his judicial idol, Scalia, numerous civil rights organizations decried his nomination.

"Judge Gorsuch gained national attention for his opinions in two federal cases supporting an employer's right to refuse to pay for contraception as part of employee health coverage if doing so violates the employer's religious beliefs. That bodes ill for LGBT people who are facing an onslaught of laws sanctioning discrimination in the name of religious liberty," Equality California executive director Rick Zbur said in a statement.

National LGBTQ Task Force executive director Rea Carey went even further: "Judge Neil Gorsuch's record reveals a jurist who: believes that bosses should control their employees' private health care decisions; supports the misuse of religion to legalize discrimination; and holds LGBTQ equality with disdain. He is also a darling of those who are vehemently opposed to marriage equality. He seems like someone who aligns perfectly with Donald Trump and Mike Pence's view of the world, but is completely out of touch with the realities of most people's lives."

The Task Force didn't specify why it believes Gorsuch holds animus for LGBT rights, but he did join two unpublished opinions that ruled against transgender rights.

In 2015's Druley v. Patton, Gorsuch "joined an unpublished opinion ruling against a transgender inmate's constitutional claims seeking hormone treatment and re-assignment from an all-male facility," according to the Williams Institute. In 2009's Kastl v. Maricopa County Community College District, Gorsuch, "sitting by designation on the U.S. Court of Appeals for the Ninth Circuit, joined an unpublished opinion that, while recognizing that a transgender person can state a claim for sex discrimination under Title VII based on a theory of gender stereotyping, ultimately ruled against the plaintiff. The employer had barred the plaintiff from using the female restroom until completing gender-confirmation surgery. The court held that 'restroom safety' was a non-discriminatory reason for the employer's decision."

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