Donald Trump’s pick for the United States Supreme Court, Neil Gorsuch, could prove detrimental to the future of marriage equality, considering the views he expressed in a 2004 Oxford University dissertation. Gorsuch, whose confirmation hearings begin Monday, was obtaining a Ph.D. at the time of his dissertation, which suggested that he did not believe the Constitution protected the right to same-sex marriage, according to Corey Brettschneider, a political science professor at Brown University who wrote about Gorsuch for Time.
In the piece, Brettschneider asserts that Gorsuch is critical of the doctrine set forth in Griswold v. Connecticut (1965), which is the doctrine (sometimes referred to as the right to privacy or autonomy) that recognizes couples have the right to make choices in intimate matters relating to contraception, procreation, child-rearing, and marriage.
It appears from the dissertation that Gorsuch leaned heavily on the ideas of his then-adviser John Finnis, a law professor at Oxford and Notre Dame who is a known critic of the court’s decision to allow couples to make choices in intimate matters. Instead, Finnis, an adherent of what he calls “natural law,” believes that same-sex marriage and abortion should be prohibited, according to Time.
Brettschneider’s piece extrapolates from Gorsuch’s writing on physician-assisted suicide to determine how Gorsuch would likely lean in the case of marriage equality.
“Gorsuch’s criticism of choice in the context of assisted suicide includes a broader attack on the idea of a constitutional right to autonomy in intimate personal matters,” Brettscheider wrote. “Gorsuch argues that recognizing this right to autonomy would mean that the state would have to allow every type of voluntary adult intimacy, even those he thinks should clearly be illegal.”
Referring to Planned Parenthood v. Casey (1992), in which the court reasserted that the Constitution’s guarantee of autonomy in intimate matters includes abortion, as the court considered the choice a personal decision, Gorsuch wrote in his dissertation, “If the Constitution protects as a fundamental liberty interest ‘intimate’ or ‘personal’ decisions, the Court arguably would have to support future autonomy-based constitutional challenges to laws banning any private consensual act of any significance to the participants in defining their ‘own concept of existence.’”
Most damning of all is Gorsuch’s invocation of Justice Antonin Scalia’s assertion in the famed Lawrence v. Texas case in 2003 that struck down laws that banned “homosexual conduct.” Scalia dissented from the majority decision.
“‘State laws against bigamy, gay marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity’ are all at risk if we take seriously what Justice Scalia derided as Casey’s ‘famed sweet-mystery-of-life passage,’” Gorsuch wrote in his dissertation, quoting Scalia.
Earlier this week, Lambda Legal, along with 18 LGBT groups, wrote a letter to Sen. Dianne Feinstein and Sen. Chuck Grassley of the Judiciary Committee warning that Gorsuch was dangerous to the future of marriage equality, asserting that if Gorsuch had been on the Supreme Court when Windsor v. U.S. and Obergefell v. Hodges were decided he likely would have ruled against marriage equality.