President Trump has picked Neil Gorsuch of the federal appeals court in Denver as his nominee to the Supreme Court at a crucial time in the clash between gay rights and religious freedom.
WASHINGTON — Phil Berg was nervous as he prepared to tell Neil Gorsuch he was gay.
AIDS was in the headlines at the time, the early 1990s, and same-sex marriage was a far-fetched notion. Some of Berg’s other friends had not reacted well to his news. So he moved with caution, slipping “boyfriend” casually into conversation with Gorsuch, his friend and a Harvard Law School classmate.
“He didn’t skip a beat,” Berg, now a corporate lawyer in Manhattan said, recalling how that conversation led to a “special bond” between the two men. “It was a huge deal for me, and it made a lasting impression.”
President Trump has picked Gorsuch, 49, of the federal appeals court in Denver, as his nominee to the Supreme Court at a time when the clash between gay rights and religious freedom is one of the most contentious questions on the court’s agenda.
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Democrats and their progressive allies are marching in lockstep to oppose Gorsuch, whose record they find troubling, and gay pundits are painting him as a homophobe. But interviews with his friends — gay and heterosexual — and legal experts across the political spectrum suggest that on gay issues, at least, he is not so easy to pigeonhole.
In nominating Gorsuch, Trump has picked a man with impeccable legal credentials and cast him in the mold of the justice he would succeed, the late Antonin Scalia, who once accused the court of bending to a “homosexual agenda” and voted against legalizing same-sex marriage.
Like Scalia, Gorsuch regards himself as an originalist, meaning he tries to interpret the Constitution based on the text as written by the Founding Fathers. But he is three decades younger than Scalia was when he died. He has had two openly gay clerks, and he lives with his wife, Louise, and their two daughters in liberal Boulder, Colo., where his church, St. John’s Episcopal, welcomes gay members.
That leads some friends to wonder if his jurisprudence might be closer to that of Justice Anthony Kennedy, who has carved a name for himself as the court’s conservative defender of gay rights. Kennedy wrote the landmark 2015 opinion in Obergefell v. Hodges, which found a constitutional right to same-sex marriage — a decision some analysts trace to his upbringing in tolerant California.
“Everybody’s got him pegged as being more Scalia,” said Christian Mammen, a Democrat and intellectual-property lawyer in San Francisco, who grew close to Gorsuch when they were pursuing doctoral degrees at Oxford two decades ago. “I’m not sure I see that.”
Legal battle ahead?
Gorsuch’s nomination comes as some members of the lesbian, gay, bisexual and transgender community think their right to exist is threatened by the election of Trump.
While the president has said he is “fine with” same-sex marriage and regards the Obergefell decision as “settled law,” he has also toyed with repealing an executive order by his predecessor, President Obama, barring federal contractors from discriminating against gays. And with states like Texas seeking to limit the scope of the Obergefell decision, some activists and gay pundits warn of a coming war against same-sex marriage.
Part of the mystery around Gorsuch is that his record on gay rights is thin and thus difficult to analyze. It suggests a deference to religious freedom and a strong skepticism toward using the courts to find a new constitutional basis for LGBT rights. But Gorsuch has never ruled on a case involving whether gays can legally marry.
He declined, through a spokesman, to be interviewed.
“There’s not an enormous amount to work with there; there are not many decisions to go on,” said Rachel Tiven, chief executive of Lambda Legal, which represents gay plaintiffs and expects one of its cases, involving bathroom access for transgender people, to come before the Supreme Court this year.
Like other gay-rights groups, Lambda Legal took what it called the “unusual step” of opposing the Gorsuch nomination even before the Senate confirmation hearings.
“It was unprecedented for Lambda Legal,” Tiven said, “but we’re living in times that are not ordinary.”
Last week, the gay author and blogger Michaelangelo Signorile published a piece in The Huffington Post. In it, he argued that Gorsuch “may be all mild-mannered and cuddly, but that doesn’t mean he wouldn’t in a heartbeat deny your very existence under the Constitution if you happen to be queer.”
Against that backdrop, the judge’s gay friends — Democrats and Republicans — find themselves vouching for him.
“I said, ‘Listen, I’m a liberal gay Jew from New England and you were appointed by George W. Bush, and I want to make sure I’m not going to be uncomfortable here,’ ” said Joshua Goodbaum, a gay former clerk of Gorsuch, recalling his 2008 job interview.
When Goodbaum married his longtime partner in 2014 — the year before the Supreme Court’s landmark gay-marriage decision — he said, “The judge was thrilled for us.”
“He was actually kind of syrupy about it. I remember him saying, ‘You’re going to see how wonderful this is for your relationship.’ ”
“Reason to be afraid”
If Gorsuch is confirmed, the composition of the court that made up the Obergefell majority will be unchanged. Michael Dorf, a law professor at Cornell who knows Gorsuch in passing — they were both clerks to Kennedy and run into each other at clerk reunions — says gay-rights advocates “have reason to be afraid,” based on the existing evidence about Gorsuch.
In 2005, before Gorsuch became a judge, he wrote in an essay in The National Review that liberals had become “addicted to the courtroom” to enact their social agenda “on everything from gay marriage to assisted suicide to the use of vouchers in public schools.” (At Oxford, he wrote his doctoral thesis on assisted suicide and published it as a book.)
In 2015, Gorsuch sided with the Oklahoma Department of Corrections in rejecting arguments by a transgender woman who said the Constitution guaranteed her a right to hormone treatment and to wear feminine clothing. And in two prominent cases, both of which reached the Supreme Court, he sided with employers who had religious objections to providing contraception coverage.
Critics of Gorsuch frequently cite one of those cases, involving Hobby Lobby Stores, the arts-and-crafts chain, which challenged a section of the Affordable Care Act that required closely held, for-profit secular corporations to provide contraceptive coverage as part of their employer-sponsored health plans. Gorsuch joined in an opinion by the full Court of Appeals rejecting that notion, a decision that was upheld by the Supreme Court in a 5-4 decision in 2014.
Gay-rights groups draw inferences from Hobby Lobby — Tiven calls the case “particularly telling” — to argue that Gorsuch would err on the side of religious freedom in cases involving discrimination against gays. But Laurence Tribe, a law professor at Harvard, is unconvinced.
“I do not agree that Hobby Lobby is a death knell that proves Judge Gorsuch would say that people can, on religious grounds, violate anti-discrimination laws,” Tribe, who said he did not have Gorsuch as a student, said in a recent interview. He called the case “an indicator” but not “a slam-dunk predictor.”