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Here’s why 18 LGBT groups are fighting Neil Gorsuch’s Supreme Court nomination

Neil Gorsuch believes LGBT folks are “people,” but does he believe they deserve the same rights as everyone else? 

That question was central to Democratic interrogation of the 49-year-old judge tapped by President Donald Trump to fill Antonin Scalia’s vacant spot on the U.S. Supreme Court. During his testimony, the staunchly conservative jurist was asked by Sens. Dick Durbin and Al Franken about how he would rule on same-sex marriage from the bench. Echoing Trump’s sentiments on the issue, Gorsuch referred to Obergefell v. Hodges, the 2015 ruling legalizing marriage equality, as “absolutely settled law.” That would suggest that, if confirmed, he would not overturn the decision if given the opportunity.

“What about them?” Gorsuch replied when further asked about his opinions on LGBT people. “They’re people.”

Those comments should be a breath of fresh air during a political season where LGBT rights have constantly been under attack, but what Gorsuch said next has deeply concerned advocates, who argue that his confirmation could pose a grave threat to equality. , including Lambda Legal and HRC, have opposed his nomination.

After Franken pressed Gorsuch on his views about same-sex marriage, the 10th Circuit Court judge added that there are open questions on how Obergefell v. Hodges should be applied. “There’s ongoing litigation about its impact and its application right now,” said Gorsuch, who opposed legal recognition for LGBT couples in his 2004 dissertation. His advisor at Oxford University, John Finnis, infamously compared homosexuality to bestality.

If Gorsuch believes that the questions around how the Obergefell ruling should be recognized are not as “settled” as the decision itself, that could impact several critical cases being debated in the U.S. court system. The Texas Supreme Court is currently hearing oral arguments in Pidgeon v. Turner, in which two Houston residents sued the city because they believe that their taxes shouldn’t fund partner benefits for same-sex couples. After originally declining to hear that case last year, the Court reversed that decision after a sustained lobbying effort from Texas Lt. Gov. Dan Patrick, Gov. Greg Abbott, and Attorney General Ken Patton.

“That case should not be taken seriously,” said Jenny Pizer, the Law and Policy Director for Lambda Legal. “It is before the court because of a campaign pressuring the court to consider taking the case.”

Although Pizer called legal arguments denying benefits to married same-sex couples “fringe” opinions, Texas isn’t the only state debating whether legally wedded LGBT people deserve the same privileges as other couples. A case called Smith v. Pavan, which was decided by the Arkansas Supreme Court last year, denied both same-sex partners right to be on their newborn child’s birth certificate. Three lesbian couples sued the state’s Department of Health when the agency wouldn’t allow second parents (those who did not directly carry the child) the ability to be recognized as that infant’s legal guardian.

The state ruled in favor of the Department of Health. Sarah Warbelow, Legal Director for the Human Rights Campaign, explained that the Arkansas court wanted to “draw a distinction between access to a marriage license and then everything that flows from marriage.” While that verdict has been appealed to SCOTUS, there’s no word on whether the nation’s highest court will take up the case.

“It’s a tremendous concern for the entire LGBT community if Judge Gorsuch does not consider all these rights, benefits, and obligations to be a firmly settled area of law,” Warbelow added.

Warbelow, who testified against Gorsuch before Congress last week, believes that the judge is “actually more conservative than Scalia.” While she said that Scalia was “no friend to the LGBT community,” Warbelow pointed to a handful of favorable decisions he made in regards to queer people. In McCauley v. Sundowner Offshore Services, Scalia sided with the majority that laws prohibiting sexual harassment in the workplace still apply if the parties involved are of the same gender. Warbelow said that Scalia was “interested in the plain language of the statute,” or what one could reasonably determine from how existing law is written.

The problem is that Gorsuch is a strict originalist. As Warbelow explains, this means he believes that laws “should be read based upon what the drafters of the statute understood the statute to mean.” This is a problem when it comes to legal benefits for same-sex couples, as those privileges weren’t initially intended with LGBT people in mind.

Pizer said, though, that following the Supreme Court’s decision on Obergefell v. Hodges, any debate on that subject should be “moot.”

“The Supreme Court ruling makes clear that decision was not just about marriage licenses,” Pizer said. “It was about the full range of legal rights and social benefits that come from being married. The collection of cases that together carry the name ‘Obergefell’ carried with them a broad range of harms. That litigation was not about marriage licenses or a technical legal status isolated somehow from all the things that come with being married.”

Jim Obergefell, the plaintiff whose name graces that 2015 case, wasn’t looking for a license recognizing his relationship with John Arthur, Obergefell’s partner of 21 years. Arthur died of complications from amyotrophic lateral sclerosis (ALS) in 2013. John’s widower wanted to be listed on his longtime love’s death certificate.

Almost two years after Obergefell won that right, Pizer claims that it’s “generally understood” that marriage should “mean the same thing for everyone,” whether that’s the right to health insurance or inheritance.

“That’s what the Supreme Court said in Obergefell,” she said. “Most of the country understands that.”

Warbelow claimed that the Obergefell ruling is likely safe because of a “five-person voting block” on the Supreme Court, as the same judges that voted in favor of equal marriage two years ago are still on the bench. There is concern, however, in cases regarding so-called “religious liberty.” In his majority opinion on Obergefell, Justice Kennedy wrote “to reassure those who oppose same-sex marriage that their rights of conscience will be protected,” although his statement does not settle questions about how faith-based objections will be dealt with.

“Justice Kennedy signaled there might be times he thinks people can discriminate,” Warbelow argued.

That could pose a problem in a potential debate over the legality of Mississippi’s House Bill 1523, which permitted conscientious objectors to marriage equality to deny service to LGBT people in the name of religion. The bill would prohibit the state from taking action against any individual who, for instance, fires one of their employees for being in a legally recognized same-sex union or rejects a lesbian couple’s application to rent an apartment. HB 1523, which was signed into law last March, would additionally allow adoption agencies to deny a child to LGBT couples if they cite a conflict of faith.

That bill, however, was struck down by U.S. District Judge Carlton Reeves in July, who argued that HB 1523 violated the Equal Protection Clause under the 14th Amendment. That clause promises “the equal protection of the laws” to all Americans.

Should a challenge to that case be heard at the Supreme Court, there’s no indication that the firewall blocking discrimination against LGBT people would hold fast. As a member of the 10th Circuit Court of Appeals, Gorsuch ruled in favor of the right to faith-based objections in Hobby Lobby Stores, Inc. v. Sebelius; that case which debated whether the retail chain could legally deny contraception coverage to its employees as part of its health care plan. Hobby Lobby won that decision, a ruling SCOTUS upheld.

“It sets up the idea that people get to have these little bubbles around themselves and pick and choose which laws to follow based on their religious or moral beliefs,” Warbelow said. “If you follow that line of reasoning, anyone who acknowledges a same-sex couple in any capacity is violating their religious beliefs.”

Even if a Supreme Court with Gorsuch on the bench upholds Obergefell, it would not matter if SCOTUS provides a pathway to discrimination against LGBT people. The conservative judge will continue to be questioned about his beliefs ahead of a vote on whether he will be confirmed to the Supreme Court.

Nico Lang.

Source: Salon: in-depth news, politics, business, technology & culture > Politics

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