Commentary

Is Neil Gorsuch the new Anthony Kennedy? Don’t count on it.

Is Neil Gorsuch the new Anthony Kennedy? Don’t count on it.
FILE - In this Feb. 14, 2017 file photo, then-Supreme Court Justice nominee Judge Neil Gorsuch is seen on Capitol Hill in Washington. With a divisive confirmation process behind him, Gorsuch is about to take his place as the nation's newest Supreme Court justice. The 49-year-old appeals court judge from Colorado is to be sworn in April 10, after a bruising fight that saw Republicans change the rules for approving Supreme Court picks over the fierce objection of Democrats. Photo: (AP Photo/Andrew Harnik, File)

Conservatives are throwing a fit over the Supreme Court ruling that grants LGBTQ employees legal protections under federal law. Worst of all, the 6-3 majority opinion was written by Neil Gorsuch, hand-picked by the Federalist Society as a rock-solid purist.  (As a reminder, Gorsuch got the job because Republicans refused to even consider President Obama’s nominee, Merrick Garland.)

Up to now, Gorsuch has been such a reliable vote for the right that Erwin Chemerinsky, the dean of the law school at the University of California at Berkeley, told the Washington Post last year that “he’s everything conservatives hoped for and liberals feared.” Of course, now they’re wondering if they aren’t dealing with another David Souter. The former Supreme Court justice seemed a slam-dunk conservative when George H.W. Bush appointed him to the bench, only to turn out to be a reliable liberal vote.

Related: Trump administration will allow health care providers to discriminate against transgender people

But if liberals and LGBTQ people are looking to Gorsuch to assume the role that retired Justice Anthony Kennedy did on the Court, they are very likely to be disappointed. Kennedy was all in on LGBTQ rights, writing the decisions supporting marriage equality, ending sodomy laws and striking down “special rights” initiatives. As much as Gorsuch’s majority opinion is a tremendous victory, it’s almost certainly not a return to the kind of eloquent support for which Kennedy was renowned.

For one thing, Gorsuch wrote a very technical decision. You won’t find the kind of rhetoric about the dignity of LGBTQ workers that Kennedy would have used (and that the late Justice Antonin Scalia, whom Gorsuch replaced, despised so much.)

More to the point, there is nothing in Gorsuch’s record that indicates any real sympathy for LGBTQ people. He voted in favor of the Trump administration’s ban on transgender military personnel. He issued a dissent in a case involving same-sex parents wanting to have both their naes on their child’s birth certificate, arguing in favor of a “biology based birth registration regime.”

Most concerning of all is Gorsuch’s affinity with religious liberty arguments, the tool that conservatives are using to carve out exceptions to LGBTQ rights. Gorsuch made a bit splash in 2013, when he ruled that the craft store chain Hobby Lobby was entitled to religious freedom of expression. In that case, the owners insisted that they not provide employees contraceptive coverage mandated by Obamacare. Gorsuch agreed.

“For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability,” he wrote in that case. 

Buried on page 36 of the new Supreme Court ruling is an important caveat from Gorsuch about how far it may go. Gorsuch notes that the Religious Freedom Restoration Act (RFRA), the same one that Hobby Lobby cited, is “a kiind of super statute, displacing the normal operation of other federal laws” and that “it might supersede Title VII’s commands in appropriate cases.”

In other words, the employment protections we received today could be whittled away by a religious liberty decision in a future case.

Those cases are already on the Supreme Court’s horizon. Last year’s ruling in the case of a Colorado baker who refused to make a wedding cake for a gay couple had all the hallmarks of an interim decision. It was narrow and technical, and it begged the larger question: can people discriminate against LGBTQ people on the basis of religious belief? The suggestion in today’s ruling is that’s a distinct possibility. Gorsuch’s willingness to say companies, not just religious organizations, have those rights is chilling.

Still, it’s always a good thing when the law and not ideology is the ultimate arbiter in a case. That’s what happened in today’s decision. Let’s not be surprised if it’s an aberration and not a trend.

 

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