During Tuesday’s confirmation hearing for President Donald Trump’s nominee for the U.S. Supreme Court, Sen. Dick Durbin (D-IL) asked Judge Neil Gorsuch to address cases he ruled on that involved lesbian, gay, bisexual, and transgender, or LGBT, people as a class—a term referring to the reach of equal protection jurisprudence and the heightened scrutiny that courts apply to laws that have a discriminatory effect on certain groups of people.
Judge Gorsuch ducked, replying, “I’ve tried to treat each case and each person as a person—not a ‘this kind of person,’ not a ‘that kind of person.’” Although his response appears innocuous, Gorsuch’s refusal to recognize discrimination against LGBT people as discrimination against members of a class rather than against individuals has devastating implications for the future of LGBT rights. If he is confirmed as a Supreme Court justice, such a limited view of the reach of equal protection could set LGBT rights back for a generation.
The 14th Amendment’s Equal Protection Clause prevents states from denying people the equal protection of the law. When courts review equal protection challenges, they usually apply rational-basis scrutiny. That is, a law will pass muster as long as the state has some viable reason for that law. But courts apply heightened scrutiny when the state targets what is called a suspect, or a quasi-suspect, class—that is, a group that has, among other things, suffered historic discrimination and political disempowerment as a result of an immutable or distinguishing characteristic that defines them as a discrete group. This is the bedrock of equal protection case law.
Resistance to treating LGBT people as a suspect or quasi-suspect class played a key part in Justice Antonin Scalia’s dissenting opinions in critical Supreme Court decisions that expanded LGBT rights, such as United States v. Windsor and Obergefell v. Hodges. In his dissent in Obergefell, Justice Scalia rejected the majority’s holding that—in addition to being included in the right to liberty—marriage equality is “derived from the Fourteenth Amendment’s guarantee of equal protection.” Going further, Justice Scalia called for erasing more than a century of precedent by limiting equal protection to those classes recognized when the 14th Amendment was ratified in 1868, namely race and national origin. By aligning himself with Justice Scalia, Gorsuch’s statements indicate that he, like Scalia, favors narrowing rather than expanding equal protection law. When asked directly by Sen. Dianne Feinstein (D-CA) on Wednesday if he agreed with Justice Scalia that there is no “protection for women or gays and lesbians under the equal protection law” because the drafters of the 14th Amendment did not intend to include them, Gorsuch again demurred, responding that “a good judge respects precedent.”
In addition to Justice Scalia’s rejection of extending the 14th Amendment to LGBT people, in his dissent in Lawrence v. Texas, Scalia claimed that he had “nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.” Two years later, Judge Gorsuch wrote a 2005 National Review article mocking liberals for relying on judges rather than the ballot box to advance marriage equality. Their shared belief that LGBT rights should be subject to the will of the majority, whatever the consequences, rather than protected under the U.S. Constitution, bodes poorly for the future of LGBT equality.
Not only has Gorsuch channeled Justice Scalia, but during his confirmation hearing, he praised a “childhood hero” who denied LGBT people the right to privacy: Justice Byron White. Justice White authored Bowers v. Hardwick, which upheld so-called anti-sodomy laws on the ground that the state of Georgia had a rational basis for its discriminatory law—morality. He also rejected the notion that gay people have a fundamental right to privacy under the Due Process Clauses of the Fifth and 14th Amendments. Instead of using legal language to express that opinion, however, Justice White scoffingly editorialized that there is no “fundamental right to engage in homosexual sodomy.”
To date, many Supreme Court decisions recognizing LGBT rights have rested on the right to liberty under the 14th Amendment’s Due Process Clause. However, previous majority and concurring opinions have laid a foundation for finding that laws targeting LGBT people should be subject to heightened scrutiny. These include the majority in Obergefell—which recognized that the right of same sex couples to marry is derived in part from the 14th Amendment’s Equal Protection Clause and referenced past cases that applied heightened scrutiny in order to invalidate laws imposing sex-based inequality in marriage—and Justice Sandra Day O’Connor’s concurring opinion in Lawrence.
Thus, confirming Gorsuch to the Supreme Court would not preserve a stable status quo: It would keep LGBT rights in limbo. Judge Gorsuch would, just as Justice Scalia did, do everything in his power—regardless of precedent—to block LGBT rights for a generation.
Sharita Gruberg is the Associate Director of the LGBT Research and Communications Project at the Center for American Progress. Rebecca Buckwalter-Poza is a Fellow at the Center.
Vice President, LGBTQI+ Research and Communications Project