Answers suggest nominee’s openness to overruling Obergefell
by Derek Ganzhorn • ChurchMilitant • March 22, 2017
WASHINGTON – In the second day of Supreme Court confirmation hearings, nominee Neil Gorsuch continued to avoid answering how he would rule on specific issues, but some comments hinted at his possible disagreement on High Court rulings on contraception and gay marriage.
The hot-topic issue of same-sex marriage came up multiple times. Gorsuch’s opinion on same-sex marriage is one of the greatest mysteries to Court observers, even among Gorsuch’s proponents. And while President Trump pledged to nominate only pro-life justices to the Court, he has also referred to Obergefell v. Hodges, the 2015 Supreme Court ruling legalizing gay “marriage,” as “settled law” and has made efforts to appeal to LGBT voters during the campaign.
When asked by Minnesota Democrat Al Franken about the legitimacy of Obergefell, Gorsuch responded with a pat, “It is absolutely settled law.” But that answer doesn’t reveal much, as he’s used similar language about Planned Parenthood v. Casey, a 1992 case upholding abortion rights that Gorsuch elsewhere derided.
The nominee was similarly terse when Delaware Democrat Chris Coons brought up the issue Wednesday, again declining to give his personal opinions on gay marriage.
Also instructive were Gorsuch’s responses to the issue of contraceptives.
On Tuesday, South Carolina Republican Lindsey Graham asked the nominee his opinion on Griswold v. Connecticut, the 1965 case that declared a right to contraceptive use within marriage. Graham asked the nominee what he would do if a state tried to make contraceptives illegal. Gorsuch again referred to precedent, adding, “I can’t imagine the Supreme Court of the United States taking that claim seriously.”
But Gorsuch did not go so far as to claim the Griswold decision was correct. This stands in contrast to his Catholic predecessor on the bench, Chief Justice John Roberts, who during his own confirmation hearing claimed the case “was rightly decided.”
That Gorsuch is unwilling to say that the Court decisions legalizing gay marriage, abortion and contraception are anything more than “settled” — refusing to go so far as to say such cases were “rightly decided — suggests he does not believe in extending constitutional protections to social issues.
The abortion question also arose. Taking up where she left off Tuesday, Sen. Dianne Feinstein of California grilled Gorsuch on whether or not Roe v. Wade was “super-precedent,” with the nominee again declining to answer.
Feinstein then launched into an emotional speech about abortion and euthanasia, asking the nominee how he could expect to rule on cases concerning California’s 2016 law that legalized assisted suicide. Gorsuch evaded, but shared with the California Democrat the pain of caring for a sick loved one.
Feinstein’s point of contention arose over Gorsuch’s 2009 book The Future of Assisted Suicide and Euthanasia, in which Gorsuch attempted to apply a “consistent end-of-life ethic” to the courts, proposing solutions to how “the inviolability of life” can be weighed against undesired medical treatment. His suggestions seem to comport with Catholic teaching as described in the section 2278 of the Catetchism of the Catholic Church, which allows for refusal of “overzealous” treatment so long as it does not constitute a will to cause death.
Illinois Democrat Dick Durbin also quoted one of Gorsuch’s claims in his book: “Intentional taking of human life by persons is always wrong.” Durbin asked how Gorsuch could square this view with legalized abortion, and Gorsuch responded that the High Court had found that an unborn child is not a person under the Fourteenth Amendment, and that he accepts that as “the law of the land.” He again refrained from saying the Court’s abortion jurisprudence is correctly reasoned.
The topic of religious expression came up multiple times. On Tuesday, Texas Republican John Cornyn allowed Gorsuch to speak on the issue, remarking that a judge must balance the protections of the First Amendment’s Free Exercise Clause with the protections of the Establishment Clause.
Vermont Democrat Patrick Leahy also invoked the Establishment Clause on Tuesday, grilling the nominee as to whether President Trump could carry through with a Muslim immigration ban. Gorsuch declined to answer directly, but stressed the existence of broad religious protections offered to “all persons” in the United States, not just citizens. Gorsuch also said that there should be no religious test to serve in the military, and praised the Religious Freedom Restoration Act, which extends religious protections beyond those established by the First Amendment.
Leahy continued his questions about a Muslim ban Wednesday, asking Gorsuch if he would stand up to President Trump if he tried to disobey a court order. Gorsuch affirmed the idea that no man or branch of government is above the law.
The topic of religion came up in a more jovial way with Republican senator Ted Cruz. The Texas senator took the opportunity to quote American jurist Grant Gilmore, who once closed a lecture by speculating on otherworldly jurisprudence:
The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.