Liberal activists and Senate Democrats on Wednesday launched what is likely to be a protracted battle to block President Trump’s Supreme Court nominee, Judge Neil M. Gorsuch, focusing on how his conservative views could threaten women’s rights, gay marriage and church-state separation.
But Gorsuch has not given Democrats much to work with. He hasn’t ruled directly on cases involving abortion and gay rights, and he won Senate confirmation a decade ago on a voice vote with no opposition.
Opponents have been focusing on Gorsuch’s ruling on religious liberties, which they warn could be used by some as a legal rationale for discrimination.
“We absolutely must not confirm a Supreme Court nominee who has ruled that religious beliefs can trump law,” said Rachel Tiven, chief executive of Lambda Legal in New York, a gay rights advocacy group. “It is a short hop from birth control restrictions to restrictions on intimate relationships and healthcare needs of LGBT people.”
Gorsuch, who serves on the 10th Circuit Court of Appeals in Denver, ruled in favor of exempting religious employers from having to provide female workers with the full range of contraceptives, as required under President Obama’s Affordable Care Act. He said the owners of the Hobby Lobby craft store chain — who objected to certain methods of contraception — had a right to invoke their religious beliefs to obtain an exemption. Otherwise, he said, they believed they would be complicit in wrongdoing.
He relied on the federal Religious Freedom Restoration Act, which says the government may not put a “substantial burden” on a person’s exercise of religion. The Supreme Court agreed with his ruling in 2014.
In October, when the 10th Circuit blocked Utah’s governor from cutting off funding for Planned Parenthood, Gorsuch dissented. The governor had claimed that secretly recorded and heavily edited videos showed workers discussing “selling fetus body parts for money.” A federal judge and the 10th Circuit majority concluded those charges were false and did not justify the funding cutoff.
Gorsuch said the majority acted too quickly and without looking at all the facts. The governor cut off the funding “in direct response to the videos. And it is undisputed that the governor was free as a matter of law to suspend the funding in question for this reason,” he wrote.
In mobilizing the effort against Gorsuch, abortion-rights advocates point out that Trump promised to appoint only “pro-life” justices who would overturn the right to abortion.
“With a clear record of supporting an agenda that undermines abortion access and endangers women, there is no doubt that Gorsuch is a direct threat to Roe vs. Wade and the promise it holds for women’s equality,” said Ilyse Hogue, president of NARAL Pro-Choice America.
But unlike Judge William H. Pryor Jr. of Alabama, once the front-runner to become Trump’s first high court nominee, Gorsuch does not have a track record of explosive statements, such as Pryor’s comment that the landmark abortion ruling Roe vs. Wade was an “abomination.”
And Gorsuch, 49, is a well-liked, congenial jurist with a knack for saying the right thing and an ability to charm skeptics.
In accepting Trump’s nomination at the White House on Tuesday night, he praised the Senate — which must now confirm his appointment — as the “greatest deliberative body in the world.”
Shortly after that, he reportedly placed a call — out of respect — to Judge Merrick Garland, President Obama’s nominee for the same seat, whom the GOP-led Senate had refused to even consider for nearly a year.
Democrats remain bitter over what they now see as a stolen Supreme Court seat, and are not inclined to go easy on Gorsuch.
But some senators expressed a willingness to consider him. “Let’s give the man a chance,” Sen. Joe Manchin III (D-W.Va.) said Wednesday on the MSNBC show “Morning Joe.”
Still, many Senate Democrats voiced concern Wednesday over Trump’s nominee.
“Judge Gorsuch has a long record, and it will take time to conduct a thorough review,” said California Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee. “Judge Gorsuch voted twice to deny contraceptive coverage to women, elevating a corporation’s religious belief over women’s healthcare.”
Gorsuch has also shown a deep interest in cases involving religion. The 1st Amendment says Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” And since the 1940s, the court has said those religious guarantees extend to state and localities.
Gorsuch wrote sharp dissents in recent years when the 10th Circuit decided the display of religious symbols on public property amounted to an unconstitutional “establishment of religion.”
This has been a recurring subject of dispute in the high court for decades, and the justices have been unable to agree on clear rules.
In one case, the 10th Circuit ruled that a small town in Oklahoma must remove a monument displaying the Ten Commandments. In another, the court ruled that Utah authorities may not allow the privately funded Utah Highway Patrol Assn. to erect white crosses along the highway to honor troopers killed in the line of duty.
Gorsuch said both decisions were wrong, and he faulted his colleagues for viewing any religious symbol as proof of the government’s endorsement of religion. He noted the Supreme Court in 2005 had upheld the display of the Ten Commandments among other monuments on the grounds of the Texas state Capitol. This was known as the Van Orden case.
“Now we have become the only circuit since Van Orden to order the removal of memorial highway crosses to fallen public servants,” he wrote in dissent in American Atheists vs. Davenport. “Thus, the pattern is clear: we will strike down laws other courts would uphold, and do so whenever a reasonably biased, impaired and distracted viewer might confuse them for an endorsement of religion.”
Advocates of church-state separation described Gorsuch’s views as “extreme” and said they “make him unfit for a position on the U.S. Supreme Court.”
“Our nation needs a Supreme Court justice who respects real religious freedom and appreciates the role church-state separation plays in protecting the rights of all Americans, religious and nonreligious,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State.
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