In nominating Judge Gorsuch, Mr. Trump has picked a man with impeccable legal credentials and cast him in the mold of the justice he would succeed, the late Antonin Scalia, who once accused the court of being swayed by a “homosexual agenda” and voted against legalizing same-sex marriage. Judge Gorsuch has said he cried when he learned of Justice Scalia’s death.
Like Justice Scalia, Judge Gorsuch regards himself as an originalist, meaning he tries to interpret the Constitution based on the text as written by the founding fathers. But he is three decades younger than Justice Scalia was when he died. He has had two openly gay clerks, and he lives with his wife, Louise, and their two daughters in liberal Boulder, Colo., where his church, St. John’s Episcopal, welcomes gay members.
That leads some friends to wonder if his jurisprudence might be closer to that of Justice Anthony Kennedy, who has carved out a name for himself as the court’s conservative defender of gay rights. Justice Kennedy wrote the landmark 2015 opinion in Obergefell v. Hodges, which found a constitutional right to same-sex marriage — a decision some analysts trace to his upbringing in tolerant California.
“Everybody’s got him pegged as being more Scalia,” said Christian Mammen, a Democrat and intellectual property lawyer in San Francisco, who grew close to Judge Gorsuch when they were pursuing doctoral degrees at Oxford two decades ago. “I’m not sure I see that.”
Judge Gorsuch’s nomination comes as some lesbian, gay, bisexual and transgender people think their very right to exist is threatened by the election of Mr. Trump.
While the president has said he is “fine with” same-sex marriage, and regards the Obergefell decision as “settled law,” he has also toyed with repealing an executive order by his predecessor, President Barack Obama, barring federal contractors from discriminating against gays. And with states like Texas seeking to limit the scope of the Obergefell decision, some activists and gay pundits warn of a coming war against same-sex marriage.
Part of the mystery around Judge Gorsuch is that his record on gay rights is thin and thus difficult to parse. It suggests a deference to religious freedom and a strong skepticism toward using the courts to find a new constitutional basis for L.G.B.T rights. But Judge Gorsuch has never ruled on a case involving whether gays can legally marry.
He declined, through a spokesman, to be interviewed.
“There’s not an enormous amount to work with there; there are not many decisions to go on,” said Rachel B. Tiven, the chief executive of Lambda Legal, which represents gay plaintiffs and expects one of its cases, involving bathroom access for transgender people, to come before the Supreme Court this year.
Like other gay rights groups, Lambda Legal took what it called the “unusual step” of opposing the Gorsuch nomination even before the Senate confirmation hearings.
“It was unprecedented for Lambda Legal,” Ms. Tiven said, “but were are living in times that are not ordinary.”
Just this past week, the gay author and blogger Michaelangelo Signorile published a piece in The Huffington Post headlined: “Why Neil Gorsuch Likely Believes It’s Perfectly Fine to Ban Gay Sex.” In it, he argued that Judge Gorsuch “may be all mild-mannered and cuddly, but that doesn’t mean he wouldn’t in a heartbeat deny your very existence under the Constitution if you happen to be queer.”
Against that backdrop, the judge’s gay friends — both Democrats and Republicans — find themselves vouching for him.
“I said, “Listen, I’m a liberal gay Jew from New England and you were appointed by George W. Bush, and I want to make sure I’m not going to be uncomfortable here,’” said Joshua Goodbaum, a former clerk of Judge Gorsuch, recalling his 2008 job interview.
And when Mr. Goodbaum married his longtime partner in 2014 — the year before the Supreme Court’s landmark decision on same-sex marriage — he said, “The judge was thrilled for us.”
“He was actually kind of syrupy about it. I remember him saying, ‘You’re going to see how wonderful this is for your relationship.’’’
If Judge Gorsuch is confirmed, the composition of the court that made up the Obergefell majority will be unchanged. Michael Dorf, a law professor at Cornell who knows Judge Gorsuch in passing — they were both clerks to Justice Kennedy and run into each other at clerk reunions — says gay rights advocates “have reason to be afraid,” based on the existing evidence about Judge Gorsuch.
In 2005, before Mr. Gorsuch became a judge, he wrote in an essay in National Review that liberals had become “addicted to the courtroom” to enact their social agenda “on everything from gay marriage to assisted suicide to the use of vouchers in public schools.” (At Oxford, he wrote his Ph.D. thesis on assisted suicide and published it as a book.)
In 2015, Judge Gorsuch sided with the Oklahoma Department of Corrections in rejecting arguments by a transgender woman who said the Constitution guaranteed her a right to hormone treatment and to wear feminine clothing. And in two prominent cases, both of which reached the Supreme Court, he sided with employers who had religious objections to providing contraception coverage.
Critics of Judge Gorsuch frequently cite one of those cases, involving Hobby Lobby Stores, the retail arts and crafts chain, which challenged a section of the Affordable Care Act that required closely held, for-profit secular corporations to provide contraceptive coverage as part of their employer-sponsored health plans. Judge Gorsuch joined in an opinion by the full Court of Appeals rejecting that notion, a decision that was upheld by the Supreme Court in a 5-4 decision in 2014.
Gay rights groups draw inferences from Hobby Lobby — Ms. Tiven calls the case ‘‘particularly telling’’ — to argue that Judge Gorsuch would err on the side of religious freedom in cases involving discrimination against gays. But Laurence Tribe, a law professor at Harvard, is unconvinced.
“I do not agree that Hobby Lobby is a death knell that proves Judge Gorsuch would say that people can, on religious grounds, violate anti-discrimination laws,” Mr. Tribe, who said he did not have Judge Gorsuch as a student, said in a recent interview. He called the case “an indicator” but not “a slam-dunk predictor.”
In picking Judge Gorsuch, Mr. Trump has put forth a candidate with a fine Republican pedigree — his mother, Anne Gorsuch Burford, was an official in the Reagan administration — and impeccable academic credentials. His class at Harvard included Mr. Obama as well as Ken Mehlman, who went on to head the Republican National Committee under President George W. Bush.
Mr. Mehlman, who guided Mr. Bush to re-election in 2004 despite his platform opposing same-sex marriage, has since come out as gay and has worked aggressively to advance gay rights at the state and federal level. He declined to be interviewed, but he is circulating a letter of support for the judge and posted a congratulatory message to Judge Gorsuch on his Facebook page. So did Mr. Berg.
“Since Ronald and I married,” Mr. Berg wrote on Facebook, referring to Ronald Riqueros, “we have had a standing invitation to stay with Neil and Louise in Denver. And just last week, Neil told me that if they should move to D.C., ‘Our guest room will be waiting.’”
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