As a judge on the 10th U.S. Circuit Court of Appeals, Gorsuch showed a willingness to protect religious freedom of business owners when Burwell v. Hobby Lobby came to his desk. The Hobby Lobby case, in which a 5-4 Supreme Court ultimately granted a religious exemption to closely held for-profits, might have laid the groundwork for Masterpiece. Though that case was about contraceptives and abortifacients, a number of gay rights groups recognized the implications of a decision in favor of for-profit religious objectors.
Lambda Legal Defense and Education Fund, the American Civil Liberties Union, DignityUSA, and the Global Justice Institute among other gay rights groups filed amicus briefs on the side of the government in Hobby Lobby. Lambda, in its amicus brief, argued religious exemptions for companies would “open the door to increased use of religion to deny LGBT persons, those with HIV, and other vulnerable minorities equal compensation, health care access, and other equitable treatment in commercial interactions.”
At the time, Gorsuch sided with Hobby Lobby, a decision the Supreme Court later upheld. But he may have a complex view of gay rights. He attends an Episcopal Church that embraces gay marriage, and as a circuit judge he had two openly gay clerks. One of those clerks and another gay friend publicly defended his position on gay rights when he was going through the confirmation process.
Pavan v. Smith: One more ruling from the court’s action-packed last day might help reveal Gorsuch’s view on gay rights. The Supreme Court ordered Arkansas to list same-sex spouses on birth certificates. Gorsuch penned a dissent, and ThinkProgress immediately labeled him “anti-LGBTQ.” The case is slightly more complicated.
The Arkansas birth certificate statute in question presumes for a married couple that the husband is the father of the child, and automatically puts his name on the birth certificate. The state biology-based birth certificate statute has exceptions: If a married couple conceived a child through a sperm donor, the husband would file paperwork agreeing to be listed as the father.
For an adopted child, the Arkansas Department of Health lists the biological parents on a birth certificate that is sealed, and then issues a new birth certificate listing the adopting parents. A single mother is not required to list the father on the birth certificate.
Two lesbian couples had babies via artificial insemination from an anonymous sperm donor, and when the Arkansas Department of Health didn’t list the female spouses alongside the mothers on the babies’ birth certificates, the couples sued. They argued that Arkansas’ law was unconstitutional in light of Obergefell v. Hodges, the Supreme Court ruling that forced states to recognize same-sex marriage. The Supreme Court agreed.
Oddly enough, the couples in the case didn’t challenge the artificial insemination exception as unconstitutional. They challenged the entire birth certificate statute as unconstitutional. In the meantime, the state issued birth certificates with the same-sex spouses’ names and agreed that it needed to update its artificial insemination provision.
Gorsuch penned a dissent on the haphazard way the Supreme Court handled the case and its decision to reject the entire birth certificate statute without hearing oral argument on an unsettled area of the law.
“A summary reversal is reserved for situations where there is no doubt about the application of settled law to the particular set of undisputed facts, and the decision below is clearly in error,” said Rena Lindevaldsen, a law professor at Liberty University School of Law who has been involved in a number of cases to preserve traditional marriage. The per curiam decision “was used to expand the reach of Obergefell,” she added.
Thomas and Alito joined Gorsuch’s dissent, while Chief Justice John Roberts was notably absent. Gorsuch argued that it was “far from clear” that the case warranted the “strong medicine of summary reversal” because the details aren’t settled about how Obergefell would work out in specific instances like birth certificates.