During the confirmation process for Neil Gorsuch, who currently occupies a seat on the Supreme Court that Republicans held open for more than a year until Donald Trump could fill it, the New York Times ran a piece headlined “Gorsuch Not Easy to Pigeonhole on Gay Rights, Friends Say.”
After Monday, those friends look pretty foolish.
The Supreme Court took two actions Monday morning that provide a fairly clear window into how Gorsuch will handle claims alleging discrimination on the basis of sexual orientation.
First, the Court announced that it will hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case brought by a baker who claims that religion gives anti-LGBTQ business owners the right to ignore civil rights laws.
We cannot know for sure whether Gorsuch voted to take up this case — but it is notable that the Court decided not to consider this issue when Justice Antonin Scalia was still alive. Gorsuch now occupies Scalia’s seat.
Second, the Court reversed an Arkansas Supreme Court decision permitting the state to engage in a subtle form of discrimination against same-sex couples. Gorsuch criticized the majority’s decision striking down Arkansas’s practice, relying on a narrow interpretation of the Supreme Court’s landmark marriage equality decision in Obergefell v. Hodges.
Pavan v. Smith involved an unusual Arkansas law providing that, when a child is born to woman married to a man, “[i]f the mother was married at the time of either conception or birth . . . the name of [her] husband shall be entered on the certificate as the father of the child.” But under this law, when a child is born to someone in a same-sex marriage, the state does not automatically list the mother’s spouse as a co-parent.
For example, if a woman in an opposite-sex couple is artificially inseminated, her husband will be listed as the child’s parent. But if a lesbian woman is artificially inseminated, her wife will not automatically be listed as the child’s parent. According to the decision, this regime violates Obergefell’s holding that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’”
Gorsuch’s dissent labels this conclusion “overbroad,” and suggests that the Arkansas regime can be justified because it “establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.” However, the Arkansas rule applies even to married opposite-sex couples even if the couple is fully aware that the mother’s husband is not the child’s biological father.
Notably, even Chief Justice John Roberts, who dissented in Obergefell, joined the majority in Pavan.
Taken together, these two cases suggest Gorsuch will join the Court’s rightmost faction in matters relating to LGBTQ rights.