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Trump Supreme Court Nominee Neil Gorsuch Opposed Same-Sex Marriage in 2004 Oxford Dissertation

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  • Gorsuch Believes There Is No Right to Privacy, and Thus No Right to Abortion or Same-Sex Marriage

  • Gorsuch Senate Confirmation Hearings Begin Monday Morning

It may be unsurprising that President Donald Trump’s Supreme Court nominee opposes marriage for same-sex couples, but the extent to which his world view opposes marriage equality, and why, may be.

In his 2004 PhD. Oxford University dissertation Neil Gorsuch, now a 10th Circuit Court of Appeals judge, made clear he believes the U.S. Constitution does not support the right of marriage for same-sex couples. The dissertation, which spans 579 pages and includes nearly 100,000 words, focuses on “The right to receive assistance in suicide and euthanasia, with particular reference to the law of the United States.”

In a TIME magazine op-ed Saturday, Brown University professor of political science Corey Brettschneider notes that “Gorsuch’s statements…reveal that he thought it obvious that the United States Constitution did not protect a right to same-sex marriage. If he still holds this view, he could join forces with other justices to reverse the Court’s protection of this right.”

Like the justice he hopes to replace, Gorsuch is a so-called “textualist,” or “originalist.” Both Scalia and Gorsuch, unlike many constitutional scholars, believe the constitution is not a living document. They believe its words are not subject to interpretation, that it was not written with an unknown future in mind but rather, the words on the paper mean exactly and only what they say, and in only that point in time.

Such beliefs mean there is no right to privacy, because the word does not exist in the Constitution. 

That means there is, in Gorsuch’s mind, no right to abortion, no right to same-sex marriage, no right to anything not specifically named in the Constitution. And, as is the focus of his dissertation, no right to “assistance in suicide.”

Why?

As Professor Brettschneider writes, Gorsuch’s “dissertation advisor, who deeply influenced his work, was John Finnis.”

Finnis, a prominent law professor at Oxford and Notre Dame, is a critic of the Court’s decisions about choice in intimate matters, specifically its support for abortion rights and same-sex marriage. Finnis rejects the idea that the state should protect individuals’ ability to make autonomous choices in these areas. Instead, his natural law theory calls for the state to promote a list of “basic goods.” He argues that such a philosophy is incompatible with same-sex marriage or abortion, both of which he thinks should be prohibited by law. Indeed, he refers to heterosexual marriage as the only “real” kind of marriage.

Gorsuch invokes Finnis’ natural law framework in his dissertation, which focuses on the legal debate around physician-assisted suicide. Stressing the importance of “human life as a basic good,” Gorsuch argues that there is no constitutional right to physician-assisted suicide. Instead, he claims that the government can protect the basic good of life by preventing the seriously ill and their doctors from making the choice to end it. He writes, “ruling out a ‘bad choice’ does not necessarily evince disrespect for the chooser, but for the choice he or she made; after all, parents punish children who make bad choices, not because they disdain them, but because they love them and do not wish to see them make bad decisions.”

Gorsuch’s criticism of choice in the context of assisted suicide includes a broader attack on the idea of a constitutional right to autonomy in intimate personal matters. This attack focuses on the Court’s Casey decision, critiquing the opinion from Casey quoted above and negatively referencing same-sex marriage. Casey upheld the right to abortion and confirmed the Constitution’s protection of individual autonomy in intimate personal matters. Gorsuch argues that recognizing this right to autonomy would mean that the state would have to allow every type of voluntary adult intimacy, even those he thinks should clearly be illegal. He writes that Casey’s invocation of a constitutional right to personal choice is “open to question on the ground that it proves too much.”

There is a lot of legal theory we could delve into, but here’s the bottom line.

In a letter to the Senate Judiciary Committee posted by Buzzfeed, Lambda Legal and 18 other LGBT organizations wrote that Gorsuch’s “views on civil rights issues are fundamentally at odds with the notion that LGBT people are entitled to equality, liberty, justice and dignity under the law.” They note his philosophy of originalism “essentially writes LGBT people out of the Constitution,” and conclude, “Judge Gorsuch poses a significant threat to the LGBT community.”

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Image by Elvert Barnes via Flickr and a CC license

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BREAKING NEWS

Just 9 Republicans Joined Democrats to Uphold the Rule of Law and Vote to Hold Steve Bannon in Criminal Contempt

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Only nine House Republicans joined with every Democrat in voting to hold Trump ally Steve Bannon in criminal contempt of Congress. Thursday afternoon’s final vote was 229-202.

Bannon refused to obey a lawful congressional subpoena ordering him to hand over documents and to submit to congressional investigators for a deposition. His legal defense was mocked by experts after he tried to invoke executive privilege.

Minority Whip Steve Scalise had directed House Republicans to vote against the motion.

Top voting rights attorney Marc Elias warns against praising the nine Republicans for doing the right thing in this one instance: “all nine of them voted against voting rights legislation,” he tweeted.

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News

‘Act of War’: Trump Blasted for ‘Chilling’ Statement Calling Election an ‘Insurrection’

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Donald Trump, the twice-impeached former president, on Thursday issued what is being called a “chilling” statement on the election and the insurrection he incited.

“The insurrection took place on November 3, Election Day. January 6 was the Protest!” Trump said in a statement released Thursday afternoon.

Former Republican Congressman Joe Walsh simply and clearly calls it an “act of war.”

U.S. Rep. Jim McGovern (D-MA) during debate on the House floor has “repeatedly” been “calling on Republicans to denounce the Trump statement,” according to reporter Jamie Dupree.

“All my colleagues were elected on November 3,” McGovern said. “If you believe that Election Day was an insurrection, then your election results are illegitimate.”

McGovern is not the only one to blast the Trump statement:

Some journalists are also slamming the former president’s latest remarks.

S.V. Dáte, the White House correspondent at HuffPost weighed in, saying, “Donald Trump tried to overthrow American democracy after he lost his election by 7 million votes, but nearly a year later, he’s still lying. About all of it.”

Washington Post national political reporter Felicia Sonmez called it a “chilling statement … that makes clear his stance on peaceful democracy vs. violent insurrection.”

Washington Post White House bureau chief Ashley Parker pointed to the statement and said: “In which Trump’s shamelessness continues to be his political super power.”

ProPublica Senior Reporter Peter Elkind says: “This is the position of the widely embraced leader of the GOP. Republicans all behind that?”

More:

 

 

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RIGHT WING EXTREMISM

Watch: Garland Destroys GOP Congressman’s False Suggestion His School Board Memo Calls Parents Terrorists

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U.S. Attorney General Merrick Garland Thursday morning was forced to respond to repeated Republican false claims about his memo directing the DOJ to hold “discussions” with local leaders about threats of violence made against school board members, and several times had to push back hard against false accusations made by GOP Congressmen.

Franklin Graham, Stephen Miller, and countless others on the right for weeks have been falsely claiming that Garland has ordered DOJ to investigate parents merely for opposing school board decisions, mostly on mask mandates and what they claim is “critical race theory.”

U.S. Rep. Steve Chabot (R-OH) on Wednesday during a Judiciary Committee hearing falsely suggested Garland was calling parents’ challenging school boards domestic terrorists.

“One example of a so-called terrorist incident was a parent, merely questioning whether school board members had earned their high school diplomas. Now that might have been rude, but does that seem like an act of domestic terrorism that you or your Justice Department ought to be investigating?” Chabot asked.

“Absolutely not,” Garland replied. “And I want to be clear the Justice Department supports and defends the First Amendment right of parents to complain as vociferously as they wish, about the education of their children, about the curriculum taught in the schools. That is not what the memorandum is about at all, nor does it use the words ‘domestic terrorism’ or ‘Patriot Act.’ Like you, I can’t imagine any circumstance in which the Patriot Act would be used in the circumstances of parents complaining about their children, nor can I imagine a circumstance where they would be labeled as domestic terrorism.”

As NCRM has previously reported, school board members and educators in at least nine states this year have been targeted with threats, death threats, and often racist death threats, including in Virginia, Arizona, Connecticut, Michigan, Pennsylvania, Louisiana, Wisconsin, Illinois, and Vermont, according to local news reports.

Ironically, it was Congressman Chabot who, a decade ago, was legitimately accused of violating the First Amendment when his staffers directed local police to confiscate video cameras at the Congressman’s town hall event, held in a public school.

Chabot, ruffled and rebuffed by Garland’s response, decided to end the inquiry there.

“Thank you I’m nearly out of time.”

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