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

• 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