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Neil Gorsuch: The new Scalia…or something else?

Matthew Cullinan Hoffman Matthew Cullinan Hoffman Follow Matthew

February 23, 2017 (LifeSiteNews) – Neil Gorsuch has been received by most conservative leaders as an outstanding nominee to fill the vacant position of Antonin Scalia on the Supreme Court. His bona fides is attested to by such authorities as the Federalist Society and the Heritage Foundation, as well as numerous luminaries of originalist jurisprudential thought.

However, conservative endorsements do not automatically imply a pro-life and pro-family worldview, and questions have been raised about Gorsuch’s views on sexual morality as well as the binding nature of bad judicial precedents. The question therefore remains for defenders of the right to life and family: what are we to expect of Gorsuch with regard to these crucial questions? Would Gorsuch’s tenure on the court be a beneficial one for life and family, and if so, how much?

Gorsuch’s ideological background and legal career

Neil McGill Gorsuch, 49, is the son of two career attorneys, and spent much of his teen years in Washington, D.C. while his mother served under Ronald Reagan as the first woman to head the Environmental Protection Agency. Gorsuch’s family was staunchly Republican and militantly conservative, at least on issues regarding fiscal restraint and economic freedom. The perspective held by Gorsuch’s parents on social issues is unclear.

After graduating from the elite Jesuit Georgetown Preparatory School in Washington, D.C., Gorsuch went on to major in political science at Columbia, where he graduated cum laude in only three years and was elected to the elite Phi Beta Kappa honor society. Both at Georgetown Prep and Columbia, which were dominated by liberal students and faculty, Gorsuch established himself as a cautious academic with conservative tendencies who enjoyed entering into the fray of discussion without offending his opponents or taking positions that might be perceived as extreme.

After graduating from Columbia, Gorsuch studied law on a Truman Scholarship at Harvard from 1989-1991, where he co-edited an academic journal. After graduating with a law degree, he went to Oxford in 1992 on a Marshall Scholarship, where he eventually earned a doctorate in legal philosophy under John Finnis, an erudite champion of natural law theory. His dissertation would eventually be published as a book, The Future of Assisted Suicide and Euthanasia, which offers a courteous review of various perspectives on the topic, but concludes that most forms of euthanasia must be rejected as offending “the inviolability of human life.”

While still working on his doctoral thesis, Gorsuch functioned as a Supreme Court law clerk, both for the conservative textualist Byron White, who had famously dissented from Roe v. Wade, and the socially liberal Anthony Kennedy, who would go on to reaffirm the Roe decision and to collude in the affirmation of homosexual “marriage” as a “right” in Obergefell v. Hodges. Per his usual affability, Gorsuch got along famously with both justices and continues to speak fondly of them, although he clearly preferred White’s originalist legal philosophy, one that was championed as well by Justice Antonin Scalia, who became Gorsuch’s favorite Supreme Court justice and one of the chief inspirations for his own philosophy of law.

Following this accumulation of prestigious degrees and clerkships, Gorsuch went on to a predictably stellar career as a Washington attorney, first in private legal practice, then as Principal Deputy Associate Attorney General in the Bush administration from 2005-2006. He was then appointed by Bush as a federal judge on the Tenth Circuit Court of Appeals, where he still sits today. He also became, in 2008, a professor of law at the University of Colorado, Boulder.

Gorsuch’s legal philosophy: textualism and natural law

Gorsuch’s legal philosophy seems to have been inspired principally by his Oxford mentor John Finnis, who is famous for his “neo-naturalist” philosophy of law. Finnis defends the notion, also upheld by ancient Greek and Medieval philosophers as well as the 18th century English jurist William Blackstone, that certain goods are natural to man, and that the moral force of laws is determined by their relationship to those goods. Finnis has been willing to defend this view in the face of changing public opinion; he came under heavy fire from homosexual activists in the 1990s following his denunciation of “the evil of homosexual conduct,” even comparing it to bestiality.

Finnis’ natural law approach differs from the legal positivism championed by others at Oxford, such as John Gardner, who rejects the claim that the particular or positive laws of a society require a natural law – or indeed any moral principles—for their justification or understanding. Legal positivism simply examines the law as a “social fact” and seeks no further foundation, even if it recognizes that a relationship between law and morality may in fact exist, and that laws may fail a moral test. Positivism holds that laws don’t lose their force for lack of moral justification.

Although Finnis opposes the legal-positivist school, his naturalism differs from that of more traditional natural law philosophers, such as Aquinas and his contemporary exponents such as Russell Hittinger and Ralph McInerny, in that he does not seek to ground natural law itself in any prior justification based on an analysis of the nature of man. Finnis instead takes an approach that seems to differ little from the ethical philosophy of Immanuel Kant, treating natural goods and moral principles as if they were groundless and self-evident, and eschewing the possibility of deriving normative truth from positive truth, which is sometimes called the “naturalist fallacy.” In this way, Finnis himself is a sort of positivist in relation to natural law itself.

This same aprioristic foundation to natural law is adopted by Gorsuch in his book, The Future of Assisted Suicide and Euthanasia, in which he applies Finnis’ theory to those controversial topics, and makes his most powerful public statement about the right to life. Gorsuch holds that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” Gorsuch, like his mentor, does not ground this claim in any analysis of the nature of the human person, but rather regards it as a self-evident proposition, because the value of life and other “basic goods” is recognized by mankind in general, and implied or stated in historically-important legal documents such as the Declaration of Independence and the European Convention.

“I do not purport that I can ‘prove’ the existence of basic goods or moral absolutes by reference to logical syllogism,” writes Gorsuch. “Rather, I can and seek only to suggest their existence by reference to the practical, pragmatic experience of each of us in the world.”

Although Gorsuch’s adoption of Finnis’ neo-naturalism has led him to affirm the intrinsic value of human life, it also raises troubling questions about the robustness of his conclusions in the face of changing social norms. If Gorsuch is to deduce the natural law from the common opinion of Western society, without any foundation in the unchanging nature of the human person, how will he resist arguments that adduce changing perspectives in the West regarding the right to life and the nature of human sexuality, opinions that have led to not only the legalization of active and passive euthanasia, but abortion, sodomy, same-sex “marriage,” and a host of other evils that were once universally regarded as such?

Indeed, as we will see in my examination of his personal and religious convictions, Gorsuch seems not to share his mentor John Finnis’ moral condemnation of sodomy and appears to embrace same-sex unions as a legitimate variation on traditional marriage. Whether or not this assessment of Gorsuch’s beliefs is correct, however, it would seem that his philosophy of law, by rejecting the classical naturalism of Aquinas, undermines his ability to resist such cultural tendencies.

Moreover, whatever comfort that Gorsuch’s compromised natural law theory might be to defenders of life and family, it is not at all clear how his philosophy of law relates to his originalist and “textualist” approach to jurisprudence, which was championed by two of his heroes, Byron White and Antonin Scalia. If that approach is taken to an extreme, it would seem to constitute a form of legal positivism that could undermine any recourse that Gorsuch might have to natural law. This form of thinking seems to be suggested in an interesting turn of phrase found in one of his recent verdicts (United States v. Games-Perez, 2012), in which he writes, “Our duty to follow precedent sometimes requires us to make mistakes.” However, in justice to Gorsuch, virtually all federal judges bow to precedents established by higher courts, which they are unable to overturn.

According to the doctrines of Constitutional originalism and textualism, the role of judges is not to create law, as has been the habit of the Supreme Court’s liberal majority for decades, but to apply the law as it was originally intended, and leave the task of creating, modifying, and eliminating laws to the legislative branch of government. His adherence to this principle is so rigorous that it appears to leave little room for the application of natural law.

In his 2016 speech delivered at Case Western Reserve School of Law following the death of Antonin Scalia, Gorsuch vigorously defended his view of legal textualism and original intent, maintaining that it was the only standard for formulating legal verdicts, even in the most ambiguous cases. In answer to those who object that not every case can be clearly decided by such standards, he replied, “I accept the possibility that some hard cases won’t lend themselves to a clear right answer,” but insisted, “even accepting some hard cases . . . it just doesn’t follow that we must or should resort to our own political convictions, consequentialist calculi, or any other extra-legal rule of decision to resolve them . . . . We can make our decisions based on a comparative assessment of the various legal clues—choosing whether the rule of the last antecedent or one of its exceptions best fits the case in light of the particular language at hand.”

That Gorsuch has such views should be unsurprising – they are virtually identical to those of Antonin Scalia, a jurist with whom most in the pro-life and pro-family movements would be comfortable. Moreover, they may actually leave some room for Gorsuch’s natural law theory, if only indirectly, by way of his constitutional originalism. Gorsuch holds that the laws that govern Western civilization were formulated with the intention to defend the irreducible “basic goods” of Finnis’ natural law theory. If this is the case, then Gorsuch might interpret the Constitution by way of natural law, in seeking to apply the original meaning of its language to modern cases.

Gorsuch’s decisions reveal his conservative textualism and respect for religious liberty

As a federal judge, Neil Gorsuch made several decisions that provide useful illustrations of his judicial philosophy. He seems not to have authored or joined in any rulings that would indicate his views specifically on abortion, nor on homosexual “marriage,” but he has ruled on cases pertaining to transsexualism and gender ideology, and has also issued verdicts on religious liberty in a variety of contexts. In all of these cases, defenders of life and family would find Gorsuch’s opinions to be encouraging.

With regard to religious liberty, Gorsuch has taken very strong interpretations of constitutional protections, most recently in the famous cases of Hobby Lobby and a group of organizations under the umbrella of the Little Sisters of the Poor, all of whom wished to avoid any involvement in facilitating access to contraceptives by their employees under the terms of the Affordable Care Act.

In their dissenting opinion in Hobby Lobby Stores v. Sebelius (2014), several Tenth Circuit court judges argued that the companies and organizations in question weren’t really being forced to do anything against their religion, because their cooperation was not direct but remote from the final outcome of providing abortifacient birth control. Gorsuch and the majority on the Tenth Circuit strongly disagreed, writing of the owners of Hobby Lobby, “It is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct. Whether an act of complicity is or isn’t ‘too attenuated’ from the underlying wrong is sometimes itself a matter of faith we must respect.”  

In Little Sisters of the Poor Home for the Aged v. Burwell (2015), Gorsuch and several colleagues dissented against the Tenth Circuit panel that had ruled against the Little Sisters of the Poor, noting, “All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?”

In American Atheists, Inc. v. Davenport (2010), Gorsuch joined with another dissenting judge to condemn a ruling against the Utah Highway Patrol for using large white crosses planted on public property to commemorate the service of officers who had died in the line of duty. “There is no suggestion in this case that Utah's monuments establish a religion or coerce anyone to participate in any religious exercise,” noted Gorsuch and his colleague. “Most Utahans, the record shows, don't even revere the cross. Thus it is that the court strikes down Utah's policy only because it is able to imagine a hypothetical ‘reasonable observer’ who could think Utah means to endorse religion —even when it doesn't.”

In Green v. Haskell County Board of Commissioners (2009), Gorsuch and several colleagues dissented from a refusal to reconsider a verdict against the posting of the Ten Commandments on public property, arguing that “displays of the decalogue alongside other markers of our nation's legal and cultural history do not threaten an establishment of religion.”

In two cases related to gender ideology and transsexualism, Gorsuch shot down claims that transsexuals were a protected class under the law, and rejected arguments that male-to-female transsexuals had a right to gender discrimination protection as “women,” given that their bodies are biologically male.

In Druley v. Patton (2015), Gorsuch and two other panel judges turned down an appeal by a transsexual convict who was seeking to force prison officials to provide him with female hormones. They noted that hormone therapy is “medically controversial, and the evidence did not demonstrate ‘that failing to treat plaintiff with estrogen would constitute deliberate indifference to a serious medical need.’” They added, “To date, this court has not held that a transsexual plaintiff is a member of a protected suspect class for purposes of Equal Protection claims.”

In their 2009 response to an appeal of Kastl v. Maricopa County Community College District (2006), Gorsuch and two other panel judges turned down an appeal from a male-female transsexual who had been banned from using the women’s restroom. Although the judges accepted a recent Supreme Court decision banning discrimination against transsexuals for failing to conform to the behavior typical of their biological gender, they concluded that Maricopa County Community College District had been motivated by safety concerns, and upheld the original decision to reject the discrimination claim. “Because Kastl did not put forward sufficient evidence demonstrating that MCCCD was motivated by Kastl’s gender, her claim is doomed,” the judges wrote.

Gorsuch, like most federal judges, upholds higher court decisions in a mechanical way and applies them, and this case was no exception. As noted previously in this article, he holds that the jurist may even “make mistakes” in order to uphold a higher court precedent, a view that appears to be commonly held by federal judges. However, it remains to be seen if Gorsuch will be led by reverence for precedent, also known as stare decisis, to maintain Roe v. Wade, Obergefell v. Hodges, and other decisions that fabricate “rights” that do not exist explicitly in the Constitution. This aspect of his thought is unknown.

Gorsuch the private man, his religious and moral views

Gorsuch’s private life and religious outlook differ rather markedly from that of his beloved mentor, Antonin Scalia, who grew up in a traditional Italian Catholic family, and had a very large family of his own.  As an attorney, Gorsuch has followed in the footsteps of his parents, David and Anne Gorsuch, who met while studying law at the University of Colorado in the early 1960s. Although it is clear that the family was politically conservative in the sense that they supported smaller government, it was hardly a traditional one. Gorsuch’s parents became a career couple, with Anne Gorsuch becoming an assistant district attorney and state representative and giving birth to three children before divorcing her husband in 1979.   

In 1981, Anne Gorsuch headed to Washington, D.C. as a single parent after being appointed as Ronald Reagan’s EPA administrator, on an ideological quest to gut the agency of its power. She is remembered as a hard-driving conservative activist and politician who smoked two packs of cigarettes a day and was famously described by the Rocky Mountain News as so tough “she could kick a bear to death with her bare feet.” Soon after arriving in Washington she married the director of the Bureau of Land Management, Robert Burford, whom she would also later divorce. After she was cited for contempt of Congress for refusing to cooperate with an investigation, she was forced to resign by President Reagan, and wrote a book recounting  the affair, “Are you Tough Enough?

Perhaps in reaction to his mother’s excesses, Neil Gorsuch developed a very diplomatic and congenial personality that has made him popular with his colleagues, while still arguing vigorously for his jurisprudential philosophy of constitutional textualism and originalism. Although he also met his wife during his university studies, Marie Louise Gorsuch seems to have no high-profile career, if any, and their marriage seems to be a successful one. However, unlike Scalia, who had nine children, Gorsuch has only two daughters.

Although Gorsuch cited his faith as one of his key supports in his nomination acceptance speech, his religious sensibilities also differ from those of Antonin Scalia, who was a devoted and orthodox Catholic who often attended the traditional Latin Mass. Gorsuch and his family attend a very liberal Episcopalian parish, St. John’s Episcopal Church in Boulder, Colorado, whose female pastor has a penchant for leftist ideological causes.  According to an exposé published by the Daily Mail, she openly supports homosexual “marriage” and conducts blessings of same-sex couples, and attended the ultra-feminist “Women’s March on Washington” to protest the Trump presidency. She also denounced “criticism and disrespectful rhetoric” regarding Islam following the San Bernadino terrorist attack in 2015. The Washington Post’s own investigation of the parish also found that the pastor engages in leftist political activism.

A conservative Anglican priest dismissed these concerns in a recent interview with the Washington Post, noting that St. John’s is just the “social parish in Boulder” and that Episcopalian laity don’t necessarily hold the views of their clergy. However, it is notable that Gorsuch and his family are far from being mere passive participants in the church. Gorsuch himself serves as an usher, and his wife as a lector, and his two daughters have served as acolytes during worship services.

As a member of the Episcopal Church, St. John Parish is subject to resolutions passed by the body’s general assembly allowing practicing homosexuals to become priests and bishops, and mandating the formulation of ceremonies for celebrating homosexual “marriages,” a cause embraced enthusiastically by the pastor. The Episcopal Church has also issued statements opposing any legal restrictions on the killing of the unborn, and holding that abortion can be justified in cases of risks to the physical or mental health of the mother, rape, incest, or fetal malformation.

Gorsuch’s membership in a parish that embraces the gay agenda may help to explain why his famed congeniality extends well beyond the proprieties of polite dialogue with those who stand on the left side of the national ideological divide, particularly on social issues. Gorsuch has a history of close friendships with social liberals at the highest level of the judiciary, including Supreme Court Justice Anthony Kennedy, whose written decisions have repeatedly been decisive in protecting abortion and homosexual “marriage” as constitutional “rights.” However, affable relationships between jurisprudential opponents are not uncommon among judges, and Antonin Scalia himself was known for his friendly relationships with his opponents on the Supreme Court, including Anthony Kennedy and Ruth Bader Ginsberg.

Kennedy, for whom Gorsuch clerked on the Supreme Court, flew to Denver personally to swear Gorsuch in when he was appointed as a federal judge on the Tenth Circuit Court of Appeals, and Gorsuch went out of his way to express his gratitude and indebtedness to the justice in his acceptance of Trump’s nomination.  In a 2002 opinion article for UPI, Gorsuch offered effusive praise of Merrick Garland, a Clinton-nominated federal appeals judge who would eventually be nominated by Barack Obama to the Supreme Court with the support of organizations such as the National Abortion Rights Action League and the homosexualist Human Rights Campaign. However, Garland’s ambiguous record on life and family issues and his reputation for jurisprudential acumen also led some Republicans, such as Orrin Hatch, to support his nomination to the appeals court. In the same article Gorsuch defended the conservative John Roberts, whose appeals court appointment, like Garland’s, was delayed for years over politics.

Gorsuch is also reportedly quite popular with his predominantly liberal students at the University of Colorado Boulder law school, where he has taught a variety of classes since 2008. They praise him as “brilliant, thoughtful, and charming,” according to the Denver Post. The paper quotes one student describing Gorsuch as “a person of character and quality, intellectually curious and willing to debate all sides.” Liberal colleagues of Gorsuch told the Huffington Post that they found him to be “genial, tolerant and respectful.”

Other examples of Gorsuch’s sociability with social liberals goes well beyond the norms of respectful professionalism. A former law clerk for Gorsuch named Joshua Goodbaum tells the New York Times and the Huffington Post that Gorsuch was downright enthusiastic about his decision to “marry” another homosexual male in 2014. Goodbaum told the Times that Gorsuch was “thrilled for us,” so much so that he was “actually kind of syrupy about it,” and assured Goodbaum, “You’re going to see how wonderful this is for your relationship.’’’

The Times quotes another former classmate, Phil Berg, who said that he told Gorsuch as early as the early 1990s that he had a “boyfriend,” and the news was so well-received by Gorsuch that it led to a “special bond” between them. Berg has since “married” his boyfriend, Ronald Riqueros, and according to Berg, “Since Ronald and I married 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.’”

       

Phil Berg, pictured with Hillary Clinton (L) and his "husband" Ronald Riqueros (R), says he and Ronald have a “standing invitation” to stay at Gorsuch’s house.

“Everybody’s got him pegged as being more Scalia. I’m not sure I see that,” Christian Mammen, a friend and fellow Oxford student of Gorsuch who is now a Democrat, told the Times.

Gorsuch’s easy sociability and even camaraderie with leftists in both the judiciary and in his ultra-liberal Episcopal parish suggest two possibilities. The first is that, while he is a constitutional originalist with conservative leanings, Gorsuch is somewhat ambivalent about socially-liberal causes, and therefore doesn’t regard them as relevant to his personal relationships and or even his religious affiliation. The second possibility is that Gorsuch has concluded, after observing his mother’s ill-fated career of political belligerence and rancor, that one catches more flies with honey than with vinegar. It would seem, based on the evidence, that both of these influences, to varying extents, are in play in the soul of Gorsuch, although the latter probably weighs more heavily than the former.

Gorsuch’s liberal Episcopal affiliations and his ambiguous views on some social issues have resonance with those who find him uncomfortably similar to David Souter, a vaguely conservative Republican and Episcopalian whose views on social issues were largely unknown when he was appointed to the Supreme Court by George H. W. Bush in 1990. Souter went on to side with the Supreme Court’s liberal wing in crucial decisions upholding Roe v. Wade and striking down Texas’s anti-sodomy law. He resigned in 2009 before reaching the age of 70 and only a few months after the swearing-in of Barack Obama, which allowed the president to appoint leftist Democrat Sonia Sotomayor in his place. At least one conservative activist, Andy Schlafly, an opponent of Gorsuch’s Supreme Court nomination, has compared Gorsuch to Souter.

However, if Gorsuch proves to be what he generally appears to be, a very congenial and principled originalist with conservative sensibilities, his diplomatic skills and personal relationships on the court could prove to be very helpful to the cause of life and family. In particular, Gorsuch’s filial piety towards his former mentor Justice Anthony Kennedy, who is often the swing vote on social issues, could prove to be useful in persuading him to more socially conservative positions than he would otherwise take. In that way he might be far more effective than the caustic Scalia, whose legal philosophy he generally shares.

Summary of strengths and weaknesses of Neil Gorsuch from a pro-life and pro-family standpoint

Neil Gorsuch is a complicated, nuanced, and philosophical thinker rather than a formulaic or ideological jurist who votes along party lines, and it is therefore difficult to reduce his views to a series of public policy stances. Nonetheless, advocates of the value of life and family might want to simply know the upshot of this long analysis with regard to the causes for which they fight. In this writer’s opinion, Gorsuch’s dispositions from the pro-life and pro-family perspective can be summarized as follows:

On the right to life in general: somewhat mixed, but generally pro-life

On the right to life of the unborn: likely strong

On the criminality of euthanasia and assisted suicide: strong

On the right of the states to protect traditional marriage: probably strong on originalist constitutional grounds, weak on natural law grounds

On homosexual non-discrimination and other gay agenda issues: ambiguous, but likely weak

On transgenderism: likely strong

On religious liberty: strong

On states’ rights: strong

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