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Gorsuch Already Broke His Promise, Proves to Be LGBT Enemy


Right out of the gate, Neil Gorsuch has shown that when it comes to the LGBT community, he’ll be using willful blindness to justify what can only be described as bigotry. This week, the Supreme Court summarily overturned Pavan v. Smith; in one quick move, the Court granted cert, overturned the lower court’s ruling, struck down the state statute, and threw the case back to Arkansas for it to pick up the pieces. It was a good day for logic, liberty, and LGBTs. But Justice Gorsuch began his freshman year on the bench by joining forces with Justices Alito and Thomas and writing a dissent is as illogical as it is intolerant.

Pavan presented the question of whether one of the usual suspect states –Arkansas- has to list both members of a same-sex couple on a birth certificate when a child is born to that couple. The plaintiffs in the case were two same-sex married couples — Leigh and Jana Jacobs, and Terrah and Marisa Pavan. Leigh and Terrah both became pregnant via artificial insemination and gave birth to children in Arkansas. The state then refused to list Jana or Marisa on the respective birth certificates, on the grounds that the state law only allows “the mother [to be] deemed to be the woman who gives birth to the child.”

I know. At first, it seems like Arkansas’ position might not be so bad. After all, only one woman can give birth to a child, and only one man can be the biological father of that child. On the surface, there’s nothing overtly sinister about requiring official state records to list only those people who are biologically connected to the child at hand. And if that were actually how the law worked, I might be inclined to agree. However, that’s not how the law works. Arkansas, along with most other states, makes no biological requirement for opposite-sex couples. When an artificially-inseminated woman is married to a man, it’s her husband, and not the sperm donor, who is listed as Daddy on the birth certificate. In fact, if a married woman conceives a child through infidelity, it’s still her` husband, and not the biological father, who gets listed. Oh, and when a child is adopted? The adoptive parents can go on the birth certificate. That’s because birth certificates are not medical records. They are family records.

Five SCOTUS judges understand that LGBT families deserve the same respect as opposite-sex families. The majority expressed its exasperation with Arkansas for its decision to keep on keepin-on with its homophobia in a one-page reprimand, which made the not-so-subtle point that the Court already specifically outlawed this kind of unequal treatment of same-sex couples with regard to birth certificates:

“Indeed, in listing those terms and conditions—the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified ‘birth and death certificates.’ That was no accident: Several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their chil-dren’s birth certificates.”

None of the decision in Pavan was surprising. But the five-paragraph dissent was a mélange of homophobia, myopia and deliberate indifference.

Gorsuch’s dissent started with this gem:

“Summary reversal is usually reserved for cases where ‘the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.’ Respectfully, I don’t believe this case meets that standard.”

Coming from a guy who insisted that same-sex marriage was a dead issue during his confirmation hearing, it’s pretty alarming to know that he now thinks that whether those marriages actually have legal value is not “settled and stable.”

Gorsuch went on to examine the Arkansas statute and decide that it “establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.” I’m not sure what statute Gorsuch was reading, but the one the majority was talking about did no such thing. It allowed parents to be listed on the birth certificate – whether or not those parents are biologically related to the child – as long as we’re talking about straight parents. Our newest justice backed up his position by explaining that there’s no “constitutional problem with a biology based birth registration regime.” I’m trying not to scream here. It’s not a biology based birth registration regime, Neil. Gorsuch’s dissent feels like a nutritionist explaining that dieters don’t need to avoid McDonalds because tacos are perfectly healthy.

Honestly, I expected better from our new justice. Gorsuch is not a stupid man. There is no way he didn’t notice that the effect of the Arkansas law is to treat same-sex couples different from how it treats opposite-sex couples. His attempt to blame his dissent on an error in the plaintiffs’ pleadings or a lack of specific remedy falls seriously flat when compared with the majority’s clear reasoning:

“Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents.”

Gorsuch was right about one thing, though. Pavan isn’t Obergefell. The Court wasn’t being asked to carve out a new right for the “fundamental” list. So too Pavan differs from the Gavin Grimm case, in which the courts were asked to rule on a novel interpretation of Title IX. Pavan was way, way easier. Gorsuch’s job was simply to stand by the commitment he repeatedly made while deflecting tough questions during his confirmation hearing: to uphold past precedent. There was only one rational reading of Arkansas’ birth certificate law: that it deprived gay couples of a right freely granted to straight couples. And that right goes beyond the birth certificate itself – as the document is important for parenting activities like school, sports, or parish registration, and medical care.

Gorsuch knows damn well that such disparate treatment constitutes discrimination; his refusal to call out Arkansas for its institutionalized bigotry is a failure of mammoth proportions not just for the LGBT community, but for all fair-minded Americans. I’d hoped we’d have a little longer before facing the cold truth that Gorsuch’s aw-shucks-I’ll-just-follow-the-law demeanor was a show for the cameras, but Pavan signals the end of the same-sex honeymoon period.





This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos