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Gorsuch not easy to read on gay rights
Friends say he is sympathetic; his record is scant
Supreme Court nominee Neil Gorsuch has never had to rule on a case involving whether gays can legally marry. (Mark Wilson/Getty Images)
By Sheryl Gay Stolberg
New York Times

WASHINGTON — Phil Berg was nervous as he prepared to tell Neil Gorsuch that he was gay.

AIDS was still in the headlines at the time, the early 1990s, and same-sex marriage was a far-fetched notion. Some of Berg’s other friends had not reacted well to his news. So he moved with caution, slipping the word “boyfriend’’ casually into conversation with Gorsuch, his dear friend and Harvard Law School classmate.

“He didn’t skip a beat,’’ said Berg, now a corporate lawyer in Manhattan, recalling how that conversation led to a “special bond’’ between the two men. “It was a huge deal for me, and it made a lasting impression.’’

Now President Trump has named Gorsuch, 49, of the federal appeals court in Denver, his nominee to the Supreme Court at a time when the clash between gay rights and religious freedom is one of the most contentious questions on the court’s agenda.

Democrats and their allies are marching in lockstep to oppose Gorsuch, whose record they find deeply troubling, and gay pundits are painting him as a homophobe. But interviews with his friends — both gay and heterosexual — and legal experts across the political spectrum suggest that on gay issues, at least, he is not so easy to pigeonhole.

In nominating Gorsuch, Trump has picked a man with impeccable legal credentials and cast him in the mold of the justice he would succeed, the late Antonin Scalia, who once accused the court of bending to a “homosexual agenda’’ and voted against legalizing same-sex marriage. Gorsuch has said he cried when he learned of Scalia’s death.

Like Scalia, Gorsuch regards himself as an originalist, meaning he tries to interpret the Constitution based on the text as written by the founding fathers. But he is three decades younger than Scalia was when he died. He has had two openly gay clerks and he lives with his wife, Louise, and their two daughters in the liberal Boulder, Colo., where his church, St. John’s Episcopal, welcomes gay members.

That leads some friends to wonder if his jurisprudence might be closer to that of Justice Anthony Kennedy, who has carved out a name for himself as the court’s conservative defender of gay rights. Kennedy wrote the landmark 2015 opinion in Obergefell v. Hodges, which found a constitutional right to same-sex marriage — a decision some analysts trace to his upbringing in tolerant California.

“Everybody’s got him pegged as being more Scalia,’’ said Christian Mammen, a Democrat and intellectual property lawyer in San Francisco, who grew close to Gorsuch when they were pursuing doctoral degrees at Oxford two decades ago. “I’m not sure I see that.’’

Gorsuch’s nomination comes as some members of the lesbian, gay, bisexual, and transgender community think their very right to exist is threatened by the election of Trump.

While the president has said he is “fine with’’ same-sex marriage, and regards the Obergefell decision as “settled law,’’ he has also toyed with repealing an executive order by his predecessor, President Barack Obama, barring federal contractors from discriminating against gays. And with states like Texas seeking to limit the scope of the Obergefell decision, some activists and gay pundits warn of a coming war against same-sex marriage.

Part of the mystery around Gorsuch is that his record on gay rights is thin and thus difficult to parse. It suggests a deference to religious freedom and a strong skepticism toward using the courts to find a new constitutional basis for LGBT rights. But Gorsuch has never ruled on a case involving whether gays can legally marry.

He declined, through a spokesman, to be interviewed.

“There’s not an enormous amount to work with there; there are not many decisions to go on,’’ said Rachel B. Tiven, the chief executive of Lambda Legal, which represents gay plaintiffs and expects one of its cases, involving bathroom access for transgender people, to come before the Supreme Court this year.

Like other gay rights groups, Lambda Legal took what it called the “unusual step’’ of opposing the Gorsuch nomination even before the Senate confirmation hearings.

“It was unprecedented for Lambda Legal,’’ Tiven said, “but we are living in times that are not ordinary.’’

Just this week, gay author and blogger Michaelangelo Signorile published a piece in The Huffington Post headlined: “Why Neil Gorsuch Likely Believes It’s Perfectly Fine to Ban Gay Sex.’’ In it, he argued that Gorsuch “may be all mild-mannered and cuddly, but that doesn’t mean he wouldn’t in a heartbeat deny your very existence under the Constitution if you happen to be queer.’’

In 2015, Gorsuch sided with the Oklahoma Department of Corrections in rejecting arguments by a transgender woman who said the constitution guaranteed her a right to hormone treatment and to wear feminine clothing. And in two prominent cases, both of which reached the Supreme Court, he sided with employers who had religious objections to providing contraception coverage.