Juge Neil M. Gorsuch

Andrew Chung and Lawrence Hurley have a February 4 piece in the Huffington Post quoting Joshua Goodbaum. Goodbaum, who clerked for Judge Neil Gorsuch in 2009, married his partner in 2014. Quoting from the Huffington Post:

Goodbaum, now an attorney in Connecticut, recalled fondly their conversation on the week of the wedding: “He said, ‘This is a wonderful thing. You’ll see how your relationship grows.’”

Goodbaum, who in 2009 served as a clerk for the Colorado federal appeals court judge, added: “I have never felt the least whiff from him of homophobia or intolerance toward gay people.”

Of course this is all utterly meaningless. Not sensing homophobia is altogether different from viewing the judge as a champion for equal protection and due process, both of which are conservative values according to Theodore B. “Ted” Olson (co-lead attorney in what was then Perry v. Schwarzenegger).

The subtitle of the HP piece more accurately describes prevailing sentiments: “But people close to the judge can’t quite predict how he’ll rule on big social issues.”

The question that exists is whether or not Gorsuch’s judicial philosophy is as a conservative or a religious conservative. Is Gorsuch Ted Olson in his legal thinking or is he Scalia? Scalia employed a contrived doctrine of “originalism” to imply that he was making secular rulings when, for the most part, he was interested in imposing the teachings of the Church on public policy.

Most troubling is that fact that, in the Hobby Lobby case before the Tenth Circuit, Gorsuch determined that Hobby Lobby would be “complicit” in the birth control decisions of its employees if it provided certain birth control measure as part of its employee health insurance. The Supreme Court ultimately decided the case on the basis of Hobby Lobby’s extraordinary financial burden if it were to withhold the contraceptives in question.

If paying for insurance (required by the government) which provides certain contraceptives is an act that makes an employer complicit in the decisions of its employees then one has to wonder if Gorsuch would find that a florist was a participant in a same-sex wedding if she sold flowers to be used as for the nuptials. Ironically the issue before us is whether or not Gorsuch (touted as a Scalia clone) might reverse Scalia’s opinion in Employment Division v. Smith and find that there are religious exemptions to valid laws.

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