Bench Memos

Law & the Courts

More Andy Schlafly Smears of Trump Supreme Court Candidate Neil Gorsuch—Part 2

Numbering serially from my Part 1 post, let’s continue the march through Andy Schlafly’s ridiculous smears of Tenth Circuit judge Neil Gorsuch:

3. Schlafly declares that Gorsuch “has never said or written anything pro-life.”

But as I pointed out nearly two months ago in response to Schlafly’s first round of attacks, in his courageous doctoral dissertation turned book, The Future of Assisted Suicide and Euthanasia, Gorsuch propounds the principles that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” If that doesn’t count as “pro-life,” then what does?

Repeating myself further: Schlafly somehow continues to fail to acknowledge, much less credit Gorsuch for, Gorsuch’s powerful dissent (see pp. 16-27 here) from the Tenth Circuit’s recent denial of rehearing en banc in Planned Parenthood Association of Utah v. Herbert. In the aftermath of the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts, Utah governor Gary Herbert directed state agencies “to cease acting as an intermediary for pass-through federal funds” to Planned Parenthood’s Utah affiliate. But after the district court denied Planned Parenthood’s request for a preliminary injunction against Herbert’s directive, a divided panel, on very weak reasoning, ruled that Planned Parenthood was entitled to a preliminary injunction. Gorsuch’s dissent dismantles the panel majority’s reasoning.

4. Schlafly now invokes himself as a personal witness: “I knew him in law school and afterwards, and I’ve reviewed his opinions and his book.” Well, I have the same level of trust in Schlafly’s account of his personal knowledge of Gorsuch (which Schlafly somehow didn’t invoke in his initial attack) as he’s earned from his review of Gorsuch’s opinions and book: Somewhere between zero and negative infinity.

5. Schlafly now says that Gorsuch “supports special rights for transgenders.” More fully:

Gorsuch is also a big supporter [of] granting special rights to men who say they have a female general [sic] identity. He sided with civil rights for “gender identity” in 2009 by adhering to a Ninth Circuit opinion by the liberal Judge Reinhardt, which held the federal law called “Title VII” protects [sic] discrimination against gender identity. Kaslt [sic] v. Maricopa County Cmty. College Dist., 325 Fed. Appx. 492 (9th Cir. 2009) (Gorsuch, J., joining the court opinion). At the time virtually every other circuit rejected this liberal view. More recently Judge Gorsuch expressed his support for referring to biological men as women.

Let’s start with Schlafly’s misuse of Kastl. (The fact that he misspells it Kaslt is telling: An email criticism of Gorsuch from another source used this misspelling; I have to wonder whether Schlafly just borrowed that criticism without ever reading the opinion.)

In Kastl, Gorsuch, sitting by designation on the Ninth Circuit, joined an unpublished per curiam ruling that affirmed a district court’s grant of summary judgment against a man who identified as female and was barred from using the women’s restroom. That’s right: Schlafly’s primary support for his claim that Gorsuch “supports special rights for transgenders” and is “a big supporter [of] granting special rights to men who say they have a female general [sic] identity” is a case in which Gorsuch ruled against such a person.

In the course of ruling against the plaintiff, the Kastl opinion acknowledged and recited Ninth Circuit precedent, Schwenk v. Hartford (2000), for the proposition that “it is unlawful [under Title VII] to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women.” That Ninth Circuit precedent in turn rested on the Supreme Court’s (poorly reasoned) decision in Price Waterhouse v. Hopkins (1989).

Gorsuch’s duty in the case was to adhere to Ninth Circuit precedent. The objected-to proposition strikes me as an accurate statement of the Schwenk precedent, an opinion by Stephen Reinhardt that was joined by the senior judge on the Kastl panel. If Schlafly believes otherwise, he should try to make an actual argument. (It’s too complicated to go into here, but the proposition that Title VII protects everyone against being discriminated against for “not behav[ing] in accordance with an employer’s expectations for men or women” is not quite the same as the proposition that Title VII protects against discrimination on the basis of gender identity.)

Schlafly also claims: “More recently Judge Gorsuch expressed his support for referring to biological men as women.” Playing mindreader, I’m guessing that Schlafly is referring to the panel opinion that Gorsuch joined in Druley v. Patton (2015). In that opinion, Judge Jerome Holmes ruled that an Oklahoma state prisoner was not entitled to preliminary injunctive relief. The prisoner, who had changed his legal name to Jeanne Marie Druley and who had had two surgeries to give himself a purportedly female body, argued that receiving inadequate hormone medications and being housed in an all-male facility violated his Eighth Amendment rights.

Throughout his opinion, Holmes uses feminine pronouns for Druley. Gorsuch joins Holmes’s opinion in full.

As my own account shows, I strongly believe that pronouns should comport with objective reality and that no one has a right to dictate his preferred pronouns. That said, the situation with Druley is arguably complicated by the fact that he also had his birth certificate changed to identify him as female. Specifically, it might well be that principles of federalism call for federal judges (though not us ordinary citizens) to accept a person’s sex as defined under state law.

In any event, judges on a panel routinely accord considerable deference on wordsmithing to the judge who is authoring an opinion. Thus, even if I, as a judge, would have encouraged Holmes to use masculine pronouns or to try to write around the issue (which would be very awkward) and even if I would have written a one-sentence concurrence if he hadn’t, I think that it is beyond absurd to mischaracterize Gorsuch’s joinder as “express[ing] his support for referring to biological men as women.”



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