This Neil Gorsuch guy just might not be the brilliant legal powerhouse he’s cracked up to be. Take, for instance, this overview of Gorsuch’s dissent in Monday’s decision establishing that states can’t refuse to list same-sex parents on their children’s birth certificate. Gorsuch’s dissent, which was joined by Clarence Thomas and Samuel Alito, includes one serious factual error and some specious legal arguments, and raises the question of whether Gorsuch was just really sloppy, or outright evil in arguing that states have some reason to treat same-sex parents differently from all other couples.
First, the background stuff: In its landmark 2015 Obergefell v. Hodges decision, the Court said states not only had to let The Gays get married, but also that they must grant same-sex couples “the constellation of [marital] benefits” available to all married couples, and specifically mentioned they had to be treated equally in “birth and death certificates,” which you’d figure would have settled it.
But in the case decided Monday, Pavan v. Smith, Arkansas, the state refused to list Marisa Pavan on the birth certificate for her daughter, even though Marisa is legally married to the baby’s birth mom, Terrah Pavan, who used artificial insemination to get pregnant. For opposite-sex couples who use artificial insemination, the husband is listed on the birth certificate as father regardless of whether his sperms are used in the procedure. Obviously, straight people would go bugfuck crazy if the state insisted the sperm donor’s name be listed, or if the space for the second parent were left blank. But the state refused to list Marisa as the child’s other parent, because Arkansas.
The state claimed it had an interest in recording the children’s “biological parentage,” which was good enough for the state supreme court, because, again, Arkansas. But the Pavans insisted that under Obergefell, states have to treat same-sex couples “on the same terms and conditions as opposite-sex couples,” and since Arkansas lets non-donor daddies of turkey-baster babies be listed on birth certificates, then it has to do the same for two mommies, too. The majority on Monday decided in the Pavans’ favor, pointing out that the state’s birth certificates already consider “more than just genetics,” at least for heterosexual parents.
Gorsuch’s dissent, says Slate columnist Mark Joseph Stern, relies on two main arguments. One is just plain factually incorrect, and the other is outright illogical. First off, Gorsuch gets the facts about Arkansas law completely wrong:
[Gorsuch] wrote that the court should have dismissed the appeal because “in this particular case and all others of its kind, the state agrees, the female spouse of the birth mother must be listed on birth certificates too.” What? That issue lay at the heart of this case — but Gorsuch has it exactly backward: Arkansas explicitly refused to list “the female spouse of the birth mother” on birth certificates. That’s how the case wound up at the Supreme Court in the first place.
So, yes, the distinguished legal mind of Neil Gorsuch got the basic dispute at the heart of the case dead wrong and ass-backwards (a position, we should mention, that’s still technically illegal in Arkansas, despite the SCOTUS ruling in Lawrence v. Texas).
Gorsuch also claimed that the Pavans’ case didn’t belong in the Supreme Court because they should have sued to overturn the Arkansas statute on artificial insemination instead of challenging the state policy on whose names can go on birth certificates. That doesn’t make a hell of a lot of sense either. Shannon Minter, the legal director for the National Center for Lesbian Rights, which represented the Pavans, pointed out they didn’t want to overturn the state law on artificial insemination, they wanted to be afforded the same rights straight couples have under that statute. Challenging that law would have accomplished nothing, except maybe pissing off a lot of opposite-sex couples had it somehow been overturned.
Minter is pretty sure he knows what’s up with Gorsuch’s dissent:
“Gorsuch is plainly still attempting to revive the biological rationale for treating same-sex couples differently,” Minter said. “I think he’s trying to provide a road map for hostile state courts by suggesting that they should go back to these biological justifications. He wants to recast family law in this narrowly biologistic way that’s reverse engineered to exclude gay people. But that’s not going to work, because state family law is not just about biology. There is no state in the country that limits either legal parentage or birth certificates to biological parents.”
We already knew Gorsuch is prone to reading statutes and precedents in the narrowest way possible as long as that supports corporate fuckery or government discrimination, as in his rulings on Hobby Lobby, the “Frozen Trucker,” and the school district that didn’t bother educating special needs kids beyond absolutely minimal standards. And in the “Frozen Trucker” case, Gorsuch twisted a labor rule beyond recognition to help an employer win: The rule, you’ll recall, prohibited firing employees who refused to operate unsafe equipment, but Gorsuch said the truck driver deserved to be fired since he’d operated the tractor of his unheated truck, after being told to stay put and freeze, driving away from the trailer, which was unsafe since it had frozen brakes.
Given that history of extremely selective reading, we’re inclined to think the problems in his Pavan dissent aren’t merely innocent mistakes, probably. We’d expect Donald Trump to be dumb and duplicitous. Neil Gorsuch is more dangerous because he knows exactly what he’s doing.
In Wonkette’s official opinion, the newest Supreme Court Justice is a crook.
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[Slate]
