Are Trump’s potential SCOTUS nominees anti-LGBT?

President Donald Trump added 20 names to his shortlist of nominees for a potential Supreme Court seat, and Democrats wasted no time in attacking a number of the candidates, including charging some with having a record of advocating for anti-LGBT policies.

“This list is teeming with individuals who have alarming anti-LGBTQ and anti-civil rights records, which should be disqualifying for any judicial nominee, let alone a nominee for the Supreme Court,” said Sharon McGowan, legal director of Lambda Legal. She went on to say that Trump’s potential nominees were “dangerous, ultraconservative ideologues.”

The Human Rights Campaign, the nation’s largest LGBT lobbying firm, called the 20 names a “wishlist” for conservative groups that have a history of “hostility towards progress, tolerance and equality,” reports NBC News.

“If the past is prologue, [Trump] may once again nominate people who would deny legal protections for LGBTQ people, take away the health care provided by the Affordable Care Act, undermine the fundamental right to vote, erode core civil rights laws, and fail to value the lives, needs and Constitutional rights of the LGBTQ community,” Alphonso David, president of HRC, said.

Gay rights organizations and media have a well-documented history of fear-mongering over Republican-appointed Supreme Court Justices, stoking anxieties which rarely hold water. Most recently, panic spread in left-wing circles over President Trump’s nomination of Neil Gorsuch to the nation’s highest court. “President Trump’s nomination of Judge Neil Gorsuch is deeply troubling for the LGBTQ community and for fair minded, justice-seeking people across the country,” HRC published in February 2017. Gay media called him an “anti-LGBTQ nightmare.”

Gorsuch was confirmed by a 54-45 Senate vote in April 2017. In 2020, Gorsuch, wrote the majority opinion in Bostock v. Clayton County, a case that outlawed workplace discrimination based on sexual orientation or gender identity.

“President Trump has an unmatched record of appointing judges who believe in applying the Constitution as written, not legislating from the bench,” White House spokesperson Judd Deere told NBC News. “Once again, the President is being transparent with the American people about the qualifications he considers paramount and who he would consider for a seat on the High Court to ensure this exceptional nation built on the rule of law continues for generations to come.”

So far, gay rights activists have singled out three justices on President Trump’s list of possible replacements for Justice Ruth Bader Ginsberg, who passed away Friday, as having a bias against LGBT people. Here are the facts:

Noel Francisco

Lambda Legal ‘s McGowan attacked Noel Francisco for supposedly driving an “anti-LGBTQ agenda” while serving as U.S. solicitor general from 2017 until earlier this year. Francisco’s critics have pointed to a Supreme Court brief he submitted in the cases that would be known as Bostock and Harris Funeral Homes.

The issue was whether the 1964 Civil Rights Act, which targeted discrimination based on race, color, religion, sex, and national origin, applied in cases of sexual orientation and gender identity – that is, whether the word “sex” in 1964 referred to what are now called LGBT rights.  For decade after decade, LGBT rights groups have argued that legislation was needed to extend federal anti-discrimination protections to LGBT people, precisely because that protection did not already exist in the Civil Rights Act of 1964. 

Francisco wrote that “Congress did not define the term ‘sex,’ which ‘was added to Title VII at the last minute on the floor of the House.’” He pointed to the case of Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986). He also noted General Electric Co. v. Gilbert, 429 U.S. 125 (1976), in which the Court “held that an employer did not discriminate ‘because of sex’ within the meaning  of Title VII when it refused to cover pregnancy in its disability benefits plan.” It was two years later that Congress amended Title VII by specifying that the “terms of ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy.”

This amendment has been Congress’s only change to Title VII regarding the term “sex.” For over 40 years, Congress had repeatedly declined to “pass bills adding sexual orientation to the list of protected traits in Title VII” – measures that LGBT rights advocates considered necessary because “sex” didn’t cover orientation.

Francisco noted that by 1991, “at least four courts of appeals had held that discrimination ‘because of sex’ in Title VII does not encompass discrimination because of sexual orientation — and no court of appeals had held otherwise.”

“Title VII’s prohibition on discrimination because of sex does not bar discrimination because of sexual orientation. The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation. Congress has recognized in other antidiscrimination statutes that sexual orientation is different from sex. An employer thus discriminates ‘because of sex’ under Title VII if it treats members of one sex worse than similarly situated members of the other sex. Discrimination on the basis of sexual orientation, standing alone, does not satisfy that standard.”

Francisco was not suggesting in his briefing that he was personally against LGBT rights. As Solicitor General, his job was to lay out what the law was, not what he wanted it to be. For agreeing with the position that had been taken for more than four decades by LGBT rights groups, he was labeled as anti-LGBT.

His position was certainly a reasonable one. 45 years ago, Rep. Bella Abzug (D-New York) proposed amending Title VII by adding “affectional or sexual preference” after the word “sex.” Her proposal died in committee. 

Within the feminist movement, people who claimed that “sex” referred to sexual orientation and/or gender identity were seen as radicals – the “lavender menace” – who might endanger the feminist cause. Indeed, the position that courts would interpret “sex” to mean those things was taken most famously by anti-feminist Phyllis Schlafly in her opposition to the proposed Equal Rights Amendment, which declared that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” When Schlafly, in public appearances, claimed that the term “sex” in the ERA would be interpreted in such a way, allowing same-sex marriage and outlawing biological-sex-segregated bathrooms, feminists in her audience often laughed.

The law has now changed in its official interpretation. The Supreme Court did extend the Civil Rights Act to include sexual orientation and gender identity, in a 6-3 decision written by one of President Trump’s two previous nominees for the Supreme Court. 

Lawrence VanDyke

Lawrence VanDyke currently sits on the 9th U.S. Circuit Court of Appeals. NBC News reported that VanDyke was confronted with a “scathing letter” during his confirmation from the American Bar Association (ABA) that suggested he would not treat LGBT litigants fairly. He broke down in tears at the accusation and affirmed that “it is a fundamental belief of mine that all people are created in the image of God. They should all be treated with dignity and respect.” 

Asked by Senator Josh Hawley (R-Missouri) if he could commit to treating every litigant “with respect and with dignity” if confirmed, VanDyke answered, “Absolutely, Senator. I would not have allowed myself to have been nominated for this position if I did not think I could do that.” When Hawley pressed VanDyke as to whether his answer included “members of the LGBT community and any other community that has been historically disadvantaged in this country,” VanDyke again said yes.

NBC News dug back to 2004 to find a note that VanDyke wrote for The Harvard Law Record in which he stated that there was “ample reason for concern that same-sex marriage will hurt families, and consequentially children and society,” citing an article in Bill Kristol’s magazine The Weekly Standard by Stanley Kurtz of the Hoover Institution. Earlier in the piece, he noted “that children on average fare best in stable, two parent families,” but that, regarding the effect of parenting by same-sex couples, “as we would expect with regard to such a new social institution as gay parenting, [research] is somewhat inconclusive (although many studies raise concerns about gay parenting).”

VanDyke was expressing what was a mainstream position in 2004. That year, a Gallup poll found that 61 percent of Americans opposed same-sex marriage. Pew Research Center polling showed at that time that Americans opposed same-sex marriage by a margin of 60 percent to 31 percent. 

VanDyke stated in early November 2019 that he had changed his position on gay marriage. His changed position put him in prominent company. Joe Biden voted for the anti-gay-marriage Defense of Marriage Act in 1995 and opposed same-sex marriage until 2012. In 2007, Barack Obama declared that “I’m a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue . . . my religious beliefs say that marriage is something sanctified between a man and a woman.” In 2004, Hillary Clinton said on the Senate floor: “I believe that marriage is not just a bond, but a sacred bond, between a man and a woman . . . going back into the mists of history as one of the founding, foundational institutions of history and humanity and civilization.” Although she was against amending the Constitution over the issue, she said, “I take umbrage at anyone who might suggest” that those like herself were less opposed than others to same-sex marriage.

Allison Jones Rushing

Allison Jones Rushing has been targeted by activists for affiliations with the Alliance Defending Freedom (ADF)—”a legal nonprofit that the Southern Poverty Law Center has deemed a ‘hate group’ for its espousal of beliefs such as the criminalization of homosexuality, legislation to restrict transgender people’s access to sex-segregated facilities and support of businesses to deny service to LGBTQ people,” according to the SPLC’s website.

The SPLC’s accusation of the ADF supporting the “criminalization of homosexuality” appears to relate to the organization’s  position in the 2003 Supreme Court case Lawrence v Texas. The ruling made anti-sodomy laws illegal in the U.S. Even The Huffington Post has admitted the ADF no longer seeks anti-sodomy laws in the U.S.

Rushing currently serves as a judge on the 4th U.S. Circuit Court of Appeals. When asked in 2019 if she would recuse herself from ADF-related cases if she were confirmed, she replied: “I would determine the appropriate action with the input of the parties, consultation of these rules and ethical canons, and consultation with my colleagues.”

Rushing denied that the ADF was a hate group, saying: “Hate is wrong, and it should have no place in our society. In my experience with ADF, I have not witnessed anyone expressing or advocating hate. A number of leading Supreme Court practitioners at well-regarded national law firms work with ADF. Members of Congress, including members of this Committee, have filed amicus briefs in the Supreme Court supporting ADF’s positions. I do not think members of this Committee or large reputable law firms would work with a hate group. I certainly would not.”

In her 2018 confirmation hearing for the 4th Circuit Court of Appeals, Rushing was asked: “In a 2013 panel discussion entitled “‘Enemies of Mankind’: Religion and Morality in the Supreme Court’s Same-Sex Marriage Jurisprudence,” you said that the Supreme Court’s majority in United States v. Windsor, which struck down the Defense of Marriage Act (DOMA), ‘chose to write the opinion in a unique way that calls it bigotry to believe homosexuality does not comport with Judeo-Christian morality.’ Where does the majority opinion make the claim that it is ‘bigotry to believe homosexuality does not comport with Judeo-Christian morality’? Please provide the specific pin cite.”

The quote was used completely without context. Rushing explained it came from a talk at a church in which she was explaining both sides of the case in Windsor. “For this talk, I was asked to explain the Supreme Court’s decision in United States v. Windsor, 570 U.S. 744 (2013), to an audience of non-lawyers as part of a presentation at a church. I described both the majority and dissenting opinions and did not express an opinion on the case,” she responded.

Conceivably, one would expect a Supreme Court Justice nominee to be able to understand and know both sides of a legal issue.

“The Court in Windsor quoted a House Report for the proposition that DOMA expressed ‘both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.’”

“The Court concluded that DOMA’s principal purpose was ‘to impose inequality.’ In the passage you quote in the question above, I was describing an argument made by the dissenting Justices. Specifically, the dissenters argued that, by virtue of this 8 reasoning, the majority opinion accused DOMA’s supporters of ‘act[ing] with malice—with the ‘purpose’ ‘to disparage and to injure’ same-sex couples,’ as opposed to making a ‘legal error,’ which ‘may be made in good faith.’”

A note on the SPLC:

The Southern Poverty Law Center was once a genuine civil rights organization, considered heroic for its targeting of the Ku Klux Klan. In recent years, it has become notorious for labeling organizations and individuals as purveyors of “extremism” or “hate,” sometimes merely for taking positions that SPLC disagrees with. Some of these are people whose traditional social or religious conservative positions on LGBT issues also were held, not long ago, by many or most political leaders, including Joe Biden, Hillary Clinton, and Barack Obama. 

SPLC’s recklessness in labelling people has had nearly disastrous consequences. As reported in 2013 by CNN, a man named Floyd Corkins “bought a gun and learned how to use it. He’d loaded three magazines. And he had stopped by Chick-fil-A to pick up 15 sandwiches, which he planned to smear in the dying faces of staffers he expected to kill at the Family Research Council in Washington. It would be a statement, he said, ‘against the people who work in that building’. . . Corkins told Judge Richard Roberts that he hoped to intimidate gay rights opponents.” 

His first victim, a building manager whom he shot in the arm, managed to wrestle him to the floor and hold him until police arrived. CNN noted that Corkins had “chosen the research council as his target after finding it listed as an anti-gay group on the website of the Southern Poverty Law Center . . . [He planned] to kill as many as possible, he told investigators.”

As noted by the watchdog group the Capital Research Center on its website Influence Watch, SPLC has cited as “anti-Muslim extremists” Maajid Nawaz, a British Muslim who defected from Islamist extremism to become a Liberal Democratic Party politician and advocate for reform within Islam, and Somali-born former Muslim Ayaan Hirsi Ali, an author and former member of the Dutch parliament for the liberal People’s Party for Freedom and Democracy (VVD) who stridently opposes Islamism and the practice of female genital mutilation. In 2014, it listed libertarian U.S. Senator Rand Paul (R-Kentucky) and Ben Carson, a renowned black surgeon who would later serve as Secretary of Housing and Urban Development, among neo-Nazis and white supremacists on its extremist lists.

The Republican National Committee recently denounced the SPLC, noting that the Obama administration used the SPLC’s “extremist” designations to target both actual hate groups and legitimate political organizations.