Put a pin in this one, because it surely says something about Neil Gorsuch’s integrity and disregard for intellectual honesty as well as the course of any LGBTQ cases that reach a Supreme Court that now counts him among its justices.
Although six justices—including Anthony Kennedy and Chief Justice John Roberts—summarily reversed an Arkansas Supreme Court ruling that essentially made a mockery of the high court's 2015 Obergefell decision legalizing same-sex marriage, Justice Gorsuch decided to send a clarion call to homophobes across the country that they have a steadfast ally on the bench.
The case, Pavan v. Smith, involved a pretty straightforward birth certificate issue in which Arkansas automatically lists the husband of a married mother on a child's birth certificate—even if he isn’t the biological father—thereby elevating him as a legal parent despite having no biological tie. The same was not true for same-sex spouses. The very simple solution was to reframe the policy in gender-neutral terms so a same-sex "spouse" would also be listed and therefore given equal legal status as a parent despite not being biologically related to the child. The Arkansas Department of Health refused to do that and the state Supreme Court upheld the agency’s judgment.
But the case was such an affront to the equal treatment of same-sex couples articulated in the Obergefell decision that the justices voted 6-3 to reverse that ruling without even hearing oral arguments. Gorsuch thought differently and deemed it necessary to issue the dissent—a very ominous sign, writes Noah Feldman for Bloomberg.
His reasoning was pretty doubtful. Gorsuch said that the Arkansas opinion didn’t defy the Obergefell precedent but rather sought to “earnestly engage” it. The state court, he asserted, merely accepted the state’s claim that there were “rational reasons” for a “biology based birth registration regime.”
The problem with this view of course is that Arkansas doesn’t have a biology-based registration policy. It has a marriage-based regime.
Exactly, which means Gorsuch is either far more intellectually challenged than we previously knew or he's just plain devious.
The court majority got it right:
"Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition."
But the bigger point here is that Gorsuch's misreading of Arkansas' law and subsequent misapplication of Obergefell is an invitation for more conservative litigation challenging the strength and breadth of the Supreme Court’s decision providing the same fundamental freedoms to same-sex couples as are available to opposite-sex couples.
What this means for conservatives is that Gorsuch -- with two more votes on his side -- wants more states to refuse to apply Obergefell according to its simple logic. Instead, Gorsuch is inviting state courts, some of them elected in states where gay marriage remains unpopular, to put up barriers to marriage equality.