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Gorsuch calls same-sex marriage decision ‘settled law’

Liz Goodwin
Senior National Affairs Reporter


WASHINGTON — Judge Neil Gorsuch referred to the Supreme Court’s recent same-sex marriage decision as “settled law,” using a stronger phrase than he has for other legal precedents.

Sen. Al Franken, D-Minn., asked Gorsuch to explain how his views on marriage equality have changed since 2004, when the George W. Bush administration was pushing for ballot initiatives that banned the practice in states.

Gorsuch replied that sharing his “personal views” would send a misleading signal to the American people that he might be inclined to rule one way or another on future cases that come up on the subject.

“It’s settled law?” Franken interrupted.

“It’s absolutely settled law,” Gorsuch replied.

But, the judge added: “There’s ongoing litigation about its impact and its application right now.”

Gorsuch used stronger language in describing the Supreme Court’s 2015 same-sex marriage decision than he did when asked about the court’s 1973 ruling in Roe v. Wade in favor of a woman’s right to have an abortion.

Earlier during the second day of his confirmation hearing, Democratic senators pressed Gorsuch to explain whether he believed Roe v. Wade was a “superprecedent” that should not be struck down. Gorsuch replied that it had been upheld repeatedly and was a precedent of the Supreme Court, but did not go so far as to call it “settled law.” Asked how he would have voted on the Supreme Court case striking down a city’s handgun ban as violating the Second Amendment, Gorsuch again referred to it as a “precedent” that a good judge should not approach “as if it had never been decided.”

While “settled law” has no specific legal meaning, it has undertones that have come up in previous confirmation hearings. Justice Samuel Alito declined to call Roe settled law, for example, in his confirmation hearing in 2006, saying that he instead viewed Roe as “a precedent that has now been on the books for several decades.”

Gorsuch has thus far not described any other case as settled law. He called Marbury v. Madison, the 1803 decision that established the Supreme Court’s right to judicial review, the “cornerstone” of the legal system. And he described New York Times v. Sullivan, a 1964 decision that raised the standard for public officials for proving libel charges, a “landmark” decision.

Carrie Severino, the chief counsel for the group Judicial Crisis Network, which is backing Gorsuch, said she didn’t believe Gorsuch was giving special weight to the same-sex marriage decision.

“I don’t think he was trying to distinguish it in any particular way. As he said, there’s also pending litigation in the aftermath of that case,” Severino said.

Gorsuch has been careful to avoid answering any questions that could be seen as previewing how he would rule on any case if he’s confirmed, saying it would be “grossly improper” for a judge to do so.

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