Thursday, February 02, 2017

Gorsuch may have been supportive of gays in the military as an undergraduate; conservative columnist George Will talks about the Ninth Amendment and natural rights

NBC News reported Wednesday that Neil Gorsuch had once appeared to oppose campus recruiters for the military at Harvard back in 1987 because all the services had banned gays under the infamous “123 Words” (as Randy Shilts had called it) initiated in early 1981, just as Reagan took office.  The updated NBC article is here.

The fact pattern is a bit more nuanced. In 1986, as an undergraduate at Columbia, Gorsuch had submitted a somewhat libertarian article about the right of people to support the military on campus but to have gay lifestyles.    Then NBC goes on to present two more archives that suggest Gorsuch had supported gays in the military and then corrected that.  The overall NBC story now says Gorsuch had taken a “dim view of campus protestors”.

But as I noted in “Chapter 4” of my first DADT book, it would have been very difficult to get a Supreme Court to strike down “don’t ask don’t tell” or earlier “absolute ban” policies (with asking) on narrow constitutional grounds alone. This eventually required Congress, in 2010.

Mark Zuckerberg was a freshman at Harvard when campus recruiters was a big issue because of DADT and would have been familiar with the controversy when he founded Facebook.

George Will offers an op-ed in the Washington Post today suggesting that Gorsuch may have more respect for “natural rights” of individuals than did Scalia, as noted in the Ninth Amendment.   Will also invokes the Declaration of Independence in his argument.

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