Supreme Court candidate’s opinion in gay rights case could affect his confirmation chances

The judge for the 11th Circuit Court of Appeals, who is in the running to replace the late Justice Antonin Scalia, waded back into the controversial topic of gay rights, which dogged his confirmation proceedings to become a U.S. Circuit judge more than a decade ago. Pryor’s opinion this week siding with a gay-straight alliance student group could serve as his rebuttal to any accusations from his political opponents that he is an anti-gay judge.

The 11th Circuit overturned on Tuesday a lower court ruling that prevented the formation of a gay-straight alliance group at a middle school in Leesburg, Fla.

A school board and superintendent rejected Carver Middle School students’ application for the gay-straight alliance group, which prompted further litigation from a student and the alliance. The student’s lawyers argued that the Lake County school board violated the Equal Access Act, which compels secondary schools with federal funding to provide equal access to extracurricular organizations. A district court dismissed the claim, but in Carver Middle School Gay-Straight Alliance v. School Board of Lake County, the 11th Circuit disagreed and sent it back to the lower court.

Pryor wrote that because Carver Middle School provided a way for middle school students to obtain high school credit, the school had courses that met the definition of “secondary education,” so the Equal Access Act applied to the middle school. That allowed the 11th Circuit to send the case back to the lower court.

If he is nominated to the high court, Pryor’s opinion in the Carver case may serve to help him combat expected accusations from President-elect Trump’s Democratic opponents that he is anti-gay. When President George W. Bush nominated Pryor to serve as a U.S. Circuit judge in 2003, Democratic senators blasted Pryor’s stance on gay issues.

California Sen. Dianne Feinstein, now the Democrats’ top member on the Senate Judiciary Committee, raised Pryor’s decision to “reschedule a family vacation at Disney World in order to avoid Gay Day” in the 2003 confirmation hearings as a question about his ability to judge cases involving gay plaintiffs fairly. New York Sen. Chuck Schumer, the incoming Senate majority leader, expressed concern then that Pryor “believes it is constitutional to lock up gays and lesbians for having intimate relations in the privacy of their own homes” in an apparent reference to Pryor’s defense, as Alabama’s attorney general, of a law that made sodomy a crime.

Pryor wrote in the Harvard Journal of Law and Public Policy in winter 2008 about the contentious confirmation proceedings and how his Catholic faith informed his perspective for resolving potential conflicts between his legal and moral duties.

“Faith properly informs the religious lawyer or judge, and morality is not in tension with fidelity to the law,” Pryor wrote in 2008. “Religious faith properly informs me, as a judge, in my fidelity to my judicial duty in at least four ways: in my understanding of my oath of office, in my moral duty to lawful authority, in my responsibility to work diligently, and in my responsibility to work honestly. Each of these ways is motivational; that is, each concerns the judge’s duty to perform his work well. None involves using religious doctrine to decide a case in conflict with the law.”

Whether Pryor’s argument about separating his faith and jurisprudence would satisfy his opponents in a potential confirmation fight remains to be seen. But Pryor and his allies would likely point to his reasoning in the Carver Middle School case as one example that would help counter charges that he is homophobic.

Trump has said he has narrowed his list of 21 potential candidates for the high court down to the final three or four, but has not indicated whether Pryor is included among those who have made the final cut.