Gorsuch is also the only prominent judge who rejects the Absurdity Exception - wherein the text leads to absurd conclusions.
I would definitely agree with you there. It's still very early days for Justice Gorsuch and while I find myself disagreeing with him most of the time in high-profile cases, I do find him quite intriguing. I'll be interested to see how he rules on future free speech cases, particularly ones regarding indecency and/or obscenity. I've long believed this Court, even with its new strong conservative lean, has been and still is ready to upend precedent there (at least to a certain extent). I know even Justice Thomas has wanted to revisit FCC v. Pacifica Foundation.
I have written somewhat extensively before, but I believe it is unconstitutional for the government to discriminate on the basis of race, sex, and religion. Furthermore, I would rule it is unconstitutional for the government to ban private discrimination on such bases because it is an undue, non-compelling reason to restrict the Constitutional right to contract.
I think it is a problem to begin finding certain rights within the Constitution because it ascribes to positive law - that Courts must enforce Constitutional Law and then statutory law and then common law. I believe, as the Founders did, that the Natural Law supersedes any laws of man and a strong enough violation of it ought to be prevented by the Courts. Otherwise, the courts can not offer any protection to a minority’s rights from a majority large enough to pass Amendments to the Constitution.
I should note here that as far as gay marriage goes, for the Court to deny it, they must assert that a legislative body can force upon citizens an imperative to discriminate on the basis of gender as to who they can marry. Such legislative rights have never been found before - they have been invented out of thin air.
Contract law - under which marriage has fallen - has always been the first place where Courts have asserted natural law and rights which no democratic government may take away. In Burlington and Quincy v. Chicago, John Marshall Harlan wrote: “An affirmance of a great doctrine established by the common law for the protection of a private property. It is founded on natural equity, and is laid down as a principle of universal law. ... [the legislature] can no more take private property for public use without just compensation than if this restraining principle were incorporated into and made part of its state constitution.”
Justice Owen Roberts in Buchalter v. New York: “The due process clause of the Fourteenth Amendment requires that action by a state through any of its agencies must be consistent with fundamental principles of liberty and justice which lie at the base of our civil and political institutions, which not infrequently are designated as 'the law of the land.'”
It has now been asserted that there can be no natural law because it lacks a consensus, and any principle without consensus is unusable. In response to this assertion, I disagreed with the second premise and as such rendered this assertion unusable. Constitutionalism allows the government to trample any rights unprotected by the Constitution and to trample any rights it is capable of taking out of the Constitution.
On that first part, are you saying you support the Lochner Era concept of a liberty of contract?
I think one of the issues of your claim of the supremacy of natural rights is that it is contrary to the construct and interpretation of the Constitution as the supreme law of the land. What made this country unique in its founding and very premise is that the Sovereign of the United States is the people acting through the text of the Constitution, as opposed to vesting sovereignty in a hereditary monarch (as was commonplace at the time).
I would argue that there is nothing the courts can do if a strong enough majority passes a constitutional amendment properly enacted through Article V. To use our common example here, if Congress and the states had passed and ratified a constitutional amendment explicitly defining marriage as excluding all except "one man and one woman", the discussion would be over unless another amendment was ratified beyond that. I do not believe there is anything outside of the Constitution that can override the explicit text of the Constitution itself.
Maybe I'm mistaken, but my perception of natural law is one largely derived from traditional practices (and in many ways, religion). I don't see how one can make a case for Lawrence v. Texas based on natural law unless one were to go back to pre-Christian Greco-Roman culture. In terms of subsequent rulings on homosexuality, you end up reaching Obergefell. While I agree with the overall opinion, I believe its foundation could have been made sturdier. The opinion mostly relied on the fundamental right to marry, as recognized through various precedents. I've always believed the text of the Equal Protection Clause was all that was needed to affirm marriage equality as a constitutional right. If the 14th Amendment protects against discrimination on account of sex, as I believe it does, allowing and prohibiting marriage on account of sex must be held unconstitutional. Allowing individuals to marry only the opposite sex is contrary to the bar on allowing so-called separate but equal and is ultimately facially unconstitutional discrimination on account of sex.