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Trump's 11th Cir. Pick Disappoints LGBT Community in 1st Opinion

By William Vogeler, Esq. on October 05, 2017 | Last updated on March 21, 2019

Justice Kevin Newsom, recently confirmed to the U.S. Eleventh Circuit Court of Appeals, didn't take long to find controversy.

With his first written opinion, Morrissey v. United States, Newsom said that a homosexual man could not deduct medical expenses for a child he fathered through invitro fertilization. Opponents jumped on the decision as soon as it hit the press.

LGBT advocates said Newsom got it wrong. But it wasn't the first time the justice has taken heat for his opinions.

IVF and $100,000 Later

Joseph Morrissey, a law professor, is a homosexual who was in a monogamous relationship with a male partner. In 2010, they decided to try to have children through IVF.

Morrissey was to be the biological father; one woman would donate the eggs; another would carry the resulting embryo to term. It cost more than $100,000, but it was successful.

With an amended 2011 tax return, Morrissey claimed a $9,539 refund as a medical-expenses deduction. The Internal Revenue Service denied the deduction, and he sued in federal court.

A trial judge dismissed his complaint, and Morrissey appealed. The appeals court affirmed.

IRC Section 213

The Eleventh Circuit said the deduction for "medical care" expenses must be for services provided to the taxpayer, his spouse, or dependent. In Morrissey's case, the expenses were almost all for the egg donor and the surrogate.

"The bottom line: the male body's distinctive function in the reproductive process is limited and discrete," Newsom wrote for the unanimous panel.

Peter Reilly, writing for Forbes, said the appeals court took a narrow view of the law. Gay rights lawyer Mary Bonauto told him the court was just wrong.

Newsom's first opinion was nothing, however, compared to his law review article equating privacy rationale in Roe v. Wade to Dredd Scott, the 1857 decision upholding slavery. That opinion got even more attention.

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