Religion is a divisive issue. Few subjects arouse more controversy than the extent to which the government should permit, or even facilitate, the free exercise of religion. Even in progressive circles, there continues to be passionate disagreement as to the role religion should play in a secular society, and thus, the optimal distance between church and state.
No matter the position one takes on the issue, few can deny the debate over religious liberty has far-reaching implications on civil liberties. These implications surfaced last month when President Trump signed an executive order temporarily barring the entry of all persons from seven predominantly Muslim nations and indefinitely suspending the entry of Syrian refugees.[1] Notably, the order gives priority to religious minorities, which Trump has clarified refers to Christian refugees.[2] Many prominent scholars of constitutional law have opined that this “travel ban” violates the First Amendment’s so-called “Religious Clauses.”[3] More specifically, scholars have argued that the referenced provisions contravene the Establishment Clause for preferring one religion to another, and the Free Exercise Clause for burdening affected Muslims’ exercise of their religious beliefs.[4]
After the Ninth Circuit rendered its decision against the White House effectively halting enforcement of the travel ban,[5] the Administration promised to issue a revised executive order, which is expected to materialize any day.[6]
Nevertheless, given the Trump Administration’s infancy, coupled with its apparent willingness to test the parameters of the First Amendment, it seems inevitable that the next Supreme Court justice will soon rule on important matters of religious freedom. So, the question is, where does Judge Gorsuch stand on religious freedom?
Quite predictably, his views seem to align with the more conservative faction of the Court.
This should surprise no one. On January 27th, in an interview with the Christian Broadcasting Network, President Trump vowed to deliver a Supreme Court pick that evangelical Christians would “love.”[7] Consistent with that promise, Judge Gorsuch attends an Episcopalian church[8] and he referenced his faith during his post-nomination speech last month.[9]
A review of Judge Gorsuch’s record, however, reveals greater insight into his judicial philosophies on the subject of religion.
First, Judge Gorsuch has apparently embraced a broad conception of religious liberty, as he appears willing to grant religious exemptions where others will not.
In the landmark Hobby Lobby decision, for instance, before the Supreme Court heard the matter, Judge Gorsuch joined the majority in his circuit, which held that a private, for-profit corporation was a “person” under the Religious Freedom Restoration Act.[10] The Tenth Circuit further concluded that the Affordable Care Act’s health plan imposed a substantial burden on the corporation’s “right” to practice its religion.[11] The court reasoned that the ACA’s contraceptive mandate infringed upon Hobby Lobby’s “sincerely held” religious beliefs by requiring that it provide employee insurance to cover four contraceptives which Hobby Lobby’s owners considered abortifacients.[12]
The Hobby Lobby opinion was striking for a number of reasons. For the first time, a court permitted the owners of a for-profit corporation to impute their own personal religious beliefs to their business.[13] Indeed, no court or statute had ever before recognized a right to religious exercise for a secular, for-profit corporation.[14] The court also refused to scrutinize Hobby Lobby’s purported views, opting instead to presume its beliefs were “sincerely held.”[15] Finally, the court’s decision had the effect of permitting religious employers to impose their views on employees that may not share their convictions.[16] While one may argue that limiting employees’ contraceptive options is a minor imposition, it is an imposition, nonetheless, which seems antithetical to the notion of free exercise. As such, the Tenth Circuit, including Judge Gorsuch, overlooked these critical shortcomings in the plaintiffs’ case to expand the scope of religious freedom.
Judge Gorsuch’s broad conception of religious liberty is further evinced by his joining of a dissent to the denial of en banc review in Little Sisters v. Burwell.[17] There a three-judge panel concluded that the ACA’s requirement that religious employers merely execute certain documents to opt out of the ACA’s contraceptive coverage did not “substantially burdened” the employer’s right to religious freedom.[18] The dissent, however, characterized the ruling as “clearly and gravely wrong” and a “dangerous approach to religious liberty.”[19]
Moreover, in a case called Yellowbear v. Lampert, Judge Gorsuch held that the Wyoming Department of Corrections violated a state prisoner’s religious freedom rights by denying the inmate access to a sweat lodge to practice his religion.[20] The district court found that honoring the inmate’s request was prohibitively expensive due to the plaintiff’s protective custody status, which mandated that he receive a personal escort to and from the sweat lodge, in addition to a large-scale lock down of the facility for his protection.[21] In spite of an obligation to defer to the prison administration,[22] Judge Gorsuch rejected the district court’s findings, and held in favor of the religious plaintiff.
Second, on separation of church and state, Judge Gorsuch’s views tend to steer right, as well. In general, he is less concerned with governmental endorsements of religious beliefs than many of his predecessors and future colleagues on the Supreme Court. More specifically, his record demonstrates that he is unbothered by public displays of sectarian symbols.
To comply with the First Amendment’s proscription of governmental actions “respecting an establishment of religion,” an action must not have the principal effect of advancing religion or endorsing any religious denomination.[23] In keeping with this tradition, the Tenth Circuit in 2009 struck down a display of the Ten Commandments on public property because it had the effect of endorsing Christianity.[24] The same court a year later held that 12-foot-tall memorial crosses erected by government officials on the side of state highways had the effect of conveying to observers that the state endorsed Christianity.[25]
When petitions for rehearing were denied in both cases, Judge Gorsuch dissented from both denials, vehemently arguing that his colleagues had misapplied the law.[26] Throughout the opinions, he also made clear that, given the opportunity, he would have voted to uphold the religious displays.[27]
Together these cases suggest that Judge Gorsuch is exceedingly tolerant of governmental endorsements of religion, while exceedingly intolerant of governmental action perceived to interfere with religious freedom.
Of course, what we can expect from Judge Gorsuch on the Supreme Court is anybody’s guess. It certainly is not uncommon for a Supreme Court justice to execute his or her duties quite differently than the appointing president anticipated.[28] Though, based on his decisions while sitting on the Tenth Circuit, it seems likely that Judge Neil Gorsuch will cast votes and deliver opinions consistent with President Trump’s promise to appoint a justice evangelicals will love.
[1] See Exec. Order No. 13769, 82 Fed. Reg. 20 (Feb. 1, 2017). Notably, the Order, itself, does not enumerate the seven countries affected. This list was provided by the White House’s Chief of Staff, Reince Priebus, in an interview with NBC’s “Meet the Press.” See Full Priebus Interview: Immigration Ban Could Include More Countries, National Broadcasting Company (Jan. 29, 2017), http://www.nbcnews.com/meet-the-press/video/full-priebus-interview-immigration-ban-could-include-more-countries-865258563844.
[2] See David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refuges, Christian Broadcasting Network (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees.
[3] See, e.g., Noah Feldman, Trump’s Travel Ban is an Attack on Religious Liberty, Bloomberg View (Jan. 30, 2017, 11:47 AM), https://www.bloomberg.com/view/articles/2017-01-30/trump-s-travel-ban-is-an-attack-on-religious-liberty; Erwin Chemerinsky, Trump’s Cruel, Illegal Refugee Executive Order, Los Angeles Times (Jan. 29, 2017, 10:05 AM), http://www.latimes.com/opinion/op-ed/la-oe-chemerinsky-trump-refugee-order-20170129-story.html; Jingyi Cui, Legal Scholars Question Immigration Ban, Yale Daily News (Feb. 1, 2017), http://yaledailynews.com/blog/2017/02/01/legal-scholars-question-immigration-ban/.
[4] See id.
[5] See Wash. v. Trump, 2017 WL 655437, D.C. No. 2:17-CV-00141, (9th Cir. 2017).
[6] See Maria Abi-Habib, Carol E. Lee, Donald Trump’s Revised Travel Ban Would Cover Seven Countries From Prior Order, The Wall Street Journal (Feb. 18. 2017, 6:12 PM), https://www.wsj.com/articles/trump-weighs-travel-ban-that-allows-in-green-card-holders-ensures-those-in-transit-aren-t-caught-in-system-1487438347
[7] David Brody, Brody File Exclusive: President Trump Says Evangelicals Will Love His Supreme Court Pick, Christian Broadcasting Network, (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trump-says-evangelicals-will-love-his-supreme-court-pick.
[8] David Lawler, Neil Gorsuch: Who is Donald Trump’s US Supreme Court Nominee? The Telegraph (Feb. 1, 2017, 12:15 PM), http://www.telegraph.co.uk/news/2017/02/01/supreme-court-nominee-neil-gorsuch/.
[9] Watch Neil Gorsuch’s Full Speech After Trump Nomination, The Washington Post, (Jan. 31, 2017, 8:37 PM), https://www.washingtonpost.com/video/politics/watch-neil-gorsuchs-full-speech-after-trump-nomination/2017/01/31/25464294-e81f-11e6-903d-9b11ed7d8d2a_video.html.
[10] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013).
[11] Id. at 1137-38.
[12] Id. at 1125. It bears highlighting that this theory rests on the premise that life begins at conception, and therefore, contraceptives that prevent uterine implantation induce “the death of the embryo.” Id. at 1140. This position is hotly disputed, however, evidenced by Judge Briscoe’s opinion. See id. at 1177 (Briscoe, J., concurring in part and dissenting in part) (“[T]here are, indeed, factual disputes regarding the actual potential of the challenged drugs to destroy a fertilized human egg.”).
[13] See id.
[14] See id. at 1180-81 (Matheson, J., dissenting).
[15] See, e.g., id. at 1122 (taking for granted that “the Greens have organized their businesses with express religious principles in mind” and “the Greens allow their faith to guide business decisions for both companies”).
[16] See id. at 1144.
[17] Little Sisters of the Poor v. Burwell, 799 F.3d 1315, 1316-18 (10th Cir. 2015) (Hartz, J., dissenting).
[18] Little Sisters of the Poor v. Burwell, 794 F.3d 1151, 1172-73 (10th Cir. 2015).
[19] Little Sisters of the Poor, 799 F.3d at 1316-17.
[20] Yellowbear v. Lampert, 741 F.3d 48, 53 (10th Cir. 2014).
[21] Yellowbear v. Lampert, No. 11-CV-346-J, 2012 WL 12846894, at *11 (D. Wyo. June 12, 2012).
[22] See Yellowbear, 741 F.3d at 59; see also Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (courts must give “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain . . . security . . . consistent with consideration of costs and limited resources.”).
[23] See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (providing that, for a statute to comply with the Establishment Clause, (a) it must have a secular legislative purpose, (b) its principal or primary effect must be one that neither advances nor inhibits religion, and (c) it must not foster “excessive government entanglement with religion.”); Allegheny Cnty. v. Am. Civil Liberties Union, 492 U.S. 57, 592 (1989), abrogated on other grounds by Town of Greece v. Galloway, 134 S.Ct. 1811 (providing that governmental action that “has the purpose or effect of endorsing religion” violates the Establishment Clause) (internal quotations omitted).
[24] Green v. Haskell Cnty. Bd. of Commr’s, 568 F.3d 784, 788 (10th Cir. 2009).
[25] Am. Atheists, Inc. v. Duncan, 616 F.3d 1145, 1158 (10th Cir. 2010).
[26] Green v. Haskell Cnty. Bd. of Commr’s, 574 F.3d 1235, 1244 (10th Cir. 2009) (Gorsuch, J., dissenting); Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1107-10 (10th Cir. 2010) (Gorsuch, J., dissenting).
[27] See, e.g., Green, 574 F.3d. at 1248 (“[P]ublic displays focusing on the ideals and history of a locality do not run afoul of the Establishment Clause just because they include the Ten Commandments.”).
[28] The most famous example from recent memory is Justice David Souter, who, despite his appointment by Republican President George H.W. Bush, commonly sided with the liberal faction of the Court on important social and political issues. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lee v. Weisman, 505 U.S. 577 (1992); Bush v. Gore, 531 U.S. 98 (2000). President Eisenhower’s oft-cited comment that the appointments of Justices Earl Warren and William Brennan, Jr. were “mistakes” also comes to mind. See Kim Isaac Eisler, The Last Liberal: Justice William J. Brennan, Jr. and the Decisions that Transformed America 158 (2003).