Senate Democrats are in hand-wringing mode over what to do about the Neil Gorsuch nomination to the US Supreme Court. As usual, much of their focus is on what’s politically expedient, rather than what’s right. It’s a focus I believe is self-defeating, and has led to the current Republican dominance of government from the White House to the statehouses. The better course would be to study Judge Gorsuch’s record carefully, then oppose him as vehemently as they can, because he does not deserve to sit on the Supreme Court.
A Supreme Court justice should be intelligent, knowledgeable in the law, and skilled at legal argument. Judge Gorsuch passes these tests with flying colors. But that’s not all. A Supreme Court justice should also be impartial, treating each case on its merits, without any preconceived bias for or against any class of litigants. Here Gorsuch fails. His opinions evidence a powerful bias in favor of organized religion. There is every reason to believe, based on his record, that a litigant arguing for separation of church and state, or for equal protection for non-religious Americans, or for even-handed application of the laws to religious and non-religious people will not get a fair shake from Judge Gorsuch.
Much has been made of his opinion in the Hobby Lobby case before it reached the Supreme Court. I don’t really hold that against him, because I would have ruled the same way. The problem is the plain meaning of the statute under which it was decided, not the way the courts interpreted that statute. The Religious Freedom Restoration Act of 1993 (RFRA) is a “get out of jail free” card for anyone who can cite a religious reason for not complying with a federal law they don’t like.
What I would not have done is written the opinion the way Gorsuch did, as broadly as possible, throwing the barn door open for all sorts of nonsense claims. He wrote, for example, that: “Whether an act of complicity is or isn’t ‘too attenuated’ from the underlying wrong is sometimes itself a matter of faith we must respect.” Gorsuch is demanding not just that a religious person can ignore a law inconsistent with his or her faith, but that the religious person—not the court—is the one who gets to decide whether complying with the law contradicts religious belief.
It’s exactly the kind of reasoning that led to another opinion Gorsuch joined, this time in dissent, involving the Little Sisters of the Poor. These religious women decided that simply filling out a two-page government form was against their religion, even though the form had absolutely no effect on anyone. The employees in the facilities run by the Little Sisters are not going to get contraceptive coverage, period, whether or not anyone fills out that form. So what possible basis could they have for refusing to fill it out? According to Gorsuch, that’s not a question you, I, or any court has any business asking. If a person claims a “sincere” religious objection to filling out a form, or following any other law, that’s enough for him—or for anyone else as biased as he is in favor of religion.
When it comes to government using its power to advertise and promote religion, the Gorsuch view appears to be “anything goes.” Of all the ways Utah could have chosen to honor its police officers killed in the line of duty, they happened to pick the one method—giant crucifixes—that also served as an advertisement for religion. The majority on the Tenth Circuit panel thought that was a problem, but religion fan Gorsuch did not. He also, on two occasions, failed to perceive a problem with government-property monuments to the Ten Commandments, while other more neutral judges on his court could see the problem quite well.
In fact, the only instance I can find where Gorsuch ruled against so-called religious liberty was one where the decisive factor for him was that the drug-dealer parties involved weren’t really as religious as they claimed. This result required an astounding feat of mind-reading. It’s comforting to know that Gorsuch is capable of that. Isn’t he?
Yet none of these opinions reveal the most serious threat Gorsuch poses to the even-handed rule of law. Doing so requires a little more technical legal analysis than this website usually prefers. But please bear with me, because this is important.
Neither Hobby Lobby nor the Little Sisters, nor most other religious privilege cases (including Gorsuch’s drug dealer case), were decided under the First Amendment to our Constitution. That’s because the Employment Division v. Smith case, decided in 1990 with an excellent opinion written by none other than Antonin Scalia, cleared up confusion in previous case law with a simple rule. Unless a law is specifically aimed at hurting a particular religion, e.g. “Thou shalt not consume round white crackers on Sunday mornings,” you have to obey it. You can’t say, for example, that you belong to the Church of Body Modification, and therefore have the right to wear nose rings in a school that otherwise doesn’t allow them. Or that you have the right to refuse to serve LGBTQ people because God hates them so much.
The Smith case drove the God lobby nuts, because it undercut their power. In a nanosecond of congressional time (three years), RFRA became law, overturning Smith—not just for the federal government, but for every state, county, city, town, village, special district, and whatever else in the USA.
Then, amazingly, Marci Hamilton (the American Humanist Association’s 2015 Religious Liberty Award winner) managed to get RFRA itself overturned, at least with respect to jurisdictions other than the federal government. Yay, us! At least until states—twenty-one of them now—started enacting their own mini-RFRAs. You may recall the RFRA brouhaha in Indiana in 2015, notorious enough to get Mike Pence named as vice president.
But twenty-one is fewer than fifty, and the God lobby would love nothing better than to overrule Smith. That way, the neutrality rule would be erased altogether. Everyone, everywhere, even in states where a mini-RFRA to reverse Smith was considered but rejected, would be stuck with a rule allowing religious nuts to ignore laws as they see fit. And there would be nothing anyone could do about it, other than attempt to change the federal constitution.
What does Neil Gorsuch think? My mind-reading skills are not as good as his. But when I read his opinion in the Yellowbear case, reciting the history of Smith and subsequent developments using a lot more words than I just did, it’s impossible not to infer between the lines his utter disdain for the simple logic of Smith. I see someone who’d do cartwheels if given the chance to trash Smith and place the God experts—especially the Christian ones—above the so-called elected representatives of the so-called people.
There will be plenty of opportunities to do this. For example, there are cases in non-RFRA states involving laws requiring licensed hospitals to provide sterilization services to patients who request them. Catholic hospitals are resisting this, and the matter could easily wind up at the Supreme Court. This could provide Gorsuch, Alito, et al. the perfect opportunity to overrule Smith and exalt religion over neutral law.
Nearly as dangerous as this possibility is the effect Gorsuch could have on the pending Trinity Lutheran case, which seeks to erase the Blaine Amendments in thirty-eight state constitutions in one fell swoop. These laws, inspired by Thomas Jefferson’s Virginia Statute for Religious Freedom, prevent the transfer of state tax money to churches and church-related institutions. They are very popular with the taxpayers even in highly religious states. Naturally, the God industry hates them, and what they can’t win at the ballot box they are trying to win at the Supreme Court. I don’t see the slightest possibility that Neil Gorsuch would respect the will of the people of these thirty-eight states and leave their constitutions intact. If he can’t be defeated outright, it would be nice if his confirmation could at least be delayed until after the court has ruled on this case.
I hope the expedience-calculators in the Senate agree.