Written by Don Byrd

Day two of the Senate Judiciary Committee hearing of Judge Neil Gorsuch’s nomination to the U.S. Supreme Court included significant discussion of religious liberty topics. I count nearly 45 minutes devoted to the topic all together.

More than one Senator focused on Hobby Lobby, which Judge Gorsuch called “a hard case” and about which he later added, “If we got it wrong, I’m sorry” (see below). He was asked about religious tests, including the idea of a Muslim ban on immigration, and also talked about the Establishment Clause, which he called “a very difficult area” in which “the [Supreme] Court has struggled…to provide a consistent, comprehensive test.”

You can see clips from Tuesday’s hearing of substantive discussion of religious liberty topics below. (For clips from the opening statements, see Monday’s post.) For those especially interested in detailed legal discussions surrounding RFRA and Hobby Lobby, I highly recommend the judge’s exchange with Senator Chris Coons (D-DE), which is at the bottom of the list below.

In questioning from Senator Orrin Hatch (R-UT), Judge Gorsuch talked about his experience with the Religious Freedom Restoration Act (RFRA), particularly with regard to the Hobby Lobby case, which dealt with the contraceptive mandate in the Affordable Care Act. Gorsuch said that all judges who faced that question recognized it as a “hard case.” Watch below. (Please note: Firefox browsers may have a difficult time loading these embedded clips from C-SPAN.)

In questioning from Senator Patrick Leahy (D-VT), Judge Gorsuch discussed religious tests, including the idea of a Muslim ban, though he bristled at the notion that anyone knows how he might rule on the Trump Executive Order if it reaches the Supreme Court. 

You can watch the entire exchange below:

Senator Dick Durbin (D-IL) also discussed Hobby Lobby with Judge Gorsuch, focusing on the Supreme Court’s conclusion (and Judge Gorsuch’s himself) that the Religious Freedom Restoration Act (RFRA) applies to closely held for-profit corporations. Gorsuch defended and explained his reasoning in reaching that conclusion, putting the onus back on Congress. He added, “If we got it wrong, I’m sorry.”

Watch below:

In questioning from Senator John Cornyn (R-TX), Judge Gorsuch remarked that the separation of church and state “is a very difficult area, doctrinally,” adding: “The [Supreme] Court has struggled in Establishment Clause jurisprudence to provide a consistent, comprehensive test.” Watch below:

Senator Chris Coons (D-DE) and Judge Gorsuch engaged in a lengthy and remarkably substantive discussion about, corporate personhood and the Dictionary Act, applying RFRA to the sin of complicity, and the potential impact of Hobby Lobby on the liberty interests of others. Notably, here Judge Gorsuch did explicitly (and more than once) refer to RFRA’s substantial burden requirement, which he failed to mention during his earlier descriptions of the law. Watch this interesting exchange below: