By Holly Hollman, BJC General Counsel

The composition of the U.S. Supreme Court was an important election issue to many Trump voters. When Justice Antonin Scalia died in February 2016, the Republican-led Senate refused to hold hearings on President Barack Obama’s nominee, Judge Merrick Garland. This political move created the opportunity for the next president to try to maintain or shift the balance of the conservative-leaning Supreme Court. Specific issues of concern for many included abortion, gun rights and religious liberty.

President Donald Trump’s nominee, Judge Neil Gorsuch, has been praised as a conservative suitable to fill Scalia’s seat. Gorsuch served for ten years on the 10th U.S. Circuit Court of Appeals, and a couple of studies comparing Gorsuch’s judicial record with Scalia’s and the records of members of the current Court indicate he may be more conservative.

The Baptist Joint Committee for Religious Liberty examined Gorsuch’s church-state record. Now that he has been sworn in as our newest Supreme Court justice, these previous rulings and statements give an idea of how he might rule in the future.

 

What does having Neil Gorsuch on the Supreme Court mean for religious liberty?

 

Political labels of “conservative” or “liberal” are not particularly indicative of strong support for religious liberty for all. The American legal tradition protects religious liberty, through the First Amendment and other laws, by ensuring the right to exercise religion and prohibiting the government from establishing religion. Some conservatives may place more emphasis on free exercise or majoritarian religion, and some liberals may place more emphasis on “no establishment” and protecting minorities, but principles in support of both Religion Clauses are essential and deserving of bi-partisan respect.

Justice Scalia had a notably weak view of both clauses, one that provided little protection for free exercise and allowed government to favor religion so long as it didn’t prefer one religion over another.

Justice Scalia’s weak view of the Free Exercise Clause was evident in his majority opinion in the infamous 1990 Employment Division v. Smith case, which gutted the Free Exercise Clause and eventually inspired congressional action to pass federal statutes to provide a higher standard of protection for religious exercise. The Religious Freedom Restoration Act of 1993 (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) were both passed with broad bi-partisan support at the urging of a coalition of religious and civil liberty organizations led by the Baptist Joint Committee. Those statutes, more often than the Free Exercise Clause, now provide the basis for religious claims in the courts.

In Establishment Clause cases, Justice Scalia never found a challenged government action violated the Establishment Clause. His view of “neutrality” was much weaker than one that requires government to stay out of religion. Justice Scalia even said that there is nothing wrong with government favoring religion over irreligion. In his decisions, he described the Establishment Clause as prohibiting the government from favoring one religion over another but as permitting the favoring of religion – particularly majoritarian religions – over nonreligion.

If Gorsuch is a justice in the model of Scalia on church-state matters, the closely divided decisions that have marked much of the Court’s jurisprudence in this area for a long time will likely continue. Unanimity or strong majorities are possible at times, as the Court has shown especially where statutory protections apply, or as in a case like Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012), where principles of free exercise and no establishment supported the Court’s decision to uphold the “ministerial exception” that recognizes broad autonomy rights for church ministries. In most other cases, however, the Court will be sharply divided over determining the breadth and boundaries of religious liberty.

While serving on the 10th U.S. Circuit Court of Appeals, Gorsuch heard several cases dealing with religion that give some insight to how he may approach religious liberty cases.

Free exercise of religion

In cases decided pursuant to federal statutes designed to protect religious exercise, Judge Gorsuch has often given thoughtful attention to religious claims and statutory elements. RFRA and RLUIPA have the same three main components: the government may not (1) substantially burden a person’s exercise of religion unless it is (2) to further a compelling governmental interest using (3) the least restrictive means. For the BJC, what matters is whether a judge approaches each case with fairness and fidelity to the law to protect religious liberty for all, not whether a particular claim succeeds or fails.

In Yellowbear v. Lampert (challenging a prison’s refusal to allow a Native American prisoner any access to its sweat lodge), Judge Gorsuch’s decision evaluated each of these three components in a thorough and thoughtful manner. Unfortunately, he did not apply this attention to these same statutory elements in other instances. As has been widely reported, Gorsuch had a role in two RFRA cases that challenged aspects of the Affordable Care Act’s contraceptive mandate, cases that eventually went to the U.S. Supreme Court: Hobby Lobby Stores, Inc. v. Sebelius and Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Burwell. In both cases, Gorsuch sided with the employers who made religious claims to avoid legal duties to provide certain employee health benefits.

In his written opinions and testimony during his confirmation hearings, Gorsuch repeatedly summarized the RFRA/RLUIPA standard as protecting sincerely held religious beliefs instead of using the statutory text calling for the protection of religious exercise. In two cases involving non-Christian prisoners, Judge Gorsuch discussed the substantial burden inquiry as leaving room for a burden that would be less than substantial. For instance, he wrote that missing an occasional meal or having less than at-will access to a sweat lodge may not be substantial but total exclusion from meals or the sweat lodge would be. But, in Hobby Lobby and Little Sisters (cases involving Christian beliefs of for-profit and nonprofit organizations), he fully defers to the plaintiffs’ self-determination that their burdens are substantial. Also troubling in Hobby Lobby is his failure to consider that a compelling government interest necessarily encompasses impact on third parties. The government’s interest in health care is not to protect a vague and abstract concept but to protect the health of real identifiable people. Using the same limited record as the 10th Circuit, the U.S. Supreme Court found a compelling government interest that Judge Gorsuch and the rest of the 10th Circuit majority were unable to find.

No establishment

We have only a limited view into Judge Gorsuch’s Establishment Clause jurisprudence since he has never been on a 10th Circuit panel that decided an Establishment Clause case. He has responded, however, to two 10th Circuit decisions which found religious displays on government property unconstitutional: Green v. Haskell County Board of Commissioners (a Ten Commandments monument outside a courthouse) and American Atheists v. Duncan (12-foot-tall roadside memorial crosses to honor fallen highway patrol officers). In both cases, Judge Gorsuch disagreed with the panel’s decision and advocated that a review by the entire 10th Circuit was appropriate.

In doing so, Judge Gorsuch made clear that he thinks some of his colleagues on the 10th Circuit routinely misapply the “reasonable observer” test, also known as the endorsement test. This test, frequently used in religious display cases to help a court decide whether or not the monument is a government establishment of religion, highlights the importance of a community’s history and the display’s context. Under this test, a religious display is unconstitutional if it sends a message to adherents of being political insiders and consigns nonadherents to the status of political outsiders. Judge Gorsuch criticizes his colleagues’ application of the test and, at times, the test itself, but he fails to offer an alternative.

 

Conclusion

 

Gorsuch is an experienced judge with impressive academic credentials. In religious liberty cases, his record is mixed.

At times, he has given thoughtful attention to religious claims and carefully applied federal statutes designed to protect free exercise. In other cases, he has been deferential to religious claims beyond what the law requires. That approach puts religious freedom at risk, as does a view of Establishment Clause cases that would allow government endorsement of religion.

From the March/April 2017 edition of Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.