BLOGJudge Gorsuch, President Trump’s Supreme Court Nominee, Is No Stranger to Religious Freedom

By Michael P. Farris Posted on: | January 31, 2017
By: Michael Farris & Jim Campbell

After much build up, rumor, and speculation, President Donald J. Trump has announced that Judge Neil Gorsuch is his pick to fill the current opening on the United States Supreme Court. While ADF does not take a position on the merits of Supreme Court nominees, here are some things that you might be interested to learn about him.

Judge Gorsuch has been a judge on the United States Court of Appeals for the Tenth Circuit for 10 years. He was nominated in May 2006 and confirmed two months later by a unanimous voice vote.

His career has also included prior work at the United States Supreme Court. Indeed, soon after graduating from Harvard Law School in the early 1990s, he clerked for both Justices Byron White and Anthony Kennedy.

As Eric Citron wrote earlier this month at SCOTUSblog, Judge Gorsuch’s “background is filled with sterling legal and academic credentials,” including that he was “a Marshall Scholar at the University of Oxford” where he earned a Doctorate in Legal Philosophy.

Citron went on to offer this high praise for Judge Gorsuch:

“He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches—or at least evokes—that of the justice whose seat he would be nominated to fill. In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.”

Given Judge Gorsuch’s extensive experience as a judicial law clerk and as a federal judge, he is no stranger to the legal issues that ADF litigates. In particular, he has decided many cases involving religious freedom.

ADF represented numerous clients challenging the Obamacare HHS mandate. In those cases, we defended businesses and nonprofit religious organizations that could not in good conscience fund (or allow the government to use their insurance plans to fund) abortion-inducing drugs. In the most notable of those cases, ADF defended Conestoga Wood Specialties before the Supreme Court, and ultimately prevailed in a significant win for religious freedom.

Judge Gorsuch wrote a concurring opinion in a case that upheld a similar religious-freedom claim raised by the owners of Hobby Lobby Stores. In that opinion, he recognized that the owners objected to “personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg.”

Disagreeing with his fellow judges who would deny the owners’ right to live consistently with their faith, Judge Gorsuch wrote that “it is not for secular courts to rewrite the religious complaint of a faithful adherent” or to question the reasonableness of their convictions. A conscientious objection, Judge Gorsuch said, is “a matter of faith [judges] must respect.”

A few years later, Judge Gorsuch joined an opinion in a similar case involving Little Sisters of the Poor, a home for elderly residents in Denver, Colorado. After a three-judge panel of his court ruled against the Little Sisters and threatened to force them to violate their convictions, Judge Gorsuch joined an opinion dissenting from the denial of en banc review. That opinion said in no uncertain terms that “[w]hen a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.” This opinion shows that Judge Gorsuch would’ve ruled in favor of the Little Sisters and upheld their liberty.

In another case, Yellowbear v. Lampert, Judge Gorsuch reversed a lower court’s decision denying a Native American prisoner’s religious-freedom claim. The prison officials tried to violate his rights by claiming that it would be “unduly burdensome” to accommodate his faith. Judge Gorsuch rejected that argument, characterizing the government’s argument as “conclusory legalese” that did not come close to satisfying its burden to override the prisoner’s religious freedom.

Interestingly, Justice Samuel Alito later adopted the same analysis in a case entitled Holt v. Hobbs. There, Justice Alito criticized other lower courts for deferring to “prison officials’ mere say-so that they could not accommodate [a prisoner’s] request” to exercise his faith.

Judge Gorsuch has also written opinions in cases involving Establishment Clause issues. One such case involved a lawsuit that American Atheists filed to force the State of Utah to remove cross-shaped roadside memorials honoring Utah troopers who died in the line of duty. After a panel of judges on the Tenth Circuit declared those memorials unconstitutional, Judge Gorsuch wrote an opinion dissenting from the denial of en banc review.

In it, he colorfully explained that the panel mistakenly viewed the memorials through the eyes of a so-called “reasonable observer” who was “biased” against religion, “full of foibles and misinformation,” “prone to mistake,” and burdened with “selective and feeble eyesight.” Unlike the majority of his fellow Tenth Circuit judges, he would have upheld the troopers’ memorials against the American Atheists’ challenge.

These few cases provide a limited snapshot of Judge Gorsuch’s rulings in religious-freedom cases. Should the Senate confirm his nomination, he’ll undoubtedly have future opportunities to decide these sorts of issues as a justice of the U.S. Supreme Court. And we hope that these decisions are a preview of things yet to come. 

Michael P. Farris

President, CEO, and General Counsel

Michael P. Farris is president, CEO, and general counsel of Alliance Defending Freedom. He brings to the role wide recognition for his successful work on both the national and international stage.

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