Upon the announcement of President Donald Trump’s nominee to the Supreme Court, originalists quickly came to a warm consensus, hailing Judge Neil Gorsuch as a strong defender of the Constitution and a fitting replacement for Justice Antonin Scalia.
In addition to the wide-ranging, bipartisan testimonials testifying to his character, intellectual heft, and various credentials, Gorsuch has demonstrated a commitment to the Constitution and the freedoms it seeks to protect, whether in weighing issues of executive power, regulatory overreach, or, quite literally, life and death. Further, he earned his Ph.D in philosophy under John Finnis of Oxford, a leading academic known for his work on natural law and natural rights, an experience which may have instilled a perspective that sets Judge Gorsuch apart from even the most conservative members on the bench.
What’s perhaps clearest and most notable, however, is his track record on religious liberty, a feature of the First Amendment widely and rightly hailed as the “first freedom.” Judge Gorsuch’s interpretations on the subject stretch far and wide, but as it relates to the economic and institutional intersections that have more recently been at the center of public debate, some key decisions are worthy of our attention.
As a judge in the Tenth Circuit Court of Appeals, Judge Gorsuch played an important role in two of the nation’s highest-profile cases, siding with Hobby Lobby and Little Sisters of the Poor against the Obama administration’s Affordable Care Act and HHS mandate on contraception.
In Little Sisters of the Poor Home for the Aged v. Burwell, Gorsuch joined Judge Harris Hartz’s dissent, which argued that the Little Sisters were, indeed, “substantially burdened” by the law. To believe otherwise, Hartz continues, requires a “dangerous approach to religious liberty” (emphasis added below):
The opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty. When 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. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?
This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative? A Christian could be required to work on December 25 because, according to a court, his core belief is that he should not work on the anniversary of the birth of Jesus but a history of the calendar and other sources show that Jesus was actually born in March; a December 25 work requirement therefore does not substantially burden his core belief. Or a Jewish prisoner could be provided only non-kosher food because the real purpose of biblical dietary laws is health, so as long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not substantially burdened. The Supreme Court has refused to examine the reasonableness of a sincere religious belief—in particular, the reasonableness of where the believer draws the line between sinful and acceptable—at least since Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 715 (1981), and it emphatically reaffirmed that position in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014).
In Hobby Lobby Stores, Inc. v. Sebelius, Gorsuch wrote a concurring opinion, affirming Hobby Lobby’s protection under RFRA and going further to highlight the dangers of activist courts that seek to “rewrite the religious complaint of a faithful adherent,” and the importance of erring on the side of freedom of conscience (emphasis added below):
All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case. As the Greens explain their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong. No one before us disputes that the mandate compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg. No one disputes that the Greens’ religion teaches them that the use of such drugs or devices is gravely wrong…
…And as we have seen, it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes “too much” moral disapproval on those only “indirectly” assisting wrongful conduct. 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.
If we fail to properly protect religious freedom, one of the most radical and essential freedoms of America’s founding, we’ll have little protection against the range of governmental pressures and abuses that threaten all else. If a government is willing to trample over matters of conscience, freedoms of association, the press, and economic exchange are not too far away.
As Jay Richards explains in Acton’s new volume, One and Indivisible: The Relationship Between Religious and Economic Freedom, religious liberty and economic freedom are “mutually reinforcing and indivisible,” offering a strong and robust foundation for a flourishing society. To diminish religious liberty is to instigate a “vicious circle” across the socio-political order:
The philosophical basis for religious freedom rests on the same foundation as the case for economic freedom: individual rights, freedom of association and the family, and the presence of a government with limited jurisdiction…An environment in which economic liberty is enjoyed is one in which religious liberty is likely to be enjoyed and vice versa. It is a virtuous circle. Similarly, in environments where our economic liberty is restrained, either by the state or by general lawlessness, our religious liberty is likely to suffer as well. This is a vicious circle.
If that is the case, then, if we wish to preserve religious liberty, what we need are robust defenses of both economic and religious liberty, framed in a way that makes it clear that these two liberties, these two freedoms, are mutually reinforcing and indivisible.
Judge Gorsuch has routinely shown himself able to discern the importance of these connections in the context of the Constitution, whether from the standpoint of a for-profit business or a non-profit ministry (and beyond).
For defenders of the free and virtuous society, his nomination couldn’t come at a better time.
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