Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Three – Religious Liberty

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

“Religious Freedom” is the buzzword of the season.  Both state legislatures[1] and the Trump Administration[2] are moving to outline protections for “freedom of conscience,” even when such protections impede other government mandates.  Such measures, if passed, will likely face court challenges, and may, ultimately, be reviewed by the Supreme Court.  As such, Judge Neil Gorsuch, if confirmed, will help define the contours of our religious rights.

Given Gorsuch’s open religiosity,[3] his views on religious rights have drawn significant media attention and speculation.[4]  Some argue that Gorsuch’s faith would lead him to broad readings of religious liberty rights, particularly in cases where the exercise of such rights clash with anti-discrimination mandates.[5]  Others note his membership in a fairly liberal congregation and come to the opposite conclusion.[6]  While Gorsuch has written extensively on issues of ethics and morality off the bench,[7] he has relatively few decisions on religious freedom and liberty to his name.  Looking at this small universe of cases, we find that Gorsuch takes a broad view of religious liberty, and, if confirmed, would likely be a champion for expanding the right to “freedom of conscience.”

Protecting “Religious Freedom” Supersedes Other Governmental Interests

Perhaps no opinion of Gorsuch’s elucidates his view of religious liberty as clearly as his opinion in Hobby Lobby Stores Inc. v. Sebelius.[8]  Hobby Lobby involved a challenge to the contraceptive-coverage requirement under the Affordable Care Act.[9]  The plaintiffs, the Greens, the owners of a for-profit corporation, maintained religious objections to providing coverage for four FDA-approved contraceptive devices, and sued to strike down the mandate.[10]  After the District Court denied an injunction, the Tenth Circuit, in an unusual move, decided to hear the case as an en banc court.[11]  A divided court narrowly found for Hobby Lobby, ruling both that for-profit corporations maintained religious rights,[12]  and that the Religious Freedom Restoration Act (RFRA) exempted them from the mandate.[13] 

Gorsuch concurred with the decision, writing separately on the related issue of the Anti-Injunction Act.[14]  Gorsuch’s opinion, nevertheless, included a powerful defense of the Greens’ claim, and of the expansiveness of RFRA.  In his opinion, Gorsuch described the Greens as unpopular religious minorities who need the protection of RFRA.[15]  Requiring them to provide contraceptive coverage, he noted, would be requiring them to be complicit in wrongdoing.[16] 

Gorsuch also laid out an expansive interpretation of RFRA, stating:

“Congress structured RFRA to override other legal mandates, including its own statutes, if and when they encroach on religious liberty.”[17] 

RLUIPA’s Mandates Do Not Require Accommodation of All Religious Needs

Alongside RFRA, the Religious Land Use and Institutionalized Persons Act (RLUIPA) extends a higher standard of scrutiny to regulations that interfere with the religious freedom of state prisoners.[18]  In interpreting RLUIPA, Gorsuch has not taken the broad view of religious liberty that he elucidated in Hobby Lobby.  Rather, his views have been more mixed.  While Gorsuch has defended religious freedom rights for prisoners, he has also shown a willingness to reject RLUIPA claims.

Gorsuch has rejected most of the RLUIPA appeals he has heard with fairly little discussion of the scope of the statute and the rights it affords.[19]  However, he does elaborate on his understanding of RLUIPA in Abdulhaseeb v. Calbone.  Abdulhaseeb involved a challenge to prison policy that denied a Muslim inmate a halal diet.  The Tenth Circuit reversed a lower court ruling dismissing the prisoner’s RLUIPA claims.[20]  In concurring with the majority opinion, Gorsuch emphasized the limited nature of the court’s decision and RLUIPA’s mandate.[21]  RLUIPA, Gorsuch noted, applies in cases where prison officials are essentially starving the prisoner by denying him any food that he can eat.[22]  However, lesser deprivations of religious liberty, such as the denying of meals that fall short of complete deprivation may not necessarily fall afoul of RLUIPA.[23]

At the same time, Gorsuch laid out a powerful affirmation of the religious rights of prisoners in Yellowbear v. Lambert.  Mr. Yellowbear, a member of the Northern Arapahoe tribe, sought access to the prison sweat lodge for religious exercises.[24]  The prison refused, citing security concerns, and the Tenth Circuit, in an opinion by Gorsuch, reversed.[25] 

Gorsuch begins his opinion with a paean to the religious rights of prisoners:

“While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them…”[26]

Gorsuch goes on to criticize efforts by judges to parse religious beliefs and exercises.[27]  Instead, he notes that RLUIPA authorizes only an inquiry into the sincerity of religious beliefs, not into their importance or significance.[28]  In so finding, Gorsuch rules that the prison must accommodate Mr. Yellowbear’s religious beliefs.

The Establishment Clause Does Not Bar Government Displays of Religion

Gorsuch’s jurisprudence also suggests that he does not consider the Establishment Clause to set up a “wall of separation” between church and state.  Instead, Gorsuch takes an originalist view of the Establishment Clause, turning to understandings of church-state separation from the time of the founding of the Constitution.  Gorsuch has further elucidated this view through a number of dissents from denials of en banc rehearing involving cases where the Tenth Circuit struck down government displays of religious artifacts.  In 2008, Gorsuch dissented from denial of en banc in a decision striking down the display of the Ten Commandments.[29] In dissent, he argued that “displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.”[30] 

Similarly, in 2010, Gorsuch was one of four dissenters from the Tenth Circuit’s decision not to rehear en banc a ruling striking down the display of memorial crosses on public roadsides.[31]  In that case, Gorsuch joined a broader dissent by Judge Paul Kelly,[32] as well as dissenting separately.[33]

Overall Assessment

In his 11 years on the federal bench, Gorsuch has participated in less than fifteen cases involving the Religion Clauses, RFRA, or RLUIPA.  Through these cases, however, Gorsuch has displayed his respect for religious belief, and a commitment to protect it against government regulation.  In cases such as Hobby Lobby and Yellowbear, Gorsuch has written aggressively against government impediments to religious exercise.  Furthermore, Gorsuch has also decried interpretations of the Establishment Clause that take religion out of the public sphere.  As such, Christians who are concerned that their beliefs may be under attack will find comfort in his decisions.

However, it must be noted that Gorsuch does not limit his use of “religious liberty” to Christians alone.  His writings make it clear that even minority religions deserve the protections of RFRA, RLUIPA, and the Free Exercise Clause.  As such, Gorsuch’s opinions could presumably be used to protect the Muslim student seeking to wear a hijab in their place of employment, a Sikh soldier’s right to serve wearing a turban, and a Hindu child’s right to have meat-free alternatives in school.

Nevertheless, Gorsuch’s broad interpretation of RFRA should concern minority groups, including African Americans, and the LGBT community, who have faced religious discrimination.  Taken to the logical extreme, such a broad reading of religious liberty could be used as a “sword” to avoid complying with anti-discrimination laws.  In other words, a businessperson could use their religious beliefs to justify only hiring men in the workplace, or refusing to serve interracial couples at a restaurant, or declining to offer spousal benefits to same-sex couples.  Such an understanding of RFRA could cripple efforts at civil rights enforcement.

Additionally, with both state legislatures and the administration pushing to allow “religious liberty” exemptions to anti-discrimination mandates, judges will likely be called upon to decide cases where both parties claim violations of religious liberty.  For example, in a case involving a Christian employer who seeks to prevent a Muslim employee from praying, arguing that such prayer violates their own faith, it is unclear whose religious rights would triumph.  Gorsuch’s relatively limited jurisprudence on these issues does not yield an answer on his own approach to such a question.

Overall, Gorsuch looks set to lead a significant expansion of the scope of “religious liberty.”  It will be up to the Senate Judiciary Committee to dialogue with Gorsuch to determine the nature and implications of such an expansion.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

[1] Laura Sydell, LGBTQ Advocates Fear ‘Religious Freedom’ Bills Moving Forward in States, Nat’l Pub. Radio, Feb. 26, 2017, http://www.npr.org/2017/02/26/515585721/lgbtq-advocates-fear-religious-freedom-bills-moving-forward-in-states.

[2] Michelangelo Singorile, Trump Transition Official: ‘Religious Freedom’ Order is Still Coming, Huffington Post, Feb. 26, 2017, http://www.huffingtonpost.com/entry/ken-blackwell-religious-freedom-order_us_58b2f87ee4b0a8a9b7830c3e.

[3] Transcript: Neil Gorsuch’s Remarks After Accepting the U.S. Supreme Court Nomination, Denver Post, Jan. 31, 2017, http://www.denverpost.com/2017/01/31/neil-gorsuch-full-remarks-supreme-court-nomination/ (“I am so thankful tonight for my family, my friends and my faith”).

[4] See, e.g., Kimberly Winston, 5 Faith Facts on Trump’s Supreme Court pick, Neil Gorsuch, Deseret News, Feb. 1, 2017, http://www.deseretnews.com/article/865672369/5-faith-facts-on-Trump7s-Supreme-Court-pick-Neil-Gorsuch.html.

[5] See Kate Shellnut, Trump’s Supreme Court Pick: Religious Freedom Defender Neil Gorsuch, Christianity Today, Jan. 31, 2017, http://www.christianitytoday.com/gleanings/2017/january/trump-nominates-neil-gorsuch-supreme-court.html.

[6] See Julie Zauzmer, Neil Gorsuch Belongs to a Notably Liberal Church – and would be the First Protestant on the Court in Years, Wash. Post, Feb. 1, 2017, https://www.washingtonpost.com/news/acts-of-faith/wp/2017/02/01/neil-gorsuch-belongs-to-a-notably-liberal-church-and-would-be-the-first-protestant-on-the-court-in-years/?utm_term=.dd1615233993.

[7] For example, the morality of assisted suicide.

[8] See, e.g., Mark K. Matthews and John Frank, What Neil Gorsuch’s Faith and Writings Could Say About His Approach to Religion on the Supreme Court, The Denver Post, Feb. 10, 2017, http://www.denverpost.com/2017/02/10/neil-gorsuch-religion/; Steve Vladeck, Hobby Lobby and Executive Power: Gorsuch’s Key Rulings, CNN, Feb. 1, 2017, http://www.cnn.com/2017/01/31/politics/hobby-lobby-executive-power-gorsuch-key-rulings/; Tribune News Services, Hobby Lobby Case Among Supreme Court Nominee Neil Gorsuch’s Notable Opinions, Chicago Tribune, Jan. 31, 2017, http://www.chicagotribune.com/news/nationworld/politics/ct-supreme-court-nominee-neil-gorsuch-notable-opinions-20170131-story.html; Carrie Johnson, Who is Neil Gorsuch, Trump’s First Pick for the Supreme Court, Nat’l Pub. Radio, Jan. 31, 2017, http://www.npr.org/2017/01/31/511850519/who-is-neil-gorsuch-trumps-first-pick-for-the-supreme-court; Christina Cauterucci, What Neil Gorsuch, Trump’s SCOTUS Pick Means For American Women, Slate, Jan. 31, 2017, http://www.slate.com/blogs/xx_factor/2017/01/31/what_neil_gorsuch_trump_s_scotus_pick_means_for_american_women.html.  

[9]Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1125 (10th Cir. 2013) (en banc).

[10] Id. at 1124-25.

[11] Id at 1125.

[12] Id. at 1137.

[13] Id. at 1145.

[14] Id. at 1152 (Gorsuch, J., concurring).

[15] Id. at 1152-53 (“[RFRA] doesn’t just apply to protect popular religious beliefs; it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve a refuge of religious tolerance.”).

[16] Id. at 1152 (“As they understand it, ordering their companies to provide insurance coverage for drugs and devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their faith disallows.”).

[17] Id. at 1156.

[18] Religious Land Use and Institutionalized Persons Act, Pub. L. 106-274, codified at 42 U.S.C. § 2000cc et. seq.

[19] See Ali v. Wingert, 569 Fed. Appx. 562 (10th Cir. 2014) (rejecting RLUIPA challenge to rule requiring prisoners to use their committed name alongside their religious name); Ciempa v. Jones, 511 Fed. Appx. 781 (10th Cir. 2013) (rejecting RLUIPA claim for failure to exhaust administrative remedies); Zapata v. Brandenberg, 291 Fed. Appx. 450 (10th Cir. 2008) (rejecting RLUIPA claim where prisoner was allegedly removed from faith-based program for refusing to convert).  See also Ali v. Province, 550 Fed. Appx. 619 (10th Cir. 2013) (rejecting First Amendment challenge by Muslim inmate).

[20] Abdulhaseeb v. Calbone, 600 F.3d 1301, 1320 (10th Cir. 2010).

[21] Id. at 1326 (“Whether and to what extent the statute goes further [than the facts of this case] is a question for another day.”).

[22] Id. at 1325

[23] Id. (“It is surely a burden to forgo an occasional meal.  But it’s not a substantial burden, and RLUIPA proscribes only government actions that substantially burden religious exercise.”) (emphasis in original).

[24] Yellowbear v. Lambert, 741 F.3d 48, 53 (10th Cir. 2014).

[25] See id.

[26] Id. at 52.

[27] Id. at 54 (“Just as civil courts lack any warrant to decide the truth of a religion…we also lack the license to decide the relative value of a particular exercise of religion.”).

[28] Id.

[29] Green v. Haskell Cnty. Bd. of Comm’rs, 574 F.3d 1235 (10th Cir. 2008).

[30] Id. at 1244 (Gorsuch, J., dissenting from denial).

[31] American Atheists, Inc. v. Davenport, 637 F.3d 1095, 1101 (10th Cir. 2010) (noting that Judges Gorsuch, Kelly, Tymkovich, and O’Brien voted to grant en banc rehearing).

[32] Id. (Kelly, J., dissenting).

[33] Id. at 1108 (Gorsuch, J., dissenting).

1 Comment

  1. Pingback: Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Seven – En Banc Decisions | The Vetting Room

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