Supreme Court pick wins applause from religious freedom advocates

Washington D.C., Feb 1, 2017 / 10:16 am

Pro-life leaders and religious freedom advocates hailed President Trump's choice of Neil Gorsuch to fill the Supreme Court vacancy on Tuesday.

Gorsuch "has an excellent record on religious freedom," Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, told CNA.

"He has decided many cases that address that issue, and he's shown that he understands how to read the law," she added, citing as an example the Religious Freedom Restoration Act, which was at the heart of the Supreme Court's recent Hobby Lobby decision and the case of the Little Sisters of the Poor.

Professor Michael Moreland, a visiting law professor at the University of Notre Dame, called the judge "a superb nominee to the Supreme Court" and added that "he is a brilliant and careful jurist, and he has an especially strong record in cases involving religious freedom."

President Trump on Tuesday night announced his selection of Judge Gorsuch, currently on the U.S. Tenth Circuit Court of Appeals, to fill the vacancy on the Supreme Court which has existed since the death of Justice Antonin Scalia one year ago.

"Judge Gorsuch has a superb intellect, an unparalleled legal education, and a commitment to interpreting the Constitution according to its text. He will make an incredible Justice as soon as the Senate confirms him," Trump stated.

Gorsuch is an Episcopalian, and if confirmed by the U.S. Senate, he would alter the religious balance of the Court, which currently features five Catholic and three Jewish justices.

He attended Columbia University and Harvard Law School, and earned his doctorate at Oxford University, "where he was supervised by the internationally acclaimed philosopher of law and theorist of natural law and natural rights John Finnis," said Robert George, Princeton law professor and former chair of the U.S. Commission on International Religious Freedom.

A Marshall Scholar, Gorsuch clerked for Supreme Court Justices Byron White and Anthony Kennedy, worked at the Department of Justice as the principal deputy associate attorney general, and was nominated to the Tenth Circuit by President George W. Bush in 2006.

In his time on the Tenth Circuit, Gorsuch presided over major religious freedom cases like the cases of Hobby Lobby and the Little Sisters of the Poor against parts of the Obama administration's contraception mandate that employers provide cost-free coverage for contraceptives, sterilizations, and abortifacients in employee health plans.

In the Hobby Lobby case, decided by the Supreme Court in 2014, the Green family-owned craft chain claimed that the mandate violated the owners' religious beliefs because it forced them to provide coverage for drugs they considered to be abortifacients in employee health plans, and thus drugs they conscientiously objected to providing.

Gorsuch ruled in favor of Hobby Lobby on the Tenth Circuit. The Supreme Court later agreed.

The Little Sisters, meanwhile, claimed that the so-called "accommodation" offered by the Obama administration to objecting non-profits to opt-out of the mandate still forced them to violate their religious beliefs.

This was because in notifying the government of their objection, with the knowledge that contraceptives would still be provided to their employees, they would still "facilitate access" to contraception, which they believed to be cooperation with an immoral act.

The Tenth Circuit ruled against the Little Sisters, saying that with the "accommodation" offered, the sisters did not prove that a "substantial burden" was put on their faith by the government.

The dissent, which Judge Gorsuch joined, stated that "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?"

"I think [he] came to the right conclusion each time that respected religious freedom and recognized the issues that were at stake there," Severino said of Gorsuch's opinions in both cases.

She also cited his knowledge of the Religious Land Use and Institutionalized Persons Act, which was cited to uphold the religious freedom of a Native American prisoner in 2014 to access a house of prayer by himself at a prison. Professor Moreland called it a "powerful opinion."

"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 – at least in the absence of a compelling reason. In this record we can find no reason like that," Gorsuch wrote of the prisoner's situation.

The judge also "rejected a crude separationist view of the Establishment Clause" in his 2009 opinion about a Ten Commandments display outside an Oklahoma courthouse, Professor Moreland added.

Pro-life leaders also praised the selection of Gorsuch. Marjorie Dannenfelser, president of the pro-life Susan B. Anthony List, called him "an exceptional choice" for the Supreme Court.

He is "a distinguished jurist with a strong record of protecting life and religious liberty, as evidenced by his opinions in the Hobby Lobby and Little Sisters of the Poor cases, and in his doctoral dissertation in which he wrote that 'human life is fundamentally and inherently valuable,'" she said.

Gorsuch has not ruled on specific abortion cases, but Dannenfelser pointed to his previous work in his 2006 book "The Future of Assisted Suicide and Euthanasia" where he stated "human life is fundamentally and inherently valuable," and also wrote that "the intentional taking of human life by private persons is always wrong."

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"I also suspect he would – quite rightly – view such deeply contested moral questions as properly resolved under our Constitution through the political process and not by judges," Moreland said.

Pro-lifers also cited his dissent in the Tenth Circuit's denial of a re-hearing in Planned Parenthood Association of Utah v. Herbert, after Utah Governor Gary Herbert's move to defund Planned Parenthood was overruled in court.

His was an "important dissent" from the denial of a re-hearing, Ed Whelan, former clerk for Justice Scalia and president of the Ethics and Public Policy Center in Washington, D.C., noted in a conference call with reporters, saying it was "a very, very impressive opinion."

When asked by BuzzFeed News if there was concern that he had not ruled specifically on Roe v. Wade, the Supreme Court decision that mandated legal abortion across the country, Whelan continued to affirm his confidence in Gorsuch.

"How many lower court judges have written opinions on Roe v. Wade?" he asked.

"I look at his interpretive methodology and his character, and that gives me great comfort. It takes a very willful judge to misread into the Constitution, what the Supreme Court did in Roe and Planned Parenthood v. Casey. And I don't think Neil Gorsuch is that type of judge. He's shown in case after case that he's a serious textualist and originalist."