In Gorsuch hearings, questions of religious liberty and the law

‘The balance of faith and freedom, the balance of free exercise rights and … self-determination rights, are pretty fundamental questions,’ says Sen. Chris Coons, a member of the committee that will question the high court nominee, in an exclusive interview.

Henry Gass

MARCH 21, 2017  WASHINGTON—Of all the people to speak on the first day of what promises to be a grueling week of hearings, Judge Neil Gorsuch – the man whose confirmation to the US Supreme Court is being deliberated – was notably concise.

After thanking his family, his law clerks, and his mentors, he grew emotional talking about his late Uncle Jack, an Episcopal priest, and his childhood in Colorado.

“In my childhood it was God and Byron White,” he said, referencing the former Supreme Court justice whom he clerked for. “A product of the West, [Justice White] modeled for me judicial courage.”

Indeed, “God and Byron White” could be a succinct description for the lines of inquiry Republicans and Democrats can be expected to take when the Senate Judiciary Committee begins questioning Judge Gorsuch Tuesday. As the minority, Democrats can’t boycott him the way Senate Republicans did with Judge Merrick Garland, nominated by former President Obama. Instead they have tasked themselves with probing for weak spots in a nominee who for many legal observers has a close-to-spotless paper trail.

One line of inquiry that Democrats seem intent on pursuing concerns Gorsuch’s reputation as a staunch defender of religious liberty.

His broad interpretations of the rights and protections of religious believers – sometimes at the expense of large numbers of other citizens – have been a cornerstone of his jurisprudence during a decade serving on the US Court of Appeals for the 10th Circuit.

“That he comes down on side of religious liberty, even when it significantly infringes on the autonomy and liberty interests of large numbers of people, I think that’s an interesting area worthy of further explanation,” says Sen. Chris Coons (D) of Delaware, a member of the Judiciary Committee, in an exclusive interview with the Monitor.

For a country founded as a sanctuary for people fleeing religious persecution and marginalization around the world,  “I think [those questions] should be subject to special consideration,” he adds. “The balance of faith and freedom, the balance of free exercise rights and autonomy or self-determination rights, are pretty fundamental questions that go back to the foundation of our country.”

‘The problem of complicity’

Gorsuch has pushed the envelope on this question, not least in perhaps his most noteworthy case from the 10th Circuit: “Hobby Lobby Stores, Inc. v. Sebelius.”

The case involved a family-owned company based in Oklahoma City that claimed that a mandate in the Affordable Care Act to provide contraception to its 28,000 employees made it complicit in an act that violated its religious beliefs. The 10th Circuit, with Gorsuch in the majority, sided with the company, and the Supreme Court narrowly upheld the decision 5 to 4.

Along two other judges in the majority, Gorsuch said that he would have gone even further, and that individual business owners under the mandate should be able to make similar claims.

“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,” he wrote in his opening. “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.”

Conservatives who oppose such ideas as abortion rights, transgender bathroom access, and same-sex marriage often base their objections on religious grounds. And what concerns people like Senator Coons – who is a devout Presbyterian with both law and divinity degrees from Yale – is the interpretation that religious freedom rights outweigh the rights and protections of others.

“One of the things I’m interested in is essentially allowing the complicity concerns of a small family to trump the liberty concerns of thousands and thousands of people,” says Coons.

His judicial privileging of religious freedom has seen Gorsuch produce opinions that would likely appeal to liberals – including a majority opinion he wrote ruling that a Wyoming prison must allow a Native American inmate access to the prison’s sweat lodge. But his jurisprudence on religious freedom has endeared Gorsuch to conservatives.

Many conservatives also share Gorsuch’s view on public displays of religion, with the judge dissenting from majorities in the 10th Circuit on cases that struck down an Oklahoma county’s Ten Commandments display (Gorsuch said the Commandments are not “just religious” and thus don’t violate the Constitution), and that ruled the Utah Highway Patrol couldn’t erect 12-foot crosses to memorialize fallen officers. (Gorsuch believed that a “reasonable observer” would not think the crosses promoted Christianity.)

In his opening statement at Monday’s hearing, Sen. Jeff Flake (R) of Arizona said Gorsuch has “demonstrated support for religious freedom,” and then quoted the judge’s concurrence in the Hobby Lobby case that religious freedom law “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 as a refuge of religious tolerance.”

‘Faith has played a big part in our lives’

Besides the observation that he is clearly a man of faith, Gorsuch’s own religious leanings aren’t that clear. He was raised Catholic and attended Catholic schools, but now attends a progressive Episcopal church in Boulder, Colo. Comments from family members and friends give the impression of a man who is quietly, but deeply, spiritual.

Coons acknowledges that, and adds that “it’s my responsibility to keep an open mind.”

“We’re both people for whom faith has played a big part in our lives,” he says. But “we may reach very different conclusions about what that means for the judicial role in privileging religious freedom over individual autonomy.”

“I genuinely enjoyed my [earlier] meetings with Judge Gorsuch,” he adds. “He’s a very engaging person, but I haven’t reached any conclusions yet.”

In his statement on Monday, Coons pointed to “disturbing trends in affronts to religious liberty,” including President Trump’s campaign promise of a “Muslim ban” and the Justice Department’s withdrawal of guidance allowing transgender students to use the bathroom that matches their gender identity.

“I am considering your nomination with an open mind, and I would ask that you would be forthcoming in your responses,” he said.

“I believe we must balance our respect for the significance of faith and free exercise with concerns about impacts on other’s liberty,” he added. “America needs a Supreme Court justice who will protect the Constitution, not one who will countenance faith or fear of some, as a justification for infringing the liberty of many.”

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