Judge Neil Gorsuch is smart, diligent, affable but fatally flawed as a candidate for the United States Supreme Court.
Gorsuch, a product of Colorado and veteran of the 10th Circuit Court of Appeals, has long been an articulate jurist and self-proclaimed proponent of helping the law speak for itself. Yet, he misunderstands the Constitution’s driving force about religion, that to protect our “freedom of,” we must first protect our “freedom from.”
We do not doubt his command of the law and language to make his case. But it’s that very eloquence that betrays his insistence that nothing weighs on his judgment other than the practical nature of the law. On the bench, Gorsuch wrongly allows the courts to protect the religious freedom of one citizen by denying the same rights of another. The most egregious example came in 2013 Hobby Lobby Stores, Inc. v. Sebelius ruling.
That’s the landmark case trumped by conservatives that says, in certain cases, corporations can violate the rights and privileges of others if owners feel their religious freedoms are infringed upon. In the case of Hobby Lobby, owners David and Barbara Green objected to paying for employee health insurance that provided benefits for birth control, a component of Obamacare. Using some commonly accepted methods of birth control offended the religious sensibilities of the Greens. So they sued, and they won.
Gorsuch was a large part of that victory.
Don’t mistake our warning here for politics. We understand that although we vehemently disagreed with the Hobby Lobby rulings by the 10th Circuit and Supreme courts, they’re perfectly defensible. In both cases, judges and justices argued that the case hinges on the very narrow question and circumstances involved.
But Gorsuch went further than just signing onto the majority ruling. He added his own context to the religious victory.
In his personal aside, he made it clear that even though many might find the Greens’ religious convictions offensive, the laws under review purposely take that into account, and that doesn’t fall out of line with the Constitution.
What Gorsuch implied is that the company’s religious convictions — an extension of the owners — trump those of an employee. In this case it was 13,000 employees. It’s not enough that the people who own the company be allowed to practice their faith any way they like. That’s never been questioned. Gorsuch argued that their faith extended to a legal instrument created to pay taxes and create commerce. He said the government can’t impose a religion on a business, but a business can impose its religion on anyone, no matter how far out of line the weirdness may be — as long as the convictions are genuine. Gorsuch said the government and the courts shouldn’t evaluate or judge “the correctness or the consistency” of what people say are religious objections. Instead, the courts should ensure they can claim whatever they like.
All well and good — until your religious rights impose on the rights of others. Weirdness, as we all know, is in the eye of the beholder.
Under Gorsuch’s ruling, if the Greens were to become devout Jehovah Witnesses, they could insist that company health insurance not offer medical treatment for leukemia that involves human blood components.
Gorsuch’s ruling would allow Westboro Baptist Church to create a corporation and buy up ambulance services across Kansas — and refuse to provide aid to homosexuals. The Gorsuch ruling would allow David Duke and his wife to buy up hotel chains across the South and refuse to rent rooms to blacks and other minorities.
No? Even proponents of the Hobby Lobby victory say such things would be unlikely. Talk all you want, but allowing some devout Christians objecting to having a hand in birth control is an easy sell in America. Had the Greens been Muslims who refused to hire women who shunned wearing burkas to work, it’s unlikely this case would have gotten this far.
And that puts Gorsuch in an awkward and dangerous spot. Given this and other cases, Gorsuch’s America elevates religion to the top of the rights heap, hands them out to power people and legal instruments — corporations — and ensures those religious rights can be imposed on others with different and conflicting religious preferences.
That doesn’t sound very founding fatherish to us. In fact, it sounds exactly like what Thomas Jefferson and James Madison tried to prevent when crafting the Establishment Clause of the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
Freedom of can’t exist without freedom from.
Whether a Hobby Lobby employee gets birth control pills to treat ovarian cysts has nothing to do with owner’s ability to practice their religion. But Gorsuch makes his ruling even more dangerous by insisting the courts can find remote correlations back to the religious dogma of the owner of a corporation. He alludes to “complicity” as the threads that bind our religion to pretty much anything we want. Gorsuch said the courts should never judge those religious convictions on their merit.
It’s between Hobby Lobby and their god. In doing so, he’s set up the perfect top-court argument allowing for the legal discrimination of gays, minorities, women, Muslims — anyone — under the guise of religious freedom.
If you’re a white, male, Christian conservative, you won’t feel a thing. For the rest of America, your Constitutional rights would come second to those of the Greens and people like them.
Gorsuch is a thoughtful and engaging jurist with reams of astute rulings. But when it comes to weighing cases affecting what are arguably some of the most important and critical rights bestowed on American citizens, Gorsuch trades his usual legal pragmatism for religious philosophy.
That’s not justice, and that should never be the mission nor the tact of the Supreme Court.
Arguing that the country could do much worse, especially considering the bungling record of President Donald Trump so far, is the height of cynicism, and belies the magnitude and importance of this nomination.
Trump needs to offer a candidate who doesn’t suffer from Gorsuch’s fatal flaw.