You probably haven’t read much lately about Neil Gorsuch, the federal appeals court judge President Donald J. Trump has nominated to the Supreme Court – but that’s about to change.
Gorsuch’s confirmation hearing before the Senate Judiciary Committee starts on Monday. The first day will be taken up by statements from committee members and Gorsuch himself. On Tuesday, Gorsuch will start answering questions.
Americans United is deeply concerned over Gorsuch’s approach to religious freedom, including church-state separation, and that’s why we’re opposing his nomination.
Neil Gorsuch's crabbed interpretation of religious freedom makes him unfit for the Supreme Court.
AU’s concerns focus specifically on two areas:
Access to contraceptives: Gorsuch was one of the judges on the 10th U.S. Circuit Court of Appeals who heard the case Hobby Lobby case before it reached the Supreme Court. He took the view that corporations can exercise religion and said that because businesses had religious objections, they could get out of a provision in the Affordable Care Act (ACA) that requires employers to provide insurance coverage for birth control to their employees. The Constitution, though, bars religious exemptions like this that would result in real harm to others; it’s troubling that Gorsuch and his fellow judges ignored this important safeguard. Subsequently, the Supreme Court also ruled in favor of the corporations.
In a case also involving the ACA provision on birth control, Little Sisters of the Poor v. Burwell, non-profit organizations challenged the accommodation created for employers with religious objections to the contraception coverage rule. Under the accommodation, a non-profit has only to state its objection in writing, and the government will arrange for a third party to pay for and provide the coverage instead. Remarkably, many religious non-profits argued that the mere act of requesting an accommodation violated their religious freedom. And although the federal court rejected this outlandish claim, Gorsuch objected, contending that the accommodation substantially burdened the non-profits’ religious practice, essentially because they said so.
In both of these cases, Gorsuch signaled his view that religion can be used to justify real harm to others, including the denial of access to crucial healthcare services like contraception. This is an ominous position and one that undermines true religious freedom.
Government-sponsored religious displays: In two cases, Gorsuch has written opinions objecting to 10th Circuit decisions to strike down the display of religious symbols on government property. In Green v. Haskell County Board of Commissioners, the 10th Circuit ruled that a Ten Commandments display on an Oklahoma county’s courthouse lawn violated the separation of church and state. Gorsuch argued that the Decalogue, which is found in the biblical Book of Exodus, is not “just religious” but could convey a “secular moral message.”
In American Atheists v. Davenport, the Tenth Circuit held that the practice of memorializing fallen Utah Highway Patrol officers by erecting 12-foot-tall crosses bearing the Highway Patrol’s symbol on the side of state highways violated the Constitution. Gorsuch disagreed, incredibly arguing that the cross – the preeminent symbol of Christianity – didn’t actually promote that faith. Even more troubling, Gorsuch’s views suggest he would question whether it should even be unconstitutional for governmental bodies to endorse religion.
Gorsuch will have the opportunity to explain his view on religious freedom during the hearing, but the positions he’s taken in cases speak for themselves. His views on church-state separation are deeply troubling – and that’s why we don’t believe Gorsuch is the right choice for a seat on the nation’s highest court.