Neil Gorsuch’s Impact On Supreme Court Religious Freedom Cases Could Be Felt Immediately

Neil Gorsuch was sworn in this past Monday as the U.S. Supreme Court’s 113th justice, and his impact on pending religious freedom cases could be felt as early as next week.

On Monday, the court could announce whether it will grant review of the case Masterpiece Cakeshop v. Colorado Civil Rights Commission. For months, court watchers have been waiting to see whether the high court will take this case involving a Colorado baker who cited his religious beliefs as justification to discriminate against a same-sex couple by refusing to bake them a wedding cake.

Colorado’s Civil Rights Commission found that the baker had violated a state anti-discrimination law, and a Colorado appeals court agreed. But the baker, represented by Religious Right legal group Alliance Defending Freedom (ADF), appealed to the Supreme Court.

The justices regularly meet in private conferences to discuss whether they will hear arguments in potential cases; they typically accept only about 1 percent of the 7,000-plus cases for which they receive certiorari (review) petitions each year. For the court to take a case, four justices must vote for review.

The Masterpiece case – “perhaps the most closely watched case on their cert docket” – was considered at the court’s last five conferences, but the justices have not yet announced if they’ll hear the case.

The situation has led to speculation that a majority of the eight justices had decided not to take the case and one of the court’s conservatives has been drafting a dissent against that decision. But if three justices had voted to take the case, Gorsuch may now provide the fourth vote needed for review.

The justices met for another conference to discuss Masterpiece and other petitions yesterday; they could announce on Monday whether they’ll hear the case.

“It seems likely, in light of his past votes in cases like the Little Sisters and Hobby Lobby, that Gorsuch would be a vote to grant in that case,” John Elwood, a Washington lawyer who closely watches the court’s deliberations on accepting cases, told The Washington Post.

Newly appointed Supreme Court Justice Neil Gorsuch could have an impact on church-state separation cases as soon as next week.

Gorsuch’s troubling opinions as a judge on the 10th U.S. Circuit Court of Appeals in the cases Burwell v. Hobby Lobby Stores and Little Sisters of the Poor v. Burwell factored into Americans United’s opposition to his nomination to the Supreme Court. In those cases, Gorsuch sided with corporations and non-profit groups making “religious freedom” claims to restrict their employees’ and students’ access to birth control coverage.

We also took issue with his views that government-sponsored religious displays were constitutional in two other cases. “Neil Gorsuch has demonstrated that he does not respect the constitutional principle of the separation of church and state, which is the foundation of religious freedom in America,” AU Executive Director Barry W. Lynn said upon Gorsuch’s confirmation. “I am gravely concerned he’ll vote to erode that principle and put one of our nation’s most essential liberties at risk.”

If the high court agrees to hear the Masterpiece case, it likely won’t be argued until this fall. But the Supreme Court is scheduled to hear arguments on Wednesday in Trinity Lutheran Church of Columbia v. Comer, a case that threatens to disturb the healthy distance between church and state. Trinity Lutheran Church, also represented by ADF, sued Missouri officials after the state wouldn’t allow the church to participate in a taxpayer-funded grant program to improve its religious preschool’s playground.

Like the majority of U.S. states, Missouri has a provision in its constitution that prohibits government funds from supporting houses of worship. These “no-aid” clauses safeguard religious freedom by ensuring citizens have freedom of conscience to choose which religions they will voluntarily support. The provisions also protect faith communities from government discrimination and interference.

Missouri’s new governor yesterday announced the state will now award these types of grants to churches. As we explained earlier today, this decision should render the Trinity Lutheran case moot and prevent the Supreme Court from addressing the case’s merits. The high court has not yet taken any action in relation to the governor’s announcement.

If the Supreme Court nevertheless decides the substance of the case, a broad ruling could require states to ignore their own constitutions and funnel taxpayer money to houses of worship. The Supreme Court accepted the Trinity case over a year ago when Gorsuch’s predecessor, Antonin Scalia, was still alive. Court watchers have speculated the delay in hearing arguments in Trinity may have been due to an anticipated split vote among the remaining eight justices, who needed Gorsuch to break a tie.

It’s a potential concern that this case – if it is not decided as moot – could come down to Gorsuch’s vote. As Marcia Coyle and Tony Mauro recently noted in The National Law Journal, “Gorsuch's opinions involving religion reflect a willingness to accommodate it when faced with church-state conflicts.” Gorsuch’s opinions have not addressed the question of public funding of religious institutions, however.

Americans United filed friend-of-the-court briefs in both the Masterpiece and Trinity cases because they have significant implications for church-state separation – Masterpiece on whether businesses can use religious beliefs to justify discrimination, and Trinity on whether states are required to provide taxpayer funding to houses of worship.

We’ll be closely watching the developments at the Supreme Court next week; stay tuned to au.org for more information.