New Supreme Court Justice Neil Gorsuch Will Weigh in on Key Religious Freedom Case

April 10, 2017
Neil Gorsuch

Last Friday, the Senate broke with voting convention to confirm Judge Neil M. Gorsuch as the 113th justice of the Supreme Court of the United States.

49-year-old Gorsuch, a graduate of Columbia, Harvard, and Oxford universities, was nominated by President Donald Trump in January to fill the seat of the late Justice Antonin Scalia, which had been open since Scalia’s death in February 2016. Many anticipated a heated fight in the Senate over Gorsuch’s confirmation after Republican Senators performed what Sen. Patrick Leahy and others called an “unprecedented” blockade of Barack Obama’s nominee, Merrick Garland.

After Democrats sustained an extreme filibuster, Republican Senators made the controversial decision to use the “nuclear option,” permanently removing the opportunity to filibuster Supreme Court nominees and lowering the number of votes required for a nominee’s confirmation to a simple majority.

 Gorsuch was consequently confirmed by a vote of 54-45. Only three Democrats voted in favor of Gorsuch’s confirmation. The newest member of the Supreme Court will begin his lifetime appointment next Monday, restoring a 5-4 majority of Republican nominees.

According to research conducted by professors at Stanford, The University of Chicago, Northwestern, and Harvard, Gorsuch’s past campaign contributions suggest that he will be “more conservative than 87 percent of all other federal judges,” The New York Times reported. In the past, Gorsuch has voted in favor of employers’ rights to circumvent federal law due to their religious beliefs. Notably, Gorsuch supported the for-profit corporation Hobby Lobby’s right to exemption from the federal mandate—instituted by the Affordable Care Act—that employers must include contraceptives among their healthcare coverage.

Religious publications such as Christianity Today have lauded Gorsuch as a “religious freedom defender.”

“A Supreme Court justice like Judge Gorsuch, who understands and values our founding documents, and hews closely to their meaning, will help ensure that all Americans can continue to prosper and that we, as Catholics, remain free in exercising our religious principles,” Grazie Pozo Christie, policy adviser with The Catholic Association, told National Catholic Register.

Gorsuch’s views on the relationship between church and state will be immediately brought to bear in his new role as the Court hears what is shaping up to be one of the most important cases of the term, The New York Times reported. On his third day as a Supreme Court justice, Gorsuch will hear arguments for Trinity Lutheran Church v. Comer, a religious liberty case in which he is expected to cast the deciding vote.

At the heart of the case is the question of whether state money can be used to aid religious institutions, St. Louis Post-Dispatch reported. The Missouri Department of Natural Resources offers a grant program that repurposes tires to create rubber for playground surfaces. Trinity Lutheran Church in Columbia, Missouri applied for the grant but was denied because the Missouri Constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church.”

Later this month, Trinity Lutheran Church will argue to the nation’s highest court that such a stipulation violates their religious freedom. The Alliance Defending Freedom, a conservative advocacy organization that will represent the church in court, said that the constitutional amendment allows for religious groups to be treated as second-class citizens.

“A government isn’t being neutral toward religion when it treats religious organizations worse than everyone else,” said Alliance Defending Freedom senior counsel David Cortman. “Using the state’s logic, the government could deny fire services or water treatment for churches. That’s clearly not what the state or federal constitution was designed to prevent.”

Others fear that the removal of state-level amendments—called, together, the Blaine Amendments—delineating separations between church and state could lead to favoritism.

In the case of the Missouri grant program, said Richard Kaskee, legal director for Americans United for Separation of Church and State, “There’s a government official who decides who gets the money. That can be done because that’s the favorite faith of that government official.” He continued, “Even if it’s done on neutral criteria, those whose houses of worship don’t get the money are going to feel rightly it’s favoring other faiths.”

Missouri Attorney General Chris Koster said there is no reason for religious organizations to fear being denied critical government services. “When someone in need calls for help, the police respond without considering whether the caller has submitted a sufficiently competitive proposal,” Koster wrote in a brief. “In short, withholding police or fire-protection services from a church would impose an incredible hardship on its members. Withholding funding for a new playground surface does not.”

The Supreme Court will hear arguments for Trinity Lutheran Church v. Comer on April 19.  

--by Caroline Matas

Image Source: Neil Gorsuch. Photo by Office of U.S. Senator David Perdue. Public Domain. Via Wikimedia Commons.