Opinion

Neil Gorsuch’s own faith is a poor predictor of how he would judge religious issues

Judge Neil Gorsuch, left, speaks as President Trump stands with Gorsuch's wife, Marie Louise, after Trump nominated Gorsuch to be an associate justice of the Supreme Court on Jan. 31, 2017. Photo courtesy of Reuters/Carlos Barria

(The Conversation) On Jan. 31, President Donald Trump nominated Judge Neil M. Gorsuch of the Tenth Circuit Court of Appeals to fill the vacancy on the Supreme Court occasioned by the death of Justice Antonin Scalia. The Senate hearing on Judge Gorsuch’s nomination to the Supreme Court started on Monday, March 20. The Conversation

As important as is a Supreme Court confirmation, Congress and the media have focused chiefly on the numerous controversies that have embroiled the new Trump administration. One media outlet even called Gorsuch’s confirmation process the “stealth Supreme Court nomination.”

Judge Gorsuch has a reputation as a judicial conservative in the mold of Scalia. He has not ruled on several controversial issues such as gun rights, but the conventional wisdom among court watchers is that if confirmed, the “young” (49-year-old) Gorsuch will swing the high court back to the right on many social issues and will impact Supreme Court jurisprudence for decades to come. As a result, progressive interest groups are scrambling to marshal their forces to oppose Gorsuch’s confirmation.

Judge Gorsuch has a notably strong record on one controversial subject, that being on church-state matters. His rulings have generally supported a more “accommodationist” approach to resolving church-state controversies, a position advocated by religious conservatives. In addition, during the White House announcement ceremony for his nomination, Judge Gorsuch remarked that he was “thankful for my family, my friends, and my faith.”

His statement raises the question of whether a judge is influenced to rule a particular way on church-state controversies by his or her religious faith.

I am a constitutional law professor who specializes in church and state matters. I have also participated in more than 25 church-state cases before the Supreme Court as counsel and through friend-of-the-court briefs.

In my view, the religious faith of a justice, standing alone, tells us little about how he will vote in church-state cases or on other controversial social issues. It is a conservative religious worldview that is more likely to reinforce and validate an existing conservative judicial ideology.

Gorsuch’s judicial decisions

Following Trump’s announcement, conservative religious groups such as Focus on the Family and the Family Research Council praised Gorsuch’s nomination. The evangelical magazine Christianity Today declared that Gorsuch will be a justice “that evangelicals will love.” In contrast, progressive religious groups have voiced opposition to Gorsuch’s nomination based on his church-state holdings.

Little is known about Gorsuch’s personal faith other than that he is religiously observant. Gorsuch was raised Catholic, attending a private Jesuit school in his youth. He became an Episcopalian while a graduate student at Oxford, the religion of his wife whom he met while in England. Currently the judge attends a mainline Episcopal church in Boulder, Colorado, that takes progressive stances on social issues.

The liberal orientation of Gorsuch’s church stands in contrast to his own record of judicial decision-making. During his 10-year tenure on the Tenth Circuit Court of Appeals, Gorsuch has taken a firm stance on behalf of protecting religious liberty claims against government regulations, a position that has made him a favorite of religious conservatives. Several of those cases have been highly controversial.

The infamous Hobby Lobby case is one example. In that case, the Supreme Court held that for-profit corporations may assert a religious liberty defense against having to comply with the contraceptive care insurance mandate under the Affordable Care Act. Judge Gorsuch wrote a concurring opinion in the Tenth Circuit’s decision that went even further, urging that courts should defer to a person’s subjective claim that a law burdens his religious beliefs, regardless of how tangential that burden appears objectively.

Little Sisters of the Poor is another example of a case that involved the question of a religious exemption from complying with the ACA. In that case, the Catholic order that operates nursing homes claimed that even applying for an exemption under the ACA from the government violated their religious beliefs. Gorsuch dissented when the Tenth Circuit declined to reconsider its decision rejecting the Little Sisters’ religious liberty claims. That dissent argued that the court had given insufficient deference to the Little Sisters’ own articulation of the burden on their religious beliefs.

He has also written or joined on opinions siding with the ability of governments to display religious symbols on public property, such as a Ten Commandments monument on courthouse lawns. According to one bipartisan analysis of Gorsuch’s record:

“The common thread in these cases is one that matters very deeply to conservatives: a sense that the government can permit public displays of religion – and can accommodate deeply held religious views – without either violating the religion clauses of the Constitution or destroying the effectiveness of government [nondiscrimination] programs.”

Religious affiliations in Supreme Court

The question many people are asking is, will Gorsuch’s religious affiliation matter? First, let’s look at the religious makeup of the Supreme Court.

Currently, the Supreme Court comprises five Catholics and three Jews (Justice Scalia was also Catholic). This has led some commentators to speculate on what this means for issues such as abortion regulations and church-state matters.

The vast majority of justices have been Protestants, which is not surprising considering the Protestant dominance of the culture until recently. President Andrew Jackson appointed the first Catholic to the Supreme Court (Chief Justice Roger Taney) in 1836, a fact that did not go unnoticed. The next Catholic justice, Edward D. White, was appointed in 1894, some 58 years later. (White was more controversial for being a former Confederate officer than for being Catholic)

The first Jewish justice was appointed in 1916 (Louis Brandeis), to be followed by Benjamin Cardozo in 1932, which established the unofficial “Jewish seat” on the court. From 1940 forward, there has always been at least one Catholic and one Jewish justice on the high court (absent a hiatus from 1969 to 1993 of a Jewish justice).

Those demographics have changed significantly over the past two decades. With the resignation of Justice John Paul Stevens in 2010, the court was left without a Protestant member for the first time in its history.

Here’s what history tells us

In most instances, research shows, a justice’s religious faith has been a poor predictor of his or her judicial philosophy (and that would assume that one can draw accurate conclusions about what any religion requires of its adherents).

For example, is it safe to assume that a Catholic justice will vote against abortion and gay marriage because of the teachings of the Catholic Church?

Catholic Justice Frank Murphy (1940-1949) was a staunch New Deal liberal, whereas Catholic Justice William Brennan (1956-1990) was likely the Supreme Court’s fiercest supporter of church-state separation and reproductive choice during his long tenure.

Currently, Catholic Justice Sonia Sotomayor is considered to be part of the court’s liberal wing. Another notable liberal was Justice Hugo Black (1937-1971), who was a Southern Baptist, while two conservative justices were William Howard Taft (1921-1930) (Unitarian) and William Rehnquist (1972-2005) (Lutheran).

And though Catholic Justice Anthony Kennedy usually sides with the conservatives, he has voted to uphold abortion rights and gay marriage. Likely the closest religious indicator of judicial philosophy has been among the court’s Jewish justices, who have overwhelmingly been liberal.

To be sure, there have been some exceptions. Justice William Strong (1870-1880) was an evangelical Presbyterian who served briefly as president of a religious organization that sought to amend the Constitution to declare the United States a “Christian nation.”

Similarly, Justice David J. Brewer (1889-1910) was an evangelical Congregationalist who declared in a court opinion that America was a Christian nation, a matter he wrote about at length off the bench. And Justice Felix Frankfurter (1938-1962), a secular Jew, frequently referenced his religious/ethnic heritage in his strong support for church-state separation.

But those instances have generally represented the exceptions.

The safest conclusion to draw from history is that religious affiliation is probably a poor indicator of judicial philosophy. It generally does not preordain any judicial holdings. However, a conservative religious outlook may reinforce an existing conservative judicial ideology, and vice versa, particularly on social issues.

(Steven K. Green is a law professor and director of the Center for Religion, Law & Democracy at Willamette University. This article was originally published on The Conversation. Read the original article)

About the author

Steven K. Green

10 Comments

Click here to post a comment

  • His work concerning Hobby Lobby and Little Sisters of the Poor are a far better indication of his beliefs than guesses based on his sect. Those opinions alone show he believes religious belief allows one to impose on others in an untowards manner. Taking a favorable view of “religious liberty claims” by conservatives really means he opposes actual religious liberty in favor of discriminatory attacks.

  • I wonder to what extent various controversies kept the “next” Catholic or Jewish justice from being appointed for so long. Taney was a brilliant and talented judge, but he is best remembered today for writing the Dred Scott opinion justifying treating blacks as non-citizens. Scalia noted in a dissenting opinion in one of the big recent abortion cases a post-Dred Scott portrait of Taney at Harvard Law School portraying him as sad, tired and defeated. Fortas, for his part, was forced to resign after a corruption scandal. My sense is that these events gave ammunition to those who said things like “see, that’s what happens when you nominate one of those people.”

  • Thank you Mr. Green for that late vice versa, if you mean that religious liberals/progressives are subject to the same potentiality. If that was not your intent, it should have been.

  • Obama Care contained several oppressive mandates such as the Hobby Lobby and the Little Sisters of the Poor cases mentioned here. These mandates forced devout Christians to go against their conscience to uphold the law. Since–thankfully–Obama Care will soon be history, Neil Gorsuch’s support or opposition to any such cases becomes moot.

    Personally, I’m happy that Neil Gorsuch is a Christian with an informed conscience! The fact that he attends an Episcopal church in Boulder, Colorado, that takes a liberal stance on social issues, tells me that he takes a broad view of religious and political matters. We live in a pluralistic society and need such a person serving on the Supreme Court–someone who can see all sides of issues, and render fair, impartial judgments that honor or heritage of religious liberty.

  • The only thing oppressive with Hobby Lobby and Little Sisters was the employers desire to micromanage private employee healthcare decisions. It is not an employers business to determine what is the minimum level of healthcare coverage. It is always a state based determination. Employers had no business attacking access to contraception for employees. Especially when they weren’t providing coverage as was the case for the Little Sisters.

    Hobby Lobby was upended by subsequent statute. Little Sisters had a far worse position. They wouldn’t even let employees choose their own coverage instead of the employer one. But I guess employees are not people but corporations are.

    Trumpcare is garbage which will harm a good deal of the public. Not even most conservatives can find a bright spot to it.

    Gorush wants christian privilege and opposed actual religious freedom. There is nothing resembling conscience in his prior actions here. Calling attacks on the rights of others acts of conscience is insulting to the term. I refuse to call what conservatives are asking for “Religious freedom”. They do not get to appropriate the term for such a nasty discriminatory agenda.

  • Spuddle-pants, this is a train-load of baloney! You’re insulting everyone’s intelligence here, while calling your own into questions!

    Please consider that:

    1. The US government does not mandate that employers provide health insurance for their workers–not for part-time workers, not for full time workers! It’s optional, except for cases like the unions, which struck UPS a few years ago during the Christmas season, and would only settle the strike when UPS agreed to provide health care for all their part-time seasonal and split-shift workers That’s as close as you are going to come to anything like a government mandate!

    2. Employee-provided health insurance is provided strictly at the option of the EMPLOYER and no one else!

    3. Employees have the option of rejecting their employer’s coverage, like when they can get better or less expensive coverage through their spouse’s employer.

    4. Although Obama Care mandated lots of silly stuff like contraceptives and maternity care for 80-year-old female pensioners, NO ONE has set ANY standards for the quality of coverage that employers provide! Everything is up to the employer! Companies are free to provide no coverage, cheap coverage with high deductibles, good coverage, or Cadillac coverage like unions provide their members! It’s ALL a matter of choice, on the part of both the employer and the workers!

    5. One must conclude that whether or not a company provides health insurance coverage, the quality of the coverage, the cost of the coverage, and what parts of the coverage the employer chooses NOT to–all are matters between the company managers, their bankers and their employees!

    6. Most plans today carry some sort of deductible. The cost of women’s birth control pills is somewhere between $8.00 and $12.00 a month. Women can pay out of their own pockets for their birth control pills, or throw money their away by paying the reqired deductible to buy them through their health care plan! That, too, is a choice–although a stupid one!

    the government–or anyone else–.

  • You have zero idea how insurance is regulated.

    1 &2.Whether health coverage is provided at all is an irrelevancy when the subject is minimum coverage of any policy. State insurance boards determine this, never employers.

    3. The Little Sisters fought against this option. They refused to let employees out of the employer plan.

    4. Actually the ACA mandates attempted that. State insurance boards handle the rest. Employers are still bound by government mandates as to what constitutes minimum coverage. This is done to keep insurers from defrauding insureds with useless policies Choices for employers are limited to what the government considers necessary for all policies. So no “Everything is up to the employer!” has never been true.

    5. A conclusion based on your ignorance of how insurance is regulated. See above.

    6. Nobody has to take your suggestions here. Voters and insurance companies overwhelmingly wanted contraception coverage. Moreover, insurance policies do not have to be tailored to an employers arbitrary whims.

    It is no more a right of an employer to offer insurance which does not meet government mandated minimum standards than they have a right to pay employees in company script. Simply a refusal to properly compensate their employees.

  • I firmly believe that Judge Gorsuch will be a Judge that will make decisions based on facts and how they fit with the wording of our Constitution. Whether he personally think about a matter will not influence his decision on a matter. That has been the problem in the past, as politic’s has entered the minds of certain judges when deciding a case before the court. Hope everybody gets behind Judge Gorsuch.

  • Spuddle, you sound like a member of an insurance board somewhere!

    You bring up a few good points here, only a few of which relate to what I’ve written. IF employers offer insurance at all, and WHETHER employees take advantage of what’s offered, are still CHOICES outside the range of any insurance board! State boards may set the lower limits of what minimum coverage must contain, but they can never set the upper limits for coverage, hence the Cadillac plans I spoke of! And there’s NO uniformity of standards and processes from one state to another!

    We’ve gotten ourselves far into the weeds in our discussion here, and a long way away from any discussion of the kind of jurist Neil Gorsuch would be, should the Senate confirm his nomination to the Supreme Court. I would support his confirmation, based on the fact that his conservative principles would favor a wide variety of choices in an insurance industry that’s been freed-up to operate across state lines. Liberal politicians like making people’s choices FOR them, as they position themselves as all-knowing elitists who trust the government (themselves, when they’re in power!) to make better choices than individuals make concerning their own needs and budgets!

    Good discussion!

  • Thank you for the vote of confidence in what I am saying about insurance regulation.

    The way it works is that the insurance board, State and Federal governments have always set the floor for what policies must carry in terms of treatment. Employers have no choice to go below that minimum government mandated level. Insurance policies even self insurers are bound by those mandated. In this case contraception and prenatal care were mandated as minimum coverage. It makes sense to the majority of those affected, fiscally and for insurers.

    BTW Hobby Lobby and Little Sisters also represents an attack on the private healthcare decisions of employees. It is never the role of an employer to make decisions as to how an employee seeks medical treatment. It violated the HIPAA act.

    “there’s NO uniformity of standards and processes from one state to another”

    Now you are suddenly against states rights? I thought you were against nationalized initiatives for public benefits.

    As for Gorusch, the two examples of his prior work given bodes badly for my opinion of him. However his answer regarding the travel ban was pretty good. Essentially, “any judge who gives a straight answer to the question should be drummed out of the bench”. If a lawyer can’t give the answer, “it depends on the evidence” they are not doing their job right.

ADVERTISEMENTs