Senate Democrats are having a tricky time finding a solid toehold in their resistance to Judge Neil Gorsuch. Gorsuch, the Supreme Court nominee whose hearings start Monday, is well-liked and—at least by Republican jurisprudential standards—well-qualified. The one line of opposition Democrats seem to have settled on is that Gorsuch unerringly sides with the powerful and wealthy, leaving workers and vulnerable citizens to fend for themselves. The animating theory here seems to be that tying Gorsuch’s support for big business and his opposition to campaign-finance reform to the larger narrative of the Trump administration’s corruption and cruelty is the best way to link the nominee to the insanity of our current national politics. That he will likely be terrible for women, minorities, and other disadvantaged groups is a part of that story as well.
The problem for Democrats in the Senate is that, by showing up for the hearings and the vote, they’ve given up on their best argument: that the nomination is wholly illegitimate. Gorsuch may or may not be a good judge, but there is no principled reason for him to have a hearing when Merrick Garland did not. This is a problem of power, not legal qualifications. And there is not much any Democratic politician can say about that once she’s sitting in a Senate chamber debating the merits of the nominee.
But there’s another, almost more consequential issue at play when it comes to talking about Judge Gorsuch. It’s a problem that has to do with faith, and the many ways in which it has become the third rail of judicial confirmation politics. This has nothing to do with the prospective justice’s personal faith as an Episcopalian and everything to do with his willingness to let people of faith impose their views on others. The problem of religion in the courts centers on the alarming tendency to honor the claims of religious people that their suffering is the only relevant issue. If we cannot begin to have a conversation about why this is a problem, it will be all but impossible to talk about Gorsuch’s qualifications in a serious way.
Our current religious-liberty jurisprudence, as laid out by the Supreme Court in its Hobby Lobby opinion, is extremely deferential toward religious believers. What believers assert about their faith must not be questioned or even assessed. Religious dissenters who seek to be exempted from neutral and generally applicable laws are given the benefit of the doubt, even when others are harmed. Sometimes those harms are not even taken into account.
Gorsuch agrees with all of this and then some. His record reflects a pattern of systematically privileging the rights of religious believers over those of religious minorities and nonbelievers. It is, of course, vital and important to protect religious dissenters; the First Amendment could not be clearer. But the First Amendment is equally anxious about state establishment of religion, an anxiety Gorsuch is less inclined to share.
Why does this matter? Because as cries increase that Christian dissenters are harmed by civil rights laws, it’s important to understand the consequences for those who don’t share these perspectives. Conceptions of religious persecution lie at the heart of many front-burner social disputes, including those over LGBTQ rights, transgender bathroom access, abortion, access to birth control, sectarian prayer in public places, and marriage equality. That is why it is crucial for Senate Democrats to acknowledge openly that the potential nomination of someone like Neil Gorsuch was the primary reason Christian Evangelicals voted for Donald Trump last fall. Trump’s promise—in a January interview with the Christian Broadcasting Network—that he would pick a court nominee that “evangelicals, Christians will love” should be front and center in these hearings.
Gorsuch’s religious-liberty record, as Ed Whelan carefully explains in the National Review online, is long and detailed. In a 2013 decision in Hobby Lobby v. Sebelius—a ruling that was later affirmed by the Supreme Court—Gorsuch joined the 10th Circuit’s en banc opinion, which held that a for-profit corporation like Hobby Lobby can be a “person” with religious beliefs under the Religious Freedom Restoration Act and that religious employers can rely on those religious beliefs to avoid giving employees statutorily guaranteed insurance coverage of birth control. It was clear based on Gorsuch’s opinion that he would have gone further, permitting individual business owners—not just corporations—to challenge the contraception mandate. In 2015, in Little Sisters of the Poor v. Burwell, which was heard at the Supreme Court last term, Gorsuch joined a dissent arguing that the Department of Health and Human Services had infringed upon the religious liberty of the Roman Catholic group by requiring them to sign a form to opt out of dispensing contraceptives. In 2009’s Green v. Haskell County Board of Commissioners, Gorsuch penned a dissent in a case involving a Ten Commandments display. Per Whelan, “he complained (among other things) that the panel majority’s ‘reasonable observer’ … was not ‘someone who got things right’ but was instead ‘an admittedly unreasonable’ observer who ‘just gets things wrong’ ‘because, the panel tells us, our observer is from a small town, where such errors cannot be helped.’ ” He also joined a dissent in 2010’s American Atheists v. Davenport, making a similar argument about the silliness of a “reasonable observer” test in the majority’s ruling that Utah had violated the Establishment Clause by allowing large memorial crosses to be erected on state highways.
It is clear that Gorsuch has a deeply held conviction that it is not the business of “secular” courts to place themselves between a religious adherent and her own conscience. This is, for instance, how Gorsuch described the wrong he identified in the 10th Circuit’s Hobby Lobby decision:
It is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes “too much” moral disapproval on those only “indirectly” assisting wrongful conduct. Whether an act of complicity is or isn’t “too attenuated” from the underlying wrong is sometimes itself a matter of faith we must respect.
Indeed, Gorsuch opened his concurrence in that 2013 Hobby Lobby case with the caution that:
... all of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.
The real wrongdoers, then, are the judges who force people of faith to sin. The sinner’s conscience swallows all inquiry.
In their 2015 dissent in Little Sisters of the Poor, Gorsuch and his colleagues made a similar argument: “All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?” In an amicus brief he authored before he came on the bench, he likewise argued that requiring public hospitals to provide abortions was an instance of “the courts [feeling] free to override the conscience of health care providers.”
It’s not just the great deference Gorsuch shows religious adherents that is worrisome. He also believes that the views of religious adherents are beyond factual debate. Again in the Hobby Lobby case, he wrote that companies must pay for “drugs or devices that can have the effect of destroying a fertilized human egg.” That claim is simply false, even with regard to Plan B. It is a religious conclusion, not a medical or legal one. Whether that view is his or he simply declines to probe whether the religious conclusion is accurate, the effect is the same: He has written into a legal opinion a religious “fact” not supported by medical science.
This kind of thinking matters especially when the tremendous respect for religious dissenters is not balanced against the harms incurred by nonadherents. Gorsuch sometimes minimizes or outright rejects the third-party harms of religious accommodations. As Yuvraj Joshi points out at NBC, “while the Supreme Court’s decision in Hobby Lobby considered the impact of the case on women, Judge Gorsuch’s opinion does not even acknowledge the harmful effects of denying access to reproductive health care on female employees and dependents. Instead, his sole concern is for religious objectors who feel complicit in the allegedly sinful conduct of others.”
What that means going into this week’s hearings is that religious liberty works only one way. All of this tremendous deference to the religious sensitivities of the objectors is balanced against, well, no solicitude at all for the interests on the opposing side.
This has nothing to do with being anti-religion. It is simply not a defense of religious liberty to accept, without question, a religious adherent’s beliefs as if they are judicially determined facts, especially if those beliefs contradict empirical fact and even more so when they create tangible suffering for others.
Gorsuch’s defenders point to the fact that he has been an equal-opportunity defender of religious liberties, including in cases that involve plaintiffs from minority faiths. And this is precisely the point. Gorsuch’s own faith is not at issue here. At a Supreme Court confirmation hearing, we should not be talking about the beliefs a nominee may hold in his heart. Instead, we need to focus on whether his accommodation of the beliefs of others overmasters not just scientific fact and neutral civil rights laws, but also the interests and values of people of different faiths and those who reject religion altogether.