Trump’s High Court Nominee Neil Gorsuch: Another Scalia On Church-State Issues

President Donald Trump this evening nominated Neil Gorsuch to the U.S. Supreme Court.

Trump had promised to fill the open slot on the high court with someone who holds “similar views and principles” to the late Justice Antonin Scalia. Unfortunately, it appears that Trump has acted to fulfill that promise. Like Scalia, Gorsuch has exhibited hostility to church-state separation, which is the foundation of religious freedom. That is why Americans United opposes this nomination.

With Trump, Vice President Mike Pence, and members of the majority party in Congress promising to adopt policies antithetical to church-state separation – including barring Muslim migrants while granting a preference to Christian migrants, allowing houses of worship to endorse or oppose candidates and allowing religion to be used as an excuse to discriminate against same-sex couples – the Supreme Court could be more important than ever.

Americans United doesn't want to see Neil Gorsuch working here.

Here’s a look at some of the cases in which Gorsuch, a judge who currently serves on the  U.S. Court of Appeals for the Tenth Circuit, ruled against church-state separation.
 

Contraception Coverage Cases:

Under Affordable Care Act regulations, most health-insurance plans, including plans provided by employers, must cover all FDA-approved methods of contraception without a copay. This policy was adopted to improve access to birth control, which is vital to women’s health and equality.

In the now-infamous Burwell v. Hobby Lobby Stores case, for-profit corporations argued that providing such coverage for their employees violated their owners’ religious freedom. Gorsuch was one of the judges who heard the case before it went to the Supreme Court. He and his colleagues sided with the corporations, saying that the businesses must receive a religious exemption from the coverage requirement. The Constitution prohibits the government from granting religious exemptions if they would result in real harm to others, yet the majority’s opinion ignored this important limitation. At the same time, the opinion trivialized the real harm women would face without insurance coverage for vital medical services. Subsequently, the Supreme Court also ruled in favor of the corporations. 

In Little Sisters of the Poor v. Burwell, non-profit organizations challenged the accommodation for religious non-profits (this was one of many cases filed across the country). Under the accommodation, an entity 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 entities have challenged this accommodation in court, insisting that the mere act of requesting it violates their religious freedom. Ultimately, they want to block their employees and students from receiving birth control coverage from third-party insurance companies, even though the religious groups do not have to pay for it or otherwise provide it.

A majority of the 10th Circuit rejected this spurious claim. But when the Tenth Circuit decided not to rehear the case, Gorsuch joined a dissenting opinion contending that the accommodation substantially burdened the non-profits’ religious practice, essentially because the non-profits said so.

Religious freedom guarantees us the freedom to believe or not, as we see fit. It does not, however, give us the right to act on our beliefs in ways that use the power of government to harm others. People unwilling to accept advances in LGBTQ rights, women’s equality, and reproductive health want to redefine religious freedom so that they can use their religious beliefs as an excuse to deny health care, refuse to provide services, and disobey laws protecting Americans from discrimination and abuse. Gorsuch’s positions in the contraception cases signal that he may let them.


Government-Sponsored Religious Displays:

In two cases, Gorsuch has written opinions objecting to Tenth Circuit decisions to strike down government-sponsored religious displays. True religious freedom means that the government cannot promote or endorse religion, let alone impose religion on anyone. Gorsuch’s views in these cases, however, show that this fundamental principle of religious freedom may be at stake.

In Green v. Haskell County Board of Commissioners, the Tenth Circuit struck down a Ten Commandments display on an Oklahoma county’s courthouse lawn. Judge Gorsuch maintained that the Commandments, sacred religious text for Jews and Christians, are not “just religious” and thus, could be displayed without violating the Constitution. 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. Judge Gorsuch, however, contended that these preeminent symbols of Christianity did not actually promote Christianity. What’s even more troubling is that Gorsuch’s opinion questioned whether it should even be unconstitutional for governmental bodies to endorse religion.

A number of other current Supreme Court justices have likewise suggested, contrary to settled constitutional law, that governmental bodies ought to be able to promote or endorse religion, and that the Constitution should do nothing more than prohibit the government from actively coercing people to participate in or support religion. If Gorsuch joins the Supreme Court, a majority of the justices could adopt that extreme view. And that could provide a green light for courts to bulldoze the wall that separates church and state. Governmental officials may get much freer rein not only to erect religious displays on public property but also to promote religion in a wide range of other arenas, including in the public schools, at government-sponsored events and by funding religious institutions.

Beginning today, Americans United will fight against Gorsuch’s confirmation every step of the way. We can’t do it without you. Join our email list and follow us on Twitter and Facebook to learn how you can help in the days and weeks ahead.