Going With Gorsuch

Senate Changes Rules To Win Confirmation For Controversial Trump High Court Nominee

It took extraordinary measures by Senate Republicans, but Neil Gor­such, President Donald J. Trump’s nominee for the U.S. Supreme Court, was confirmed April 7 on a 54-45 vote.

Gorsuch secured the seat only after the GOP leadership in the Senate invoked the so-called “nuclear option.” Democrats in the Senate had planned to prevent a vote on Gorsuch by filibustering. Under Senate rules, it takes 60 votes to end a filibuster, but Republicans voted April 6 to change the rules, allowing a simple majority to end the filibuster. A day later, they confirmed Gorsuch.

Gorsuch had previously been approved by the Senate Judiciary Committee on a party-line vote. He spent four days in March answering questions before the committee, but in the end, little new information about his church-state views was uncovered. Americans United continued to oppose Gorsuch’s nomination.

Previously a federal judge on the 10th U.S. Circuit Court of Appeals, Gorsuch was asked about religious freedom issues several times, but he tended to answer with generalities and declined to go into specifics. 

One exchange had the potential to be a bit more telling but petered out. U.S. Sen. John Cornyn (R-Texas) asked Gorsuch specifically about separation of church and state.

Cornyn prefaced his question with a long harangue criticizing the Supreme Court for its rulings banning mandatory school prayer. The high court, Cornyn said, has “lost its way limiting religious expression.”

Gorsuch’s answer was less than enlightening. “It’s a very difficult area doctrinally,” he replied. He went on to note that the First Amendment bars laws respecting an establishment of religion but also protects its free exercise.

“So you’re guaranteed free exercise of religion, and you’re also guaranteed no establishment of religion,” Gorsuch said. “Those two commands are in tension because to the extent that we accommodate free expression, at some point, the accommodation can be so great that someone’s going to stand up and say you’ve established or you’ve passed a law respecting an establishment of religion. It’s a spectrum, and it’s a tension.”

Gorsuch went on to opine that as a lower court judge, he struggled to apply separation of church and state because the Supreme Court itself is divided on the issue.

The idea of tension between religious freedom and establishment of religion also surfaced during questioning by U.S. Sen. Chris Coons (D-Del.) when Coons asked Gorsuch to explain his reasoning in the Hobby Lobby case.

While on the 10th Circuit, Gorsuch ruled that corporations could express religion and that these for-profit entities had the right to refuse to include birth control in employee health care plans, despite such coverage being required by the Affordable Care Act.

Coons reminded Gorsuch that this ruling, which was later upheld by the Supreme Court, had real-world effects: It denied contraceptive access to thousands of workers at Hobby Lobby.

Gorsuch replied that the Green family, the devoutly Christian owners of Hobby Lobby, believed it was a sin to “participate in any way” in the provision of certain forms of contraception. Congress, Gorsuch said, passed a law in 1993 requiring a high level of scrutiny for religious freedom claims, giving the Greens a valid assertion.

“All the court held was that the government had to come up with another alternative to provide the contraceptive care,” said Gorsuch. He opined that an accommodation could be reached that did not require the Greens to “give up their sincerely held religious beliefs.” (In fact, the government has not been able to come up with an accommodation that meets high court approval.)

U.S. Sen. Patrick Leahy (D-Vt.) questioned Gorsuch about Trump’s Muslim ban. Leahy bluntly asked Gorsuch if a religious test can be applied to immigrants or refugees. Gorsuch declined to answer, other than to say that the First Amendment protects religious freedom and that certain types of religious tests, such as a religious qualification to serve in the military, would be illegal.

“I will apply the law,” Gorsuch said. “I will apply the law faithfully and fearlessly and without regard to persons. Anyone, any law is going to get a square and fair deal with me.” He declined to elaborate further, noting that the issue is pending in the courts.

At the conclusion of the hearing, Americans United reaffirmed its opposition to Gorsuch. Americans Uni­ted joined allied organizations in urging senators to vote no on his con­­firm­ation hearing.

AU also sent a letter to the Judiciary Committee urging a no vote. In the letter, AU noted that aside from his troubling ruling in Hobby Lobby, Gorsuch also dissented in two cases dealing with the display of religious symbols on public property. In the dissents, Gorsuch argued that symbols such as the Ten Commandments and crosses don’t necessarily convey religious meaning.

“Judge Neil Gorsuch’s record dem­onstrates he has not been willing to uphold the principles of true religious freedom, including the separation of church and state,” observed the letter, which was signed by AU Executive Director Barry W. Lynn, “Thus, we have serious concerns that, in future cases, he could support the promotion of religion by government officials in a wide range of arenas, including in public schools, at government-sponsored events, and by funding religious institutions, as well as the proliferation of religious accommodations that cause real harm to third parties. Accordingly, we urge you to oppose his confirmation.”

On April 4, Americans United wrote to every senator, urging a no vote on Gorsuch.

“On behalf of Americans United for Separation of Church and State, representing over 120,000 members and supporters across the country, we write to express our strong opposition to the confirmation of Neil Gorsuch as Supreme Court Justice,” asserted Lynn in the letter. “Judge Gor­such, currently serving on the U.S. Court of Appeals for the Tenth Circuit, has taken positions that undermine the fundamental American value of religious freedom. For this reason, we urge you to oppose his confirmation.”

In the lead-up to the vote, Americans United urged its members to contact their senators. The organization also created a special page on its website pulling together information about Gorsuch’s dangerous views on religious freedom and church-state separation.

But Senate Republicans rallied around the nominee, and after employing the nuclear option, they scheduled a vote on Gorsuch’s confirmation for the next day.

The day of the vote, AU’s Lynn issued a brief media statement.

“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,” asserted Lynn. “I am gravely concerned he’ll vote to erode that principle and put one of our nation’s most essential liberties at risk.”