Lawyers usually discuss the conflicts between equality and religion because many religions seek exemption from civil rights laws. Supreme Court nominee and Tenth Circuit Judge Neil Gorsuch’s testimony provided a different language to capture the dispute: the people versus the law. Gorsuch often prefers abstract principles to concrete people. That test should support regular victories for religion once Gorsuch is voted onto the Supreme Court.

The judge repeatedly made “neutral and fair” statements about judges and the law during his Supreme Court confirmation hearing. He insisted that it’s his job to decide cases without regard to persons. He frequently defended originalism, a constitutional interpretation theory that focuses on the original text of the Constitution. Originalists usually assess the text’s original meaning, words, or purpose. Gorsuch subtly explained that this theory looks backward, not backwards or forward. He stated, over and over again, that good judges start with precedents and interpret such cases according to their length of time and reliance. He defended judges against some senators’ claims that judges are either Republican or Democratic. Gorsuch rebutted that they are simply judges, and not politicians in robes. He repeatedly identified his deference to Congress. He was very clear that as a judge, Gorsuch has only one client, which is the law.

Like the Democratic senators who questioned him, I was puzzled by Gorsuch’s people-free approach to deciding legal cases. Some senators were troubled that Gorsuch didn’t say more about the place of individuals in his cases. Democrats kept arguing that Republican justices consistently favor employers and corporations over employees and consumers. They repeatedly criticized Gorsuch for his treatment of two litigants: a tired truck driver and a disabled student.

The truck driver stalled out on a cold day. He was fired for releasing the trailer from the main vehicle and driving away. Although the majority of the Tenth Circuit ruled for the driver, dissenting Gorsuch said the law is clear that the driver operated the vehicle by releasing the trailer and so could be fired. Words over persons.

Gorsuch’s Tenth Circuit frequently made the Individuals with Disabilities Education Act (IDEA) hard to enforce. His judicial colleagues adopted Gorsuch’s incredibly low standard that public schools must do “merely more than de minimis” to enforce the IDEA. While Gorsuch was in his nomination hearing, in Endrew F. v. Douglas County School District, the Supreme Court unanimously reversed the circuit court’s decision. The Supreme Court was much more demanding than the Tenth Circuit because—under Gorsuch’s standard—the school “can hardly be said to have been offered an education at all” to the autistic student.

Although the senators kept asking Gorsuch about the truck driver, the autistic student, and other litigants in cases, it always appeared that text was more important to Gorsuch than individual persons like the driver, the student, and the student’s parents. This looked like a neutral theory of judging, but turned out to be an odd one that didn’t take enough account of individuals’ needs and well-being.

On the Tenth Circuit, Gorsuch took a similar, people-free approach in his leading religion cases. Because of the Supreme Court’s ruling in Employment Division v. Smith, religious freedom is now governed by two congressional statutes, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Unlike the First Amendment, these statutes now hand regular victories to conservative religions. In a prisoner’s case, Yellowbear v. Lampert, Gorsuch strongly supported the convicted murderer’s argument that he should have access to a sweat lodge and paid little attention to the government’s compelling interest to deny access. In that opinion, he praised RFRA and RLUIPA, missing the point that Congress might have overprotected religion by reaching out to support what even the Court had never protected.

The Supreme Court’s contraception case, Burwell v. Hobby Lobby Stores, went through the Tenth Circuit. Gorsuch wrote an enormously strong concurrence, holding that the Greens deserved to win their case against making contraceptive insurance available to their employees. He simply accepted the Greens’ arguments about complicity with the contraceptive act. He wrote that RFRA was supposed to protect unpopular religions. He insisted, “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.”

In more accurate words, Gorsuch did not give one consideration to the female employees who wanted contraception and the government that was trying to provide it. At his hearing, he stated that he couldn’t imagine any state trying to take away the contraceptive right defended in Griswold v. Connecticut. Yet he upheld lawsuits that did just that for numerous religious employers, setting in motion more cases that will challenge women’s and LGBT rights.

Hobby Lobby suggests that Gorsuch values religious liberty much more than women’s equality. Expect Justice Gorsuch to lean toward religion over equality. Or, in his words, law over people. In Trinity Lutheran, his text-based analysis might be reluctant to allow states to withhold benefits from a church that wanted a grant of solid waste management funds to resurface a playground on church property. In Stapleton, he would be figuring out what a church plan is. Expect him to look more at the words and less at the people.

As Gorsuch writes in Yellowbear, "The law does not protect from governmental intrusion every act born of personal conscience or philosophical conviction. It protects only those motivated by religious faith."

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