Expect Justice Gorsuch to Protect Religious Minorities Against Government Overreach

By: Robin Fretwell Wilson

April 11, 2017

What Does Neil Gorsuch Mean for Civil Liberties?

In the days and months leading up to Justice Gorsuch’s Supreme Court swearing-in ceremony, the alarm in some quarters reached a fevered pitch: “If you breathe air, drink water, eat food, take medicine, or in any other way interact with the courts, this is a very bad decision.” One would think Beelzebub was ascending to the Court.


For some, an especially troubling aspect of Judge Gorsuch’s record is his stance on religious liberty. Journalist Dahlia Lithwick has written: “His record reflects a pattern of systematically privileging the rights of religious believers over those of religious minorities and nonbelievers.”

We should ask how religious minorities will fare now that Judge Gorsuch has been confirmed.

This is not a merely academic question for this Court. A case knocking on the Supreme Court’s door, Sterling v. United States, seeks to flesh out whether a direct restraint on a person’s religious practice—that is, in the words of the court decision being appealed, “having restraints placed on behavior that is religiously motivated” but that falls short of forcing a person the claimant “to act contrary to her beliefs”—is a “substantial burden” for purposes of analyzing a religious freedom claim. The case involves a soldier who was discharged after a dispute over whether she could post a Bible verse inside her cubicle.

It’s important because the “forces one to act contrary to beliefs” threshold advanced by the military in this case leaves a lot unprotected below it.

To understand how Justice Gorsuch would likely address this question, let’s take a deep look at Yellowbear v. Lampert, a decision in which Judge Gorsuch wrote the majority opinion. In Yellowbear, a prisoner asked for access to a sweat lodge elsewhere at the prison to worship according to “his Native American religious tradition.” Housed in protective custody because of threats from other prisoners, prison officials said taking Yellowbear to the sweat lodge would require extra security.

The question before Gorsuch’s panel was whether to sustain the district court’s summary judgment for the prison or allow Yellowbear to proceed to trial. The court, thus, had to initially determine whether the government substantially burdened Yellowbear’s religious exercise and, if so, it could ask whether the government either lacked a compelling reason for doing so or had a less restrictive way to achieve its purposes—the same test for measuring government encroachments under RFRA.

The first prong is a game-over moment: If the action the government is preventing—access to the sweat lodge—does not rise to the level of a substantial burden on Yellowbear’s religious exercise, he has no opportunity to make the government show cause.

Citing an earlier decision he joined, Judge Gorsuch wrote: "a burden on a religious exercise rises to the level of being ‘substantial’ when (at the very least) the government (1) requires the plaintiff to participate in an activity prohibited by a sincerely held religious belief, (2) prevents the plaintiff from participating in an activity motivated by a sincerely held religious belief, or (3) places considerable pressure on the plaintiff to violate a sincerely held religious belief—for example, by presenting an illusory or Hobson's choice where the only realistically possible course of action available to the plaintiff trenches on sincere religious exercise."

Gorsuch also said “a burden can be ‘substantial’ even if it does not compel or order the claimant to betray a sincerely held religious belief. It is enough that the claimant is presented with a choice in which he faces considerable pressure to abandon the religious exercise at issue.”

Judge Gorsuch made short work of finding a substantial burden. Yellowbear’s religion required some access to a sweat lodge; the prison denied all access—a clear burden under the second test. Forcing Yellowbear “to choose between religious exercise and accepting a transfer” farther from friends and family would be the kind of choice that counts under the third prong, too.

In this forum, Professor Griffin faults Gorsuch for shortchanging the prison’s interests, but it was the prison’s failure to marshal evidence that sealed its fate. Prison officials never explained why ferrying Yellowbear to the sweat lodge was more taxing than its hourly prison-wide lock-downs to ferry inmates to the medical unit, for example.

Those who care deeply that religious minorities not suffer at the hands of the government should be delighted that Gorsuch refused to accept no proof.

What would this standard mean for people like Sterling?

Contrast the Tenth Circuit’s more protective standard with that of the Court of Appeals for Armed Forces (“CAAF”) in Sterling, which measured a substantial burden by whether Sterling believed “the signs were important to her exercise of religion, or that removing the signs would either prevent her ‘from engaging in conduct [her] religion requires,’ to ‘abandon[] one of the precepts of her religion.’” The pointedly reject Sterling’s invitation to “conclude that any interference at all with a religiously motivated action constitutes a substantial burden.”

So what is at stake in this circuit split over what counts as a substantial burden? Some Native Americans believe using artificial snow for skiing on a public mountain desecrates sacred lands—RFRA gave no opportunity to see whether other approaches would have achieved the government’s aims because it was not a substantial burden. Collecting DNA samples, not a substantial burden. What would count under even the CAAF’s high threshold? Telling prisoners they could only have ten books in their cells when one prisoner’s beliefs required him to read four new books a day or not allowing a prisoner to observe Ramadan.

Many restraints placed on religious excise fall short of creating a choice between one’s salvation and compliance with the law. The more protective standard developed by Gorsuch’s panel could mean access to halal meals, use of a church building designated as part of a historic zoning district, access to a sweat lodge and buffalo meat, access to game meat, access to tobacco, and celebration of holy days. Restraints on all of these could then be tested for whether they really are necessary.

If the Supreme Court takes Sterling and decides the split in favor of the less protective standard adopted by the Armed Forces Circuit, RFRA and RLUIPA would suddenly be far less protective of religious liberty than it has been in much of the country. It would mean that a host of religious claims would be easily dismissed unless the government directly required conduct that a person’s religion proscribed or the government forbade conduct that a person’s religion mandated. Despite the withering criticism of Justice Gorsuch’s views, religious minorities likely have secured an important advocate on the Court.
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