Berkley Forum

Justice Gorsuch, a Likely Echo of Scalia

Responding to What Does Neil Gorsuch Mean for Civil Liberties?

Neil Gorsuch seems certain to join the U.S. Supreme Court this spring; although to make it happen, Republicans likely will have to abolish the filibuster on high court nominations. What will Gorsuch’s arrival mean for religious freedom questions facing the Court now or in the near future?

The major current case is Trinity Lutheran Church v. Pauley, which asks whether the Free Exercise Clause forbids the state to exclude a church-owned daycare from funding (for resurfacing its playground) that’s available to secular counterparts. The Court granted review in January 2016, one month before Justice Scalia died. Since then the seat has been open; oral argument, postponed for months, is now approaching on April 19. Gorsuch cannot participate unless he takes his seat before argument, which will be difficult, although not impossible, for Republicans to accomplish.

Gorsuch’s vote could be crucial. The Court is inclined to permit the inclusion of religious institutions in a neutral funding program, but much less inclined to require their inclusion. The looming dispute is whether anti-funding provisions in state constitutions can bar religious schools from participating in tuition voucher programs. Safe playground surfaces are a more “secular” form of aid; a ruling for the church would not determine the voucher case, but it would strengthen religious schools’ claims, while a ruling against the church would hurt them.

Adding Gorsuch may change results from those of an eight-justice Court. But if we compare his votes with Scalia’s, Gorsuch will have little effect on issues involving government aid to religion. On the Tenth Circuit, Gorsuch dissented from decisions holding that government displays with religious content violated the Establishment Clause by “endorsing” religion. One case involved roadside crosses commemorating fallen Utah state troopers, another a Ten Commandments display outside an Oklahoma courthouse. In the trooper case, Gorsuch charged that the majority misapplied the “reasonable observer” test for determining religious endorsements by hypothesizing a “biased, impaired, and distracted” observer. He also expressed doubts about the test itself, which suggests that as a justice, he might vote to jettison it.

Still, Gorsuch cannot be any more permissive toward government promotion of religion than was Scalia, who voted against the challengers in each of the 23 Establishment Clause merits cases during his tenure.

In cases involving the free exercise of religion, Gorsuch became known for ruling in favor of claimants under religious freedom statutes. He joined the Tenth Circuit’s Hobby Lobby ruling (affirmed by the Supreme Court) that the Religious Freedom Restoration Act (RFRA) protected business owners from having to provide insurance coverage for contraceptives they believed could cause abortions. He added a concurrence saying the companies could also sue. In the next round of litigation, he joined a dissent from the court’s refusal to reconsider a panel ruling that the Little Sisters of the Poor were not “substantially burdened” under RFRA by having to give notice that triggered their insurer’s duty to provide coverage for contraceptives.

Importantly, Gorsuch has also voted to protect claims by non-Christian minorities. He wrote an opinion vacating the dismissal of a Native American prisoner’s suit, under the Religious Land Use and Institutionalized Persons Act (RLUIPA), seeking access to the prison’s sweat lodge. And he joined an opinion holding that denial of a halal diet substantially burdened a Muslim inmate’s religion.

Two caveats. First, although Gorsuch has ruled for religious claimants, he has also been willing to question their assertions that a regulation burdened their sincere beliefs. He wrote a decision upholding a finding that marijuana users were insincere in claiming to be practicing religion. He also suggested that some limitations on a prisoner’s religious diet might not create a substantial burden.

Second, Gorsuch’s cases have involved claims under statutes: RFRA, which limits burdens on religion from federal laws, and RLUIPA, which limits burdens from state or federal prison or zoning rules. Those categories are important, but most burdens on religion come from other state or local laws. Federal challenges to such laws must rest on the Constitution: but the Court held in Employment Division v. Smith that the Free Exercise Clause does not require exemptions from laws that are neutral toward religion and generally applicable.

Smith’s effect shows, for example, in cases where conservative Christians object to state or local laws forbidding discrimination against same-sex couples. In a currently pending certiorari petition, a cake shop owner refused to design a cake for a same-sex wedding. He claimed rights of free speech and free exercise but lost both claims, the latter in significant part because of Smith.

Justice Scalia wrote Smith and continued to defend that decision vigorously, even as social conservatives increasingly became the ones seeking religious exemptions. Will Gorsuch be open to narrowing or even reconsidering Smith? Or does his commitment to religious accommodation rest solely on the text of religious freedom statutes? The answer to that question holds major implications for the future of religious freedom.
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