Why Religious Freedom Was Important to Republicans and Democrats In Gorsuch’s Confirmation Hearing
Republicans and Democrats had competing motives for bringing up religious freedom during last week’s confirmation hearing for President Donald Trump’s Supreme Court nominee, Judge Neil Gorsuch — conservative lawmakers on the Senate Judiciary Committee did so to praise Gorsuch, while those on the left looked for opportunities to trip him up.
Gorsuch, who serves on the 10th Circuit Court of Appeals, deftly handled both types of inquiries during his testimony, keeping his responses focused on the general objectives of laws designed to protect religious liberty. He defended his efforts to uphold the First Amendment and the Religious Freedom Restoration Act, while admitting that cases related to these protections are often difficult to resolve.
“Every judge who faced that case found it a hard one,” he said about Burwell v. Hobby Lobby Stores Inc., which centered on the Affordable Care Act’s contraception mandate and whether closely held corporations are protected under RFRA. Gorsuch ruled in favor of Hobby Lobby, and the Supreme Court upheld the appellate court’s decision in June 2014.
Religious freedom advocates generally celebrated Gorsuch’s nomination, which was widely understood as a fulfillment of Trump’s campaign promises to conservative religious voters. He appears poised to protect religious expression in its varied forms.
“Gorsuch’s record suggests that he will take seriously both the burdens that facially neutral laws can impose on religious believers and the requirement that the federal government do what it can to ease those burdens,” wrote Richard Garnett, a law professor at the University of Notre Dame, for Religion & Politics.
The confirmation process will continue into April, bringing more opportunities for Gorsuch to discuss his views on RFRA, protections for religious minorities and related legal issues.
Here’s an overview of the role major religious freedom issues have played so far:
It’s been nearly three years since Supreme Court justices ruled 5-4 in favor of Hobby Lobby, determining that the government should have offered closely held corporations the same accommodation on birth control available to religious non-profits. But the case is still top-of-mind for many Democratic lawmakers, who argue that religious freedom protections were never meant to apply to corporations.
Sen. Dick Durbin, D-Ill., shared this viewpoint during an exchange with Gorsuch on Tuesday, questioning how RFRA’s guarantees for religious “persons” could be used to protect Hobby Lobby and similar businesses.
Gorsuch defended his interpretation of the law, noting that judges “can’t rule out the possibility that some companies can practice religion.”
However, as he did at other points during his testimony, Gorsuch also admitted that the law is not always black-and-white.
“If we got it wrong, I’m sorry. We did our level best and we were affirmed by the United States Supreme Court,” Gorsuch told Durbin.
Religious Freedom Restoration Act
When asked about the Hobby Lobby case, Gorsuch often chose to speak on religious freedom law more broadly.
For example, in responding to Durbin’s query about the case, he first shared his interpretation of RFRA’s legal guarantees.
It says that “any sincerely held religious belief cannot be abridged by the government without a compelling reason and even then (the law) has to be narrowly tailored,” Gorsuch explained.
Sen. Orrin Hatch, R-Utah, encouraged Gorsuch to explain how his interpretation of RFRA in the Hobby Lobby case upheld the spirit of the law, which Hatch co-sponsored and helped draft.
Again, Gorsuch downplayed Hobby Lobby’s place in the grand scheme of RFRA-related case-law, drawing attention to other appeals he’d heard on the bench.
“I might give you even a couple other examples of RFRA’s application that I’ve been involved in that might shed some light on this,” he said. “It applied to a Muslim prisoner in Oklahoma who was denied a halal meal. It’s also the same law that protects the rights of a Native American prisoner who was denied access to his prison sweat lodge, it appeared, solely in retribution for a crime that he committed and it was a heinous crime. But it protects him, too.”
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