In a January interview with the Christian Broadcasting Network, Donald Trump promised a nominee for the Supreme Court that “evangelicals, Christians will love.” In Neil Gorsuch, Trump has nominated a judge more religiously motivated than perhaps even the staunchest religious conservatives sitting on the Court today. His confirmation would place on this nation’s highest court a man who has readily allowed the religious convictions of a few to govern the lives of all Americans.
Looking at the most consequential church-and-state case in recent years — Burwell v. Hobby Lobby Stores, Inc. — illustrates just how extreme Gorsuch’s views are. Before the now-infamous case reached the Supreme Court in 2014, it was heard by the U.S. Court of Appeals for the Tenth Circuit, on which Gorsuch sits. The Supreme Court’s ultimate decision in that case was deeply disturbing for women’s reproductive health. It exempted Hobby Lobby from having to provide contraceptive coverage under the Affordable Care Act (ACA), opening the door to challenges from corporations over laws that they claim violate their religious liberty.
But, an opinion written by Judge Gorsuch before the case was appealed to the Supreme Court was even more extreme, supporting even more sweeping religious exemptions from laws. “All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others,” Gorsuch wrote, “[was] the key to understanding this case” — a view that is even more dangerous for LGBT and reproductive rights than the Supreme Court’s ruling in three key ways.
First, while the Supreme Court’s decision in Hobby Lobby considered the impact of the case on women, Judge Gorsuch’s opinion does not even acknowledge the harmful effects of denying access to reproductive healthcare on female employees and dependents. Instead, his sole concern is for religious objectors who feel complicit in the allegedly sinful conduct of others.
Second, the Supreme Court weighed the business owners’ religious liberty claim against Congress’s interest in protecting women’s health. Indeed, the federal Religious Freedom Restoration Act (RFRA), the law that Hobby Lobby invoked to challenge the ACA, contains a framework for striking balances between religious liberty and competing governmental interests.
Troublingly, Judge Gorsuch’s opinion makes no attempt to balance different interests. Although he writes that the terms of RFRA apply where there are sincerely held religious beliefs, he does not even allude to the requirement to strike a balance — as if having religious beliefs is enough to justify exemptions from laws.
Finally, even the conservative Justice Samuel Alito, writing for the majority of the Supreme Court in Hobby Lobby, cautioned that the decision in that case does not provide a “shield” for discrimination “cloaked as religious practice.” Justice Anthony Kennedy wrote in his concurrence that the exercise of one’s religion may not “unduly restrict other persons … in protecting their own interests,” and that those interests are “compelling.”
Tellingly, Judge Gorsuch offers no words of caution against religiously motivated discrimination. If anything, he considers it inappropriate for courts to explore whether a religious objector’s alleged “complicity … in wrongful conduct” of others has an actual basis in fact or faith.
These differences between the Supreme Court and Judge Gorsuch are deeply consequential. The Supreme Court opinion in Hobby Lobby has already been cited in federal courts to justify discrimination against employees on the basis of gender. Replacing the Court’s opinion in that case with Judge Gorsuch’s views would do away with even minimal concern for women’s health and lives.
The stakes are also high for LGBT rights. Religious exemption claims are being advanced by individual and government actors to chip away at federal protections for LGBT people and judicial landmarks like Obergefell. The Trump Administration is reported to be preparing an executive order that would seek to legalize anti-LGBT discrimination in the name of religion and would certainly be challenged in court.
At a moment when some are openly flouting the law of the land to discriminate against LGBT people, Supreme Court Justices need to make decisions based on constitutional and legal principles — not religion, politics, or popular opinion.
Just as importantly, Justices need to identify and balance different interests when applying legal tests — like whether religious accommodations place “significant burdens” on third parties, or whether abortion restrictions place “undue burden” on women.
Judge Gorsuch’s Hobby Lobby opinion casts serious doubt on his ability to recognize non-religious interests, to weight them appropriately, and to appreciate the stakes of his judgments for the most vulnerable members of society — which leads to the question: Will Neil Gorsuch be a Justice for the religious and the rich while doing injustice to women and minorities?
Yuvraj Joshi is the fair courts project fellow at Lambda Legal.