Tuesday, May 2, 2017


Before being elevated to the Supreme Court, Justice Neil Gorsuch sat on the 10th Circuit Court of Appeals. One case that came before 10th Circuit during his tenure was the case of the Little Sisters of the Poor. That case involved that charity's contention that the Obamacare mandate requiring them to provide contraceptives which could induce abortions violated their religious liberties. The Little Sisters of the Poor also contended that the required forms they had to fill out to make those drugs available also violated their liberties. The majority of the 10th Circuit ruled against the charity. Justice Gorsuch wrote a dissent. (HT: Various examples of Neil Gorsuch's writings from the Washington Post) In Gorsuch's opinion, the majority of the Judges on the 10th Circuit restated the beliefs of the plaintiffs so they could rule that the Obamacare regulation did not substantially burden their religious liberties.The case made it to the Supreme Court which sent the case back to the Appellate Court for further adjudication. However, this move is seen as a victory because the Obamacare rules on contraception/abortifacients were vacated in a unanimous decision. The reasoning behind Gorsuch's dissent, written before the case went to the Supreme Court, can be seen below. I especially direct your attention to his concluding remarks:

 "The opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty. When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of 

Where, in Gorsuch's opinion, did the 10th Circuit go wrong? Here is his answer:

"It (the majority does not doubt the sincerity of the plaintiffs’ religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief. It generalizes the belief as being only opposition to facilitating the use and delivery of certain contraceptives to which they object. Under this reframing, the plaintiffs have no religious objection to executing the forms; it is just that executing the forms burdens their religious opposition to certain contraceptives. The burden would be akin to that caused by a tax on sales of religious tracts at the church bookstore, where the church has no religious objection to paying a tax but complains that the tax will make it harder to spread the Gospel. After so framing the plaintiffs’ belief, the panel majority then examines the particulars of the governing law and decides that executing the documents does not really implicate the plaintiffs in the use or delivery of the contraceptives. If one accepts this reframing of plaintiffs’ belief, the analysis of the panel majority may be correct; perhaps one could say that the exercise of this reframed belief was not substantially burdened. But it is not the job of the judiciary to tell people what their religious beliefs are."

Gorsuch went on to describe the dangers of courts deciding which religious beliefs are reasonable and which are not:

"...the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative? A Christian could be required to work on December 25 because, according to a court, his core belief is that he should not work on the anniversary of the birth of Jesus but a history of the calendar and other sources show that Jesus was actually born in March; a December 25 work requirement therefore does not substantially burden his core belief. Or a Jewish prisoner could be provided only non-kosher food because the real purpose of biblical dietary laws is health, so as long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not substantially burdened. The Supreme Court has refused to examine the reasonableness of a sincere religious belief—in particular, the reasonableness of where the believer draws the line between sinful and acceptable—at least since Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 715 (1981), and it emphatically reaffirmed
that position in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014)."

In his conclusion, Gorsuch emphatically states that a person's religious beliefs are always substantially burdened when that person must pay a penalty for acting upon them:

"Fortunately, the doctrine of the panel majority will not long survive. It is contrary to all precedent concerning the free exercise of religion. I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs)."

Lets look at that last sentence again:

"I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs)."

It would have been interesting to have seen how Gorsuch would have ruled in the case of Kim Davis, the Kentucky clerk who thought her Christian beliefs prohibited her from processing marriage licenses for those seeking same sex marriage. She sought an accommodation from the state for her religious beliefs that would have allowed those licenses to be issued without her beliefs being compromised. The state would not cooperate and jailed her for a short time. However, after a new (Republican) governor replaced the outgoing (Democrat) governor, a compromise was reached which accommodated Davis. The legislature later ratified the Governor's decision as the law of the state. This proves that an accommodation along these lines could have been reached before Davis was sent to jail. The powers that be, including some conservative commentators, simply wanted her to be jailed. As in the Little Sisters of the Poor case, the state had alternatives to implement the policies concerning same sex marriage. ( In the Little Sisters case, the Obama administration admitted there were other ways they could make the contraception pills available.) Certainly, the state of Kentucky was demanding she pay a substantial penalty for refusing to act against her own conscience. According to Gorsuch's dissent in the Little Sisters case, that penalty imposed on Davis does not pass Constitutional scrutiny. I'm glad Neil Gorsuch has been elevated to our highest court to replace Antonin Scalia. I pray that when President Trump has more opportunities to nominate justices to the Supreme Court, he names people who will protect the freedom of conscience from government coercion, such as Neil Gorsuch.

No comments: