- Deseret News - Tuesday, March 28, 2017

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 SenateJudiciary 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 the Religious Freedom Restoration Act, protections for religious minorities and related legal issues.

Here’s an overview of the role major religious freedom issues have played so far:

Corporate faith

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 the act 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.”

Religious minorities

Gorsuch’s response to Hatch highlighted cases involving members of minority faiths, who often depend on the court system to address religious discrimination.

Gorsuch has been a valuable ally of these believers through his judicial career, noted Hannah Smith, senior counsel at the public interest law firm Becket, who voiced her support during a day of testimony from outside experts on Friday.

“Judge Gorsuch has demonstrated repeatedly that he applies the law fairly to protect religious minorities and incarcerated persons  —  some of the most politically powerless in our society,” she said.

The Supreme Court nominee had an opportunity to further reflect on constitutional protections for all faith groups when answering a question about religious tests for citizenship from Sen. Patrick Leahy, D-Vt.

“We have a free exercise clause that protects the free exercise of religious liberties by all persons in this country,” Gorsuch said. “I will apply the law faithfully and fearlessly and without regard to persons. … Any law is going to get a fair and square deal with me.”

Overall, Gorsuch’s past rulings and testimony before the SenateJudiciary Committee illustrate his commitment to upholding religious freedom, Smith argued.

“His jurisprudence demonstrates an even-handed application of the principle that religious liberty is fundamental to freedom and to human dignity, and that protecting the religious rights of others — even the rights of those with whom we may disagree — ultimately leads to greater protections for all of our rights,” she said.

GOP Senate leaders hope to have Gorsuch confirmed to the Supreme Court before Easter.

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