The Very Unoriginalist Justice Neil Gorsuch

When Donald Trump tabbed Neil Gorsuch to fill the Supreme Court vacancy left by the 2016 death of Justice Antonin Scalia, the popular buzz was that Gorsuch would be an originalist, just like Scalia always claimed to be. This meant that in his judicial decision making, he would look to the views of relevant Founders to discern their intents and meanings and adhere to them when deciding today’s issues. This article will examine whether Gorsuch does that, specifically with regard to judicial issues involving religion.

Just how originalist had Gorsuch shown himself to be before being picked for a SCOTUS seat? Prior to the famed Hobby Lobby case reaching the Supreme Court in 2014, he had, at a lower court level, sided with that private corporation’s claim to a religious exemption to the requirement for providing contraceptive coverage under the Affordable Care Act (ACA). This position effectively empowered the religious belief of a few to limit the legislated rights of many to certain health care benefits.

He acted similarly in joining a dissenting opinion when the 10th Circuit Court in 2015 rejected a claim by the Little Sisters of the Poor on the same ACA-required contraceptive coverage. The group of religious nuns had already been given an exemption to directly providing the coverage, with the government stepping in to do so, as long as they stated their objection in writing. They contended that even stating their objection violated their religious freedom, and Gorsuch agreed.

Gorsuch had also voted to uphold the constitutionality of government-sponsored religious displays, contending in one case that the Ten Commandments can be said to convey a secular message, despite their clear religious lineage. In another opinion endorsing the erection of crosses on public property, he opined that crosses do not promote religion. He went so far as to suggest it may even be constitutional for government to endorse religion. Here he mirrored his predecessor, Scalia, who had once argued it’s a false notion that government cannot favor religion over non-religion. (Despite his claim to be one, Scalia was clearly no originalist on such issues.)

As this article will explain, these past actions by Gorsuch—which exhibited an excessive deference to religion, even at the expense of other citizens’ rights and freedoms—were contrary to founding principles and already indicated how un-originalist his judicial thinking could be. Now that he has been on the nation’s highest court bench a while, does his jurisprudence bear out the notion he is an originalist after all? Spoiler alert: No, it does not.

Gorsuch at odds with the Founders

Gorsuch in 2020 joined in a SCOTUS majority decision that ratified the very same position he previously held regarding the contraception matter with the Little Sisters of the Poor. Also last year, he was firmly in the majority when SCOTUS ruled in Espinoza v. Montana Department of Revenue that taxpayer funds can flow to religious schools (indirectly, via credits), including schools with religious teaching that taxpayers themselves may or may not personally support. The Court said denying such funding would discriminate against religion. This view ignored the pertinent historical fact that our Founders quite purposely “discriminated” against religion when it came to having the government fund it. They disallowed such funding. This was, in fact, a signature component of their revolutionary concept of keeping church and state separate.

Thomas Jefferson, for example, stated in his precedent-setting Virginia Statute for Religious Freedom (1786) that “…to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical … [therefore] no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” (This wording, by the way, is close to the same wording in the Montana constitution that banned tax funding for religious entities. Yet the Court, with Gorsuch’s agreement, found that ban on funding to be unsupportable.) Jefferson of course is also well known for declaring there should be “a wall of separation between church and state,” which would preclude allowing state money to flow to church uses.

The Constitution’s chief draftsman, James Madison, expressed similar sentiments in his 1785 Memorial and Remonstrance Against Religious Assessments. There he opposed a proposal for taxes to pay religious teachers, calling it “a dangerous abuse of power” and an alarming “experiment on our liberties.” Nearly 40 years later, in a letter to Edward Livingston, Madison lauded Livingston for advocating an “immunity” between religious and civil matters. He wrote: “This has always been a favorite principle with me … I have no doubt that every new example will succeed, as every past one has done, in showing that religion and government will both exist in greater purity the less they are mixed together.”

Benjamin Franklin, as president of the Pennsylvania Constitutional Convention, expressed dislike for religious tests for office, one reason being that he believed they were invented to secure financial support for churchmen. He went on to say that a “good” religion can and should support itself, and if it has to call for support from civil authorities, “’tis a sign, I apprehend, of its being a bad one.”

So the original intents of pivotal Founders are clear to any literate reader of our history. They opposed giving public funding to religious entities, especially when this would impose on the rights and freedoms of citizens at large. Perhaps Gorsuch needs to read more of that history.

More on Espinoza

In the Espinoza decision, Chief Justice John Roberts, in what might be considered a moment of maximum irony, cited precedence in a 1947 case, Everson v. Board of Education, that forbade discriminating against members of faith when it comes to “benefits of public welfare,” which in that case referred to paying for school bus transportation. The irony? Did Roberts not know what the same Everson decision also said about government funding religion itself? To quote Justice Hugo Black in Everson: “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”

It’s fair to say Hugo Black was an originalist 70+ years ago on disallowing tax funds to support religion. As for our “originalist” SCOTUS brethren in 2020, Gorsuch included, far from defending originalism, they waged an assault on it.

The Espinoza case, besides giving broad permission for tax funds to flow to religious schools, encompassed troubling subnotes in which Gorsuch doubled down on his non-originalism. Here we get into the matter of government formally favoring religion and granting it extraordinary privileges, to a degree the Founders consistently sought to avoid.

For instance, Gorsuch formally joined with Justice Clarence Thomas’ wording in Espinoza on at least two key points:

1) Thomas wrote: “Properly understood the Establishment Clause does not prohibit States from favoring religion.” Scalia would have agreed; so does Gorsuch; the Founders would not. Madison, for instance, wrote that to suggest a civil authority is a competent judge of religious truths is “an arrogant pretension” and “an unhallowed perversion of the means of salvation.”

2) Thomas wrote: Church-state separation “operates as a type of content-based restriction on the government” and “communicates a message that religion is dangerous.” That’s simply a biased misinterpretation on his part. The fact is that keeping government and religion separate serves to safeguard religion’s unique standing, keeps it and government from intermeddling, and respects the diversity of varied sects. Yet Gorsuch joined Thomas on this viewpoint.

SCOTUS dissenters got it right

In their Espinoza dissents, Justices Stephen Breyer and Sonia Sotomayor exhibited clearer originalist perspectives regarding tax funding to support religious teaching. Breyer wrote that “Madison and Jefferson saw it clearly” in opposing taxpayer support for religion. “They [even] opposed including theological professorships in their plans for the public University of Virginia, and the Commonwealth hesitated to grant charters to religiously affiliated schools.”

“For our purposes,” Breyer continued, “it is enough to say that, among those who gave shape to the young Republic were people, including Madison and Jefferson, who perceived a grave threat to individual liberty and communal harmony in tax support for the teaching of religious truths.” Referring specifically to the tax-aid-to-schools issue in Espinoza, Breyer wrote: “If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom.”

Justice Sotomayor also disagreed with the majority’s view in Espinoza that barring tax funds for religious schools suppresses or penalizes religion. “A State’s decision not to fund religious activity does not ‘disfavor’ religion,” she wrote. “Rather it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns.”

Sotomayor concluded by saying the majority’s decision favoring tax aid to religious schools was “perverse.” “While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone,” she wrote, “it has never meant that a majority could use the machinery of the State to practice its beliefs.”

So again, when it comes to tax funding for religious entities, the original intents of the Founders are there to see for anyone willing to look. The Founders decried such funding. The question is why 21st century jurists like Gorsuch, who claim to believe in originalism, repeatedly seem blind to those intents, or readily willing to set them aside.

The matter of harming in religion’s name

In addition to the tax issue in Espinoza, Justice Gorsuch in a separate concurring opinion offered a disturbing additional piece of un-originalist judicial philosophy—one that invites inflicting real harm on others by excessively privileging religion. This kind of harm issue is also apparent in Gorsuch’s earlier judicial actions, mentioned in the beginning of this article, regarding the cases involving Hobby Lobby and Little Sisters of the Poor. As we’ll see, permitting such harm in religion’s name is contrary to the Founders’ intent.

In his Espinoza concurrence, Gorsuch weighed the difference between what a religious person believes versus what a religious person does based on that belief. The basic question Gorsuch asked was: Should religious actions be protected as broadly as religious belief from government intrusion or limits? His answer was an unequivocal Yes.

He contended the guarantee of “free exercise” of religion encompasses both belief and activity. “That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly,” he wrote. “It also protects the right to act on those beliefs outwardly and publicly.”

He went on: “The right to be religious without the right to do religious things would hardly amount to a right at all. … what about those with a deep faith that requires them to do things passing legislative majorities might find unseemly?”

Is religion’s license to harm unlimited?

One might throw that question back at Gorsuch and ask: What about those with a deep faith that compels them to do things that are outright harmful to others? Are there no exceptions when it comes to protecting religious activity? Where are the limits?

When the Catholic Church’s pedophilia scandal broke wide open, especially in Boston and New York, some priests who had sexually abused young boys claimed they were merely trying to help the boys arrive at a morally correct sexual identity. The priests said they were using a homosexual experience as a sort of aversion therapy, a means to head off a sinful lifestyle by the boys later in adulthood. Preposterous as that sounds, such was the priests’ religious belief. So would Gorsuch’s idea of free exercise protect the resulting religious activity of sexually assaulting minors?

Jehovah’s Witnesses in the past successfully pressed a First Amendment case in court, arguing they had no duty to protect their children from abuse as long as their actions were within their religious rights to decide matters of faith and doctrine. Is such abuse also a religious activity that Gorsuch’s idea of free exercise would protect?

In Minnesota a Christian Scientist mother allowed her son to die of untreated diabetes. At the time a court ruled that imposing any punitive damages on her would risk intruding upon the “forbidden field” of religious freedom. Would this mirror Gorsuch’s idea of free exercise protecting religious activity?

Gorsuch asked: “What point is it to tell a person that he is free to be a Muslim but he may be subject to discrimination for doing what his religion commands?” He may have thought that to be a rhetorical question. It is not. Because the point is that even in a society that cherishes religious freedom, people are not free—or at least should not be free—to visit harm upon others in religion’s name.

Back to the Founders

Our Founders could readily see this. Jefferson said using religion to withhold another individual’s rights “is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right.” In other words, there are limits on activity, if not on belief. In his famous “wall of separation” letter to the Danbury Baptists, he made the observation that “the legislative powers of government reach actions only, and not opinions.” Every rational person who cherishes freedom of thought would agree that government power ought not control opinions. But the thing to note here is that Jefferson allowed that government can indeed “reach actions.” The alternative would be chaos, anarchy, and the like.

Madison held a view that there can be too much liberty, something the culture in his day referred to as “licentiousness,” defined as a disregard for rules or legal restraint. In a post-presidency Detached Memorandum, Madison warned against permitting religion to become “the means of abridging the natural and equal rights of all men.”

Reverend John Witherspoon, the only active clergyman to sign the Declaration of Independence, said in 1805: “The true notion of liberty is the prevalence of law and order, and the security of individuals.” He concluded that one object of civil laws “is limiting citizens in the exercise of their rights so that they may not be injurious to one another.” Witherspoon was also a member of the Continental Congress and trained the Founders on principles of governance.

Once again it seems that Gorsuch has not read enough of our history to comprehend what the original intents of the Founders were. Either that, or he opts to disagree with them. Whichever it is, it’s not originalism.

Exempting religion from applicable law

Only several days after the Espinoza ruling, in Our Lady of Guadalupe School v. Morrissey-Berru, Gorsuch joined the SCOTUS majority in broadening the “ministerial exception” religious institutions can claim from generally applicable laws. The effect of this decision is that a religious entity can claim that virtually every one of its employees is “ministerial” for legal purposes, giving the religious entity carte blanche on matters such as hiring and firing, promotions, equal treatment, and other personnel-related decisions. This is justified, SCOTUS ruled, because the government is constitutionally prohibited from intruding on how religious entities handle their staffing.

This greenlights widespread discrimination, even if it’s blatant or capricious, even if it’s contradictory to generally applicable antidiscrimination law. For example, civil rights for women and LGBTQ people will not be guaranteed. Plus, religious schools also frequently discriminate in whom they will accept as students. Americans United for Separation of Church and State identified 10 of the 12 religious schools in Montana’s voucher program as having discriminatory policies in place. So the Espinoza decision not only enables such discrimination but also forces taxpayers to support it. That indirectly harms such taxpayers.

In the Lady of Guadalupe decision on ministerial exceptions, dissenting Justice Sonia Sotomayor got it right as far as when religious activity can be properly subject to limitations. Sotomayor pointed out that “the [ministerial] exception is extraordinarily potent: It gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their ‘ministers,’ even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices. That is, an employer need not cite or possess a religious reason at all; the ministerial exception even condones animus.”

“Grave consequences”

Justice Clarence Thomas issued a separate concurring opinion in Guadalupe, which was devoted primarily to underscoring his belief that only the religious entities themselves can define what a qualifying “minister” is and government must stay out of that. Gorsuch joined this concurrence.

To which Sotomayor rebutted: “[T]he Court’s apparent deference here threatens to make nearly anyone whom the schools might hire ‘ministers’ unprotected from discrimination in the hiring process. That cannot be right. Although certain religious functions may be important to a church, a person’s performance of some of those functions does not mechanically trigger a categorical exemption from generally applicable antidiscrimination laws. Today’s decision thus invites the ‘potential for abuse’ against which circuit courts have long warned.”

“The Court’s conclusion portends grave consequences,” Sotomayor concluded. “Thousands of Catholic teachers may lose employment-law protections. Other sources tally over a hundred thousand secular teachers whose rights are at risk. And that says nothing of the rights of countless … others who work for religious institutions. All these employees could be subject to discrimination for reasons completely irrelevant to their employers’ religious tenets.

“This sweeping result is profoundly unfair… permitting religious entities to discriminate widely and with impunity… The inherent injustice in the Court’s conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours.”

Originalism sidelined

In separate cases in May and July of 2020, SCOTUS ruled that it is constitutional to impose limits on church gatherings to safeguard public health. Gorsuch dissented in both cases, even though empirical data showed such gatherings can be dangerous vectors for spreading the novel coronavirus. He wrote that such restrictions discriminated against “the free exercise of religion.” But following the death of Justice Ruth Bader Ginsburg, who was a strong advocate of church-state separation, and the seating of Amy Coney Barrett, who leans decidedly the other way, SCOTUS decisions on this issue changed. The Court now began allowing church gatherings to take place, despite the public health risks. Gorsuch was then in the majority on these rulings, effectively turning a blind eye to the harm that such gatherings might cause.

As with the issue of opposing tax funding for religious entities, the original intents of the Founders on allowing harm to others in religion’s name are readily apparent. The Founders were concerned about such harm, wrote forcefully against it, and worked to keep it from happening. Yet jurists like Gorsuch, who claim to believe in originalism, contravene those original intents by too regularly deferring to religious individuals and entities, giving them license to harm others based on religious beliefs.

Earlier we saw that Founders like Jefferson, Madison, Franklin, and Witherspoon, even while advocating for religious freedom as a paramount principle, also cautioned against allowing religion to usurp “natural and equal rights,” or to be “injurious” to others, or to be enabled to extract “sinful and tyrannical” tax support from those who do not share the faith. Jefferson asserted succinctly in his Virginia Statute for Religious Freedom that “our civil rights have no dependence on our religious opinions.”

Bona fide originalists understand and heed the Founders’ intents on matters like these. Justice Neil Gorsuch apparently sees no need to do the same.

Ken Burrows
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Ken Burrows of Colorado Springs is a longstanding member of Americans United for Separation of Church and State and the American Humanist Association. He writes frequently on church-state issues.

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