What would a Justice Neil Gorsuch do? We need not look far to answer that question.
Today, the Supreme Court decided, for the ninth time since all the briefs were filed, to postpone a decision on whether to take up the case of Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n. That case has been a flashpoint in Colorado, and could be one nationally, on the “right” of businesses to use religion as the reason for discriminating against members of the LGBT community. It could legitimate discrimination against women, people of color and members of religious groups. And a Gorsuch vote could make that happen.
As the Colorado Court of Appeals noted, this case arose from the decision of a bakery in a Denver suburb not to decorate or sell a wedding cake for a same-sex wedding ceremony. The owners of that bakery justified their decision on religious grounds. That court decided that the Colorado Anti-Discrimination Act (“CADA”) “is a neutral law of general applicability, and does not offend the Free Exercise Clause of the First Amendment.” The bakery, that court concluded, ” remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage. However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, CADA prohibits it from picking and choosing customers based on their sexual orientation.”
This is not a new legal principle. Fifty-one years ago, a federal district judge rejected the assertion by restaurants in South Carolina that requiring them to serve African-American customers violated their First Amendment right to free exercise of their owner’s religious beliefs. It rejected the owner’s argument “that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 945 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).
Judge Gorsuch, in contrast, has expressed an expansive view of First Amendment religious rights. He stated, in his concurring opinion in Hobby Lobby Stores, Inc. v. Sibelius, 723 F.3d 1114 (10th Cir. 2013), aff’d, 134 S.Ct. 2751 (2014), that the Affordable Care Act’s requirement that company-provided health insurance coverage contraception “infringes the [company’s owners’] religious liberties by requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong.” He ignored the fact that the statute he was interpreting, the Religious Freedom Restoration Act (“RFRA”), applies only to government conduct that imposes a “substantial burden” on people’s religious expression. He ignored the fact that Hobby Lobby was being required only to include contraceptive coverage in a plan that it paid for, the interests of the women who were seeking insurance coverage for contraception, and the fact that none of the contraceptive methods to which it objected would prevent implantation of a fertilized human egg.
In a later case, Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315 (10th Cir. Colo. 2015), vacated sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (U.S. 2016), he voted to have the entire court decide whether a system, which allowed a religious employer that objected on religious grounds to paying for contraceptive coverage by submitting a form to the insurer or to the federal government, violated their rights under RFRA. Again, none of this would have imposed a substantial burden on the objectors’ religious beliefs. All they would have had to do is to fill out a form.
Two other cases show how far Judge Gorsuch is willing to go. In Green v. Haskell County Bd. of Comm’rs, 574 F.3d 1235 (10th Cir. 2009), he voted to have the full court consider whether a county government violated the Establishment Clause of the First Amendment by installing on the courthouse lawn a monument with a summary of one version of the Ten Commandments on one side and the Mayflower Compact on the other. He ignored the fact that the language on that monument was not the Jewish version of the Ten Commandments, and the specifically religious content and context of the Mayflower Compact. Instead, he viewed the Ten Commandments as a secular document, which incidentally trivializes the obviously religious character of the Commandments.
And he also sought full-court review of a decision that held that government-paid highway memorials, in the form of twelve-foot high crosses, for fallen state troopers had “the impermissible effect of conveying to the reasonable observer the message that the State prefers or otherwise endorses a certain religion.” Am. Atheists, Inc. v. Duncan, 637 F.3d 1095 (10th Cir. 2010). That’s right, he believed that the display of crosses, paid for by the state government, did not endorse Christianity.
Judge Gorsuch does not understand or does not care about the rights of members of religious minorities — such as Jews, Muslims, Hindus and Buddhists — and of atheists not to have their government promote the view of a particular religion or set of religions. He is not willing to consider the concerns of some — such as the female employees of Hobby Lobby — who would not be able to exercise their right to insurance coverage for contraception because of the religious beliefs of their employers or of their employers’ owners.
If he is confirmed, Judge Gorsuch likely would vote to allow employers and other businesses to use religion as the reason for blatant discrimination against others. Any such precedent would be difficult to confine to discrimination because of sexual orientation. Companies could refuse to hire women, or members of other religions, or members of other races, on religious grounds. Or people could use religion as an excuse not to pay taxes, or not to obey noise or zoning ordinances, or to practice plural marriage, or many other things that would be illegal for anyone else.
This is deeply alarming. It is one more reason why the Senate should not confirm Judge Gorsuch.