What Gorsuch Sees That Scalia Didn’t

Posted on March 17, 2017 In Blog

Courts have turned religious liberty into the First Amendment’s weakened stepchild.


Nathan Diament

March 17, 2017

Well before he nominated Neil Gorsuch to the U.S. Supreme Court, President Trump proclaimed his intention to pick someone in the mold of the late Justice Antonin Scalia, as well as someone who would be a champion of religious liberty. Yet when it comes to religious claims under the First Amendment, Judge Gorsuch’s reading of the Constitution may be more generous even than Scalia’s.

In 1990 Scalia severely curtailed the First Amendment’s protection for the free exercise of religion. The case was Employment Division v. Smith. Alfred Smith, a Native American who worked as a counselor at an Oregon drug clinic, had been denied unemployment benefits after he was fired for taking peyote, a hallucinogen, as part of a religious ceremony. The Oregon law banning peyote included no exception for religious use.

Smith challenged the decision to deny him benefits as a violation of his First Amendment right to free exercise of religion. At the time, Supreme Court precedents held that Oregon would have to justify its law under the highest standard of constitutional proof, known as strict scrutiny. It would have to show the law served a “compelling governmental interest” that would be undermined by any religious exemption.

A divided court overturned those precedents. Justice Scalia, writing for a five-justice majority, held that a person’s right to the free exercise of religion would receive a lower level of legal protection when the law in question doesn’t specifically target religion. Oregon’s law was upheld because, Scalia reasoned, the ban on peyote use was a “neutral law of general applicability,” so a religious exemption was not required. Ever since that ruling, religious liberty has been the weakened stepchild of the First Amendment.

There have been bipartisan efforts to undo Smith legislatively. In 1993 Congress passed, and President Clinton signed, the Religious Freedom Restoration Act, which reinstated the “compelling interest” standard. But under a 1997 Supreme Court ruling, RFRA applies only to the federal government, not state and local ones.

Samuel Alito, appointed to the high court in 2006, was the first of the newer justices who had a record of disagreeing with Smith. Judge Gorsuch would be another. He appears to be sensitive to the needs of religious minorities and the role faith plays in people’s lives.

Judge Gorsuch served on the 10th Circuit Court of Appeals panels that heard the pair of cases—Hobby Lobby (2013) and Little Sisters of the Poor (2015)—challenging the ObamaCare “contraceptive mandate.” That regulation requires employers to include coverage for birth control and sterilization in the health insurance plans they offer their workers. The religious owners of Hobby Lobby and the Catholic nuns asserted that the mandate would make them complicit in activities their faith teaches to be wrong. They invoked the Religious Freedom Restoration Act.

The 10th Circuit, and ultimately the Supreme Court, accepted their argument. Judge Gorsuch wrote a separate opinion in Hobby Lobby arguing that RFRA “doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

In applying RFRA, he added, “it is not for secular courts to rewrite the religious complaint of a faithful adherent.” Instead “the underlying wrong is sometimes itself a matter of faith we must respect.” Since the owners of Hobby Lobby faced an impossible choice between “abiding their religion or saving their business” and because the government had other ways to achieve its policy goals, Judge Gorsuch held that RFRA overrode the ObamaCare regulation.

In a 2014 case, Judge Gorsuch displayed sensitivity to minority faiths by upholding the religious-liberty claim of a Native American prison inmate, Andrew Yellowbear. Prison officials had denied him access to a sweat lodge, a necessity for his form of prayer. Under another statute, Judge Gorsuch held that the officials lacked a compelling interest for denying his religious freedom.

What comes through in these opinions is a recognition that seems to have eluded Scalia in 1990: The law is meant to be a bulwark against the infringement—whether by government or other powerful entities—upon a person’s religious conscience and practices. It is not enough to allow Americans to believe as they wish; they must also be able, generally, to act in conformity with their beliefs.

Accommodations for religious observance are welcome from the legislative or executive branches, but the Framers put freedom of religion in the Bill of Rights to guarantee it. The First Amendment applies to people of all faiths, and shouldn’t depend on political power. What is required is enforcement by jurists sensitive to the needs of religious minorities.

Whether Judge Gorsuch will be confirmed to the Supreme Court remains to be seen. But his record suggests that those who care about religious liberty may want to pray that he gets the chance to rule on it.

Mr. Diament is executive director of public policy of the Union of Orthodox Jewish Congregations of America.

Appeared in the Mar. 17, 2017, print edition of the Wall Street Journal.