Neil Gorsuch: No originalist on church and state

Contributed by Ken Burrows, a Citizens Project Supporter

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 recorded views of relevant Founders to discern what intents and meanings they infused into the Constitution and other significant documents, and thus what original intents of theirs are applicable to today.

Watchers of church-state separation issues were immediately wary of just how originalist Gorsuch would be. His track record in that particular arena was not good. Prior to the famed Hobby Lobby case reaching the Supreme Court, he had, at a lower court level, sided with that private corporation’s claim to a religious exemption to the requirement for contraceptive coverage in 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. This, even though as part of his first public statements upon being nominated to the Supreme Court, Gorsuch said: “It is the role of judges to apply, not alter, the work of the people’s representatives.” Yet he favored altering what the people’s representatives created in the ACA, by carving out special exemptions in religion’s name.

He acted similarly in joining a dissenting opinion when the 10th Circuit Court 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 suggested that crosses do not promote religion, and he went so far as to question whether it is actually unconstitutional 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 church-state issues.)

And now, as a Supreme Court justice

So those were a few examples of Gorsuch in his pre-SCOTUS days. Now that he’s been on the nation’s highest court bench a while, how do his actions look on church-state separation? Do they bear out the notion he is an originalist? Spoiler alert: No, they do not.

He has, for instance, recently 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 earlier this year, on June 30, Gorsuch 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 majority’s justification was that to deny such funding on the basis of a school being religious was discriminatory toward religion.

That too-narrow 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 approach to the relationship they demanded between church and state: Namely, keep them separated, the better to safeguard religious freedom for all.

A look at the historical record

By way of brief review, Thomas Jefferson 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. 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: “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 seventy-three years ago on matters of church and state. As for our “originalist” SCOTUS brethren this summer, Gorsuch included, far from defending originalism, they waged an assault on it.

The SCOTUS Espinoza case gave broad permission for tax funds to flow to religious schools. That basic license alone contradicts the original intents of our Founders. But there are, additionally, troubling subnotes in the decision and, as we will see, a particularly disturbing piece of judicial philosophy espoused by Gorsuch on just how deferential he would be to religion when church-state conflicts arise.

For starters, Gorsuch formally joined with Justice Clarence Thomas’ wording 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.

The extreme deference to religion Gorsuch favors

But now we turn to Gorsuch’s own, separate concurring opinion in Espinoza, where he offers a judicial philosophy that not only contradicts originalism but does so to such a degree that it invites inflicting real harm on others.

In his concurrence, Gorsuch weighs the difference between actions that discriminate against religion based on religious status as opposed to religious use. Or to put it another way, the difference between what a religious person believes versus what a religious person does based on that belief. The basic question Gorsuch asks is: Should religious actions be protected as broadly as religious status from government intrusion or limits? His answer is an unequivocal Yes.

The Espinoza majority decision had concluded that the barring of tax funds for religious schools was wrong because it discriminated simply on the basis of the religious status of those schools. Montana had defended its ban on that tax funding by saying it sought to prevent using such funds to subsidize religious activity. Therefore, the state argued, it was not discriminating against religious belief. The SCOTUS majority did not see it that way, contending the Montana funding ban was indeed based on religious belief—that is, religious status.

But it was the very citing of this distinction that troubled Gorsuch. Why? Because, 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.” And so, he insisted, “discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.”

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?”

Religion’s license to harm?

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 also recently confirmed the extent to which he would protect religious activity in a May 30th Supreme Court ruling. In this instance, SCOTUS ruled 5-4 that, in the midst of the COVID-19 pandemic, churches can be required to abide by states’ orders that limit both religious and secular activities when such limits are imposed to safeguard public health. Gorsuch dissented. That is, he advocated giving an exception to churches and other religious entities so they could hold services for large gatherings, even though empirical data showed such gatherings can be dangerous vectors for the novel coronavirus. Once again, he indicated he would protect religious activity that could clearly harm others.

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 not as personal immorality but as a disregard for rules or legal restraint. He noted: “Liberty may be endangered by the abuse of liberty.” In a post-presidency Detached Memorandum, Madison issued cautions that church-state separation protocols were not being adequately adhered to under the First Amendment, and he particularly 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 [and therefore 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.

SCOTUS dissenters got it right

In their Espinoza dissents, Justices Stephen Breyer and Sonia Sotomayor exhibited clearer originalist bona fides 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 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.”

On protecting religious activity

In a different SCOTUS dissent only a few days later, Sotomayor also got it right as far as when religious activity can be properly subject to limitations. On July 8, 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.

Back to the Lady of Guadalupe decision on ministerial exceptions, dissenting Justice Sotomayor pointed out that “the 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.” (When the teachers at the heart of the Guadalupe court case were let go by the school, they were not given a religious-based decision for their terminations. Still, the school relied on the “ministerial exception” concept/argument to defend its actions.)

“Grave consequences”

Sotomayor referenced an earlier court case that had set certain limits on ministerial claims, calling it a “well-rounded approach [that] ensured that a church could not categorically disregard generally applicable antidiscrimination laws for nonreligious reasons.” But the SCOTUS majority in Guadalupe felt unbound by such limits. Justice Clarence Thomas issued a separate concurring opinion, 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.”

She went on: “As a result, the Court absolves religious institutions of any animus completely irrelevant to their religious beliefs or practices and all but forbids courts to inquire further about whether the employee is in fact a leader of the religion.”

“Pause for a moment on the Court’s conclusion,” she wrote: “Even if the teachers were not Catholic [as they were in the Guadalupe case], and even if they were forbidden to participate in the church’s sacramental worship, they would nonetheless be ‘ministers’ of the Catholic faith simply because of their supervisory role over students in a religious school. That stretches the law and logic past their breaking points.”

“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 coaches, camp counselors, nurses, social service workers, in-house lawyers, media relations personnel, and many 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. Recently, this Court has lamented a perceived ‘discrimination against religion’ [in the Espinoza case]. Yet here it swings the pendulum in the extreme opposite direction, 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

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.”

Former Supreme Court justice clerk and church-state scholar Marci Hamilton, in a book discussing what she sees as excess deference to religion, wrote that the documented thinking of the Founders should “put

to rest the pervasive—but misguided—belief that religious liberty at the time of the Framing meant that religious entities were superior to the law.”

In the Supreme Court’s first-ever free exercise case, Reynolds v. United States in 1878, the Court articulated clearly that absolute freedom of conscience does not extend to absolute freedom of conduct. (Gorsuch, take note.) An excerpt from the decision reads: “Can a man excuse his practices…because of his religious belief? [To] permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself.”

Marci Hamilton adds that “Free exercise theories too often have focused on religious entities by themselves, as though their well-being or their liberty alone is an appropriate proxy for the general public good. This focus…is myopic and antidemocratic.”

Whether it’s tax funding for religious entities or allowing harm to others in religion’s name, the original intents of the Founders are there to see for anyone willing to look. The Founders decried such actions. 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, in an overly broad deference to religion that regularly breaches the church-state wall.

When they do so the result is, as Justice Sotomayor put it, profoundly unfair, especially to the millions who do not share the faith or faiths deferred to.