Judge Gorsuch and the Wild, Wild West of Religious Liberty

A solid defender of religious expression, the SCOTUS nominee also knows its limits.

This post originally appeared on National Law Journal.

The days of the Wild West are long gone, but reading through some of the decisions of President Donald Trump’s nominee for the U.S. Supreme Court, Judge Neil Gorsuch, you might think they were back. The cases — full of outlaws and colorful scenes that might show up in a Quentin Tarantino film — make for entertaining reading.

But perhaps the most interesting thing about these cases is what they tell us about Gorsuch’s approach to the “little cases.” And on that score, they demonstrate that Gorsuch has a thoughtful and balanced approach to the law of religious liberty.

Gorsuch serves on the U.S. Court of Appeals for the Tenth Circuit, which hears cases from much of the Old West: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

NOT JUST ‘HOBBY LOBBY’

During his decade on the court, Gorsuch has had a surprising number of cases involving religious liberty. The most famous, of course, are the Hobby Lobby and Little Sisters of the Poor cases, where Gorsuch voted to uphold religious freedom against government interference, a position affirmed by the Supreme Court.

Those cases will dominate much of the debate concerning Gorsuch’s nomination. But some of Gorsuch’s lesser-known religious liberty cases also provide insight into his judicial philosophy.

Take United States v. Medina-Copete, for example. In that case, the defendants were driving a borrowed pickup truck through New Mexico when they were stopped by police. During the stop, the passenger nervously began to recite a prayer to Santa Muerte (Holy Death), a Mexican folk deity that appears as a skeleton dressed in women’s clothing.

The police officers then searched the vehicle, where they found hidden methamphetamines. At trial, the defendants said they were “blind mules” and did not know that their friend’s car had drugs stashed in it.

The government countered by putting forward an expert witness who said that because Santa Muerte is associated with drug traffickers, praying to Santa Muerte proved that the defendants must have known about the drugs. The jury convicted the defendants, who then appealed.

When the case reached Gorsuch’s court, the question was whether the expert’s claim that the prayer to Santa Muerte proved a connection to drug trafficking was reasonable or whether it amounted to “psychobabble” that treated worship of Santa Muerte as “heretical.” Gorsuch and his fellow judges found the expert’s testimony to be unreliable, saying that “A criminal trial is no place for a theological disputation on sainthood and the power of prayer.” They sent the case back to district court.

The decision shows that Gorsuch agrees that the government cannot involve itself in theological disputes — such as whether Santa Muerte is “heretical” — because that violates the principle that church and state should remain separate.

MARIJUANA AS A DEITY?

The flip side of the decision in Medina-Copete was Gorsuch’s opinion in United States v. Quaintance. In that case, an Arizona couple were trying to raise money to make bail for Mary Quaintance’s brother, who had been arrested for transporting marijuana. They decided to make his bail by selling marijuana themselves.

At their rendezvous in the New Mexico desert with “backpack runners” from Mexico, the Border Patrol moved in for a bust, finding 172 pounds of marijuana in the Quaintances’ possession.

Caught red-handed, the Quaintances defended themselves by arguing that their drug-running was part of the religious activities of the “Church of Cognizance,” which they had founded.

The Church of Cognizance, according to the defendants, teaches that marijuana is both a deity and sacrament.

The Quaintances handed out church membership certificates as part of their drug transactions.

Their defense in court was that they should be exempted from the drug laws because the Religious Freedom Restoration Act — the same law at issue in Hobby Lobby and Little Sisters — protected them from prosecution.

Gorsuch wrote a detailed opinion for the Tenth Circuit affirming the lower court’s decision that the Quaintances were insincere, and were merely using the church as a front for a drug operation.

This decision shows that Gorsuch, though clearly a defender of religious liberty, also understands its limits. In particular, the Quaintance decision shows his understanding that insincere claims must be rejected if the law of religious freedom is to remain robust.

Gorsuch’s other religion opinions are also a wealth of wisdom. In Abdulsaheeb v. Calbone, he wrote in favor of a Muslim prisoner seeking a halal diet. And in Yellowbear v. Lampert, he said that the government could not discriminate against a member of the Arapaho tribe who wished to practice his Native American religion during his sentence in a Colorado prison. U.S. Supreme Court Justice Sonia Sotomayor later highlighted this decision in a Muslim religious liberty case, Holt v. Hobbs, at the Supreme Court.

In all of his religion cases — well-known or not — Gorsuch has demonstrated both a commitment to and a deep understanding of the fundamental American principle of “religious liberty for all.”

In an increasingly diverse country, we need judges like that.

Eric Rassbach (@ericrassbach) is deputy general counsel at Becket Law.

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