Judge Gorsuch’s record protecting religious liberty for all
Full statement from Becket Senior Counsel Hannah Smith before the Senate Judiciary Committee
Thank you, Mr. Chairman, Senator Feinstein, and members of the Committee. My name is Hannah Smith and I am senior counsel at Becket. Our firm is dedicated to protecting religious liberty for people of all faiths.
As Judge Gorsuch has said, religious liberty law “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.”
To prepare for this hearing, I have reviewed all 40 cases related to religious liberty in which Judge Gorsuch either wrote an opinion or cast a vote.
My assessment is that Judge Gorsuch, as an Associate Justice of the Supreme Court, would be a jurist committed to protecting this vital freedom.
None of his religious liberty opinions has ever been reversed by the Supreme Court.
In fact, every time the Supreme Court reached the merits in one of these cases, it vindicated Judge Gorsuch’s position — even where he had dissented.
An examination of these cases reveals that Judge Gorsuch is also a remarkable consensus builder.
When he sat together with judges who were appointed by a Democratic president, those judges unanimously agreed with him in 80% of those cases.
Overall, he was part of a unanimous decision almost 90% of the time.
When he actually authored the religious liberty decision for the court, he produced a unanimous decision every single time — 100%.
This is a striking record of coalition-building in an area of jurisprudence that can be quite contentious.
I’ll focus my remarks on two areas: first, Judge Gorsuch’s prisoner cases; and second, his decisions involving the Religious Freedom Restoration Act.
First, Judge Gorsuch has demonstrated repeatedly that he applies the law fairly to protect religious minorities and incarcerated persons — some of the most politically powerless in our society.
For example, in Yellowbear v. Lampert, Judge Gorsuch addressed a case where a Native American prisoner had requested access to a sweat lodge for religious purposes.
For a unanimous panel, Judge Gorsuch authored an eloquent opinion in which he said: “While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them — at least in the absence of a compelling reason.” Here, there was no such compelling reason.
Judge Gorsuch recognized that, especially in the prison context, it is “easy for governmental officials with so much power over inmates’ lives to deny capriciously one more liberty to those who have already forfeited so many others.”
Therefore, he wrote that the government must prove it has a good reason for denying religious liberty by offering much more than the government’s “bare say-so.”
On this point, Justice Sonia Sotomayor quoted Yellowbear in her concurrence in another prisoner case, Holt v. Hobbs.
There, a unanimous Supreme Court ruled in favor of a Becket client — a Muslim prisoner who sought to grow a religiously required beard.
In two other prisoner cases, Judge Gorsuch voted in favor of a Muslim prisoner seeking access to religiously required meals, and reversed a lower court decision failing to adequately consider a pro se prisoner’s request for a kosher diet.
Second, regarding his RFRA cases, in Hobby Lobby and Little Sisters of the Poor, the government tried to force religious ministries and family-owned businesses to change their health plans in a way that would violate their faith, or else pay millions of dollars in IRS penalties.
Applying RFRA, Judge Gorsuch voted in favor of the religious objectors, and the Supreme Court vindicated his position in both cases.
Now, some have tried to frame these cases as an irresolvable conflict between religious liberty and women’s rights. Not so.
In the Little Sisters’ case at the Supreme Court, the government conceded that it could still achieve its interest by allowing women to access contraceptive services on the government’s own exchanges, through another government program, or through other insurance plans.
The government’s concessions exposed an important truth: no real conflict existed between contraceptive access and religious liberty.
In closing, Judge Gorsuch has a consistent record of carefully applying the relevant statutory and constitutional provisions as well as governing precedents, without regard to a particular ideological outcome.
His jurisprudence demonstrates an even-handed application of the principle that religious liberty is fundamental to freedom and to human dignity, and that protecting the religious rights of others — even the rights of those with whom we may disagree — ultimately leads to greater protections for all of our rights.
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