Eight of the nine Supreme Court justices are Catholics or Jews—groups historically victimized by religious discrimination. Yet the court’s emerging leader in defending religious freedom is its only mainline Protestant.
Some see Neil Gorsuch, nominated by former President Donald Trump to succeed the late Justice Antonin Scalia, as Scalia’s natural successor: Both were or are highly intelligent, very well educated, generally (but not purely) originalist in constitutional interpretation, and eloquent writers. But Gorsuch, the Episcopalian, is showing himself even more dedicated to religious freedom than Scalia, the committed Catholic.
No doubt there were earlier indications of this side of Gorsuch, but they have come to the fore in the current pandemic. It’s a good time for that side to show itself, because in public emergencies, constitutional rights often are shunted aside. Indeed, in this emergency the federal judiciary’s record of defending constitutional rights has been mixed at best.
But Gorsuch’s record has been anything but mixed. When his fellow justices defend religious liberty only tepidly, Gorsuch’s concurring opinions stake out stronger positions. When his colleagues do not defend religious liberty at all, he dissents.
Gorsuch opposes anti-religious pandemic orders
On Nov. 25, 2020, the justices issued their opinion in Roman Catholic Diocese of Brooklyn v. Cuomo. The Diocese and an Orthodox Jewish congregation had sued to void then-New York Gov. Andrew Cuomo’s severe capacity restrictions on houses of worship. The plaintiffs won, but only by a bare 5–4 majority.
Gorsuch penned a concurring opinion pointing out how Cuomo’s order—like those in many other states—both discriminated against communities of faith and privileged secularism. Here is a sample:
“At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers ‘essential.’ And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?…Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
In another part of his opinion, Gorsuch took on the judiciary’s uncritical reliance on Jacobson v. Massachusetts. Jacobson is the 1905 Supreme Court mandatory vaccination case that many cite improperly to justify dictatorial pandemic powers.
Gorsuch defends religions favoring traditional marriage
On June 17, 2021, the Supreme Court issued Fulton v. Philadelphia. This was not a pandemic case. Rather, religious organizations had sued the City of Philadelphia over a policy of discriminating against religions that reject same-sex marriage. The justices unanimously struck down the policy.
However, the court’s decision in Fulton was a flimsy one, because it allowed the city to continue discriminating merely by changing one of its paper forms. Gorsuch’s concurring opinion (joined by Justices Thomas and Alito) pointed out how flimsy the court’s decision was. Gorsuch also called for overruling Employment Division v. Smith, a 1990 precedent he believes insufficiently protects religious freedom. Scalia had written the opinion for the court in Smith. Gorsuch’s concurrence was gracious enough to cite one of Scalia’s writings even while asking the court to overrule Scalia.
Gorsuch’s Fulton concurrence, like many of his opinions, featured some witticisms, such as “Trailblazing through the Philadelphia city code turns out to be no walk in the park”… “playing along with this statutory shell game.”
Gorsuch pushes back against biased vax mandate
In John Does 1-3 v. Mills, issued on Oct. 29, SCOTUS refused to review a Maine state order that health care workers be vaccinated, irrespective of religious objections. The objections were based on the fact that all three vaccines were developed using material from aborted children. (I suspect the vaccines’ connection to abortion is one reason so many “progressives” want everyone vaccinated—so that everyone’s complicit.)
Gorsuch, again joined by Thomas and Alito, dissented. He contended that Maine’s order flunked even the standard set by Scalia in the Smith case. He finished his dissent this way:
“This case presents an important constitutional question, a serious error, and an irreparable injury. Where many other States have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention. I would grant relief.”
Gorsuch calls out New York governor’s bigotry
New York’s new governor, Kathy Hochul, has proved even less tolerant than her immediate predecessor. Cuomo had planned to include a religious exemption in his order mandating vaccinations for health care workers, but Hochul deleted it. The final order permitted exemptions for medical reasons but not for religious reasons. Furthermore, Hochul amended New York regulations so that any fired religious dissenter would be denied unemployment benefits as well.
The case of Dr. A v. Hochul challenged these actions. But on Dec. 13, SCOTUS declined to intervene.
Thomas, Alito, and Gorsuch all dissented, saying they would have taken the case. Gorsuch’s dissent described the bigotry motivating Hochul’s order:
“Governor Hochul acknowledged that ‘we left off [the religious exemption] in our regulations intentionally.’ … Asked why, the Governor answered that there is no ‘sanctioned religious exemption from any organized religion’ and that organized religions are ‘encouraging the opposite.’… Apparently contemplating Catholics who object to receiving a vaccine, Governor Hochul added that ‘everybody from the Pope on down is encouraging people to get vaccinated.’…Speaking to a different audience, the Governor elaborated: ‘How can you believe that God would give a vaccine that would cause you harm? That is not truth. Those are just lies out there on social media.’…
…Hochul apparently doesn’t know that fallible man, not infallible God, made the vaccine. Gorsuch continued: “The day before the mandate went into effect, Governor Hochul again expressed her view that religious objections to COVID–19 vaccines are theologically flawed: ‘All of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are.'”
Under the Supreme Court’s precedents, Hochul’s deliberate targeting of a religious minority should have been grounds for immediately quashing her order. Gorsuch commented on the court’s abdication of responsibility:
‘The Free Exercise Clause [of the First Amendment] protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly in ‘the performance of (or abstention from) physical acts.’ …
…Today, we do not just fail the applicants. We fail ourselves. It is among our Nation’s proudest boasts that, ‘[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in [matters of] religion.’ (West Virginia State Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943)). In this country, ‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit … protection.’ (Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707, 714 (1981)). Nor is the free exercise of religion ‘limited to beliefs which are shared by all of the members of a religious sect.’ … Millions have fled to this country to escape persecution for their unpopular or unorthodox religious beliefs, attracted by America’s promise that ‘[e]very citizen here is in his own country.’…
…As today’s case shows, however, sometimes our promises outrun our actions. Sometimes dissenting religious beliefs can seem strange and bewildering. In times of crisis, this puzzlement can evolve into fear and anger. It seems Governor Hochul’s thinking has followed this trajectory, and I suspect she is far from alone.”
After recounting how the Supreme Court failed to protect religious freedom in a 1940 case, only to reverse itself in 1943, Gorsuch added:
“Today, our Nation faces not a world war but a pandemic. Like wars, though, pandemics often produce demanding new social rules aimed at protecting collective interests—and with those rules can come fear and anger at individuals unable to conform for religious reasons. If cases like [the 1940 decision] bear any good, it is in their cautionary tale. They remind us that, in the end, it is always the failure to defend the Constitution’s promises that leads to this Court’s greatest regrets. They remind us, too, that in America, freedom to differ is not supposed to be ‘limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.’ … The test of this Court’s substance lies in its willingness to defend more than the shadow of freedom in the trying times, not just the easy ones.’ …
…Still, it seems the old lessons are hard ones. … But how many more reminders do we need that ‘the Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis … may suggest?'”
Yes, “the old lessons are the hard ones.” Time will vindicate Justice Gorsuch. And his dissent in Dr. A v. Hochul will be recognized as a masterpiece.
Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver. A version of this article originally appeared in The Epoch Times.
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