Supreme Mistake

Americans United Says Judge Neil Gorsuch Shouldn't Be Elevated To The Nation's Highest Court

Federal appeals court judge Neil Gorsuch doesn’t see a problem with Ten Command­ments displays on cour­t­house lawns.

Although the Decalogue springs from the Old Testament book of Exodus, which recounts how God personally handed the list to Moses, Gorsuch doesn’t consider it to be very religious.

Several of the commandments deal with how God is to be worshiped, but to Gorsuch, the commandments aren’t “just religious” and could still constitutionally be displayed to convey a “secular moral message.”

Gorsuch made the comments in his dissent to a 2009 case Green v. Haskell County Board of Commissioners from Oklahoma. His cavalier dismissal of the church-state implications of displaying a religious code on government property is just one reason why Americans United is opposing Gorsuch’s nomination to the U.S. Supreme Court.

President Donald J. Trump tapped Gorsuch, currently a judge on the 10th U.S. Circuit Court of Appeals, Jan. 31 to take the seat left open since the February 2016 death of Justice Antonin Scalia. Americans United, which researched Gorsuch’s record in the days leading up to his nomination, was quick to object.

“Judge Gorsuch’s one-sided view of religious freedom is dangerous. He has even suggested that the government should be able to endorse religion – a position that would radically change constitutional law,” said Barry W. Lynn, executive director of Americans United. “His rulings on church-state relations clash with what our country needs and wants.”

Research by Americans United’s Legal Department found that aside from the Oklahoma case, Gorsuch also backed sectarian displays on government property in American Atheists v. Davenport. The 2011 case challenged a practice of memorializing fallen Utah Highway Patrol officers by erecting 12-foot-tall crosses bearing the Highway Patrol’s symbol along the side of the road.

Gorsuch contended that the Highway Patrol could allow a non-profit group to erect the crosses on public property. In his dissent, he asserted that crosses, the preeminent symbol of Christianity, don’t promote Chris­tianity. He went on to question whether it should even be unconstitutional for the government to endorse religion.

Americans United also expressed concern over Gorsuch’s dissent in a case dealing with contraceptives.

In Little Sisters of the Poor v. Burwell, non-profit organizations challenged a federal policy that allowed them to opt out of providing insurance coverage for birth control in employee health care plans.

Under the Affordable Care Act, employers are expected to make birth control available at no cost because it is an important part of women’s health. Houses of worship and religious groups are exempt from this mandate, but some non-profits demanded an exemption too. 

The non-profits were offered an accommodation. All they had to do was state their objection in writing, and the government would arrange for a third party to pay for and provide the coverage instead. Some groups insisted that the mere act of requesting the accommodation violated their religious freedom.

A majority of judges on the 10th Circuit rejected this claim, but Gorsuch sided with the dissenters in arguing that even filling out a form to get the accommodation was a substantial burden on religious freedom.

Americans United said it’s dangerous to allow Gorsuch to bring these extreme views to the high court.

“Our nation needs a Supreme Court justice who respects real religious freedom and appreciates the role church-state separation plays in protecting the rights of all Americans, religious and non-religious,” said Lynn. “Gorsuch is not likely to be that justice. The Senate should reject his nomination.”

Visit www.au.org for more information about AU’s opposition to the Gorsuch nomination.