There will be a key vote today in the U.S. Senate regarding President Donald J. Trump’s U.S. Supreme Court nominee, Neil Gorsuch.
Today’s vote is a procedural vote – a vote to end cloture – but it could usher in far-reaching consequences. Senate Democrats have enough votes to filibuster Gorsuch, meaning that they could hold up a final vote on Gorsuch’s confirmation. But Republicans hold a majority in the chamber and could choose to invoke the so-called “nuclear option” by changing Senate procedure to allow Gorsuch’s confirmation on a majority vote, rather than the 60 votes required to end a filibuster.
Here’s what we know for sure: Gorsuch’s history as a judge on the 10th U.S. Circuit Court of Appeals, as we’ve noted multiple times, shows that he’s a threat to church-state separation and true religious freedom. That’s why Americans United opposes his nomination to the Supreme Court.
Gorsuch’s performance during his confirmation hearings did not allay our concerns about his dangerously one-sided record on religious freedom. Here’s a recap of why Gorsuch is the wrong pick for the Supreme Court.
Discrimination in the name of religion: Gorsuch was one of the judges who heard the Hobby Lobby case before it went to the Supreme Court. In that case, the 10th Circuit court incorrectly applied the Religious Freedom Restoration Act (RFRA) as justification to grant for-profit corporations an exemption from the Affordable Care Act’s requirement that they provide employees contraception coverage through their healthcare plans. In doing so, Gorsuch’s opinion allowed religious beliefs to be used as an excuse to restrict contraception access for women.
Religious freedom guarantees us the freedom to believe or not, as we see fit. It does not, however, give us the right to use religious beliefs to harm others. In Hobby Lobby, Gorsuch misapplied RFRA, a law intended to protect minority religious expression, and as a result, many women lost important healthcare coverage.
In another case involving contraception access, Little Sisters of the Poor v. Burwell, Gorsuch sided with religious non-profit organizations that argued that an accommodation from the ACA’s contraception coverage requirement violated their religious freedom. This was a simple accommodation, requiring employers to fill out a form stating their religious objections to covering contraception in their health care plan, and yet Gorsuch objected.
Gorsuch’s views signal that he’s likely to undermine true religious freedom in future Supreme Court cases if confirmed.
Gorsuch is the wrong pick for the Supreme Court.
Government-sponsored religious displays: The Constitution says the government can't endorse religion. Gorsuch, however, has questioned this basic principle. In two cases, Gorsuch has shown support for government-sponsored religious displays. In 10th Circuit decisions to strike down the display of religious symbols on government property, Gorsuch has written objections.
In one of those cases, Green v. Haskell County Board of Commissioners, Gorsuch disagreed with a 10th Circuit ruling that a Ten Commandments display on an Oklahoma county’s courthouse lawn violated church-state separation. Gorsuch claimed that the Ten Commandments, which are clearly biblical, can have a “secular moral message.”
In another case, American Atheists v. Davenport, the 10th Circuit ruled that 12-foot-tall crosses memorializing fallen Utah Highway Patrol officers violated the First Amendment. Gorsuch objected and argued that the cross, an exclusively-Christian religious display, didn’t promote religion.
During his confirmation hearings, Gorsuch told U.S. Sen. John Cornyn (R-Texas) that church-state separation “is a very difficult area, doctrinally.”
Religious Discrimination: While this isn’t reflected in his history as a judge, Gorsuch’s confirmation hearing raised concerns about how he would handle discrimination against religious or nonreligious minorities if confirmed, especially under a Trump presidency.
When U.S. Sen. Patrick Leahy (D-Vt.) asked Gorsuch about whether a religious litmus test can be used to limit immigration and mentioned Trump’s Muslim ban as an example, Gorsuch refused to give a clear answer, insisting that this is currently being litigated. It was an easy opportunity for Gorsuch to acknowledge that banning people from the country on the basis of religion betrays the nation’s commitment to religious freedom, but he refused.
Because of the Muslim ban’s threat to religious freedom, AU has been fighting the policy in court. The government is not allowed to express favor or disfavor a certain religion, but Gorsuch didn’t seem too concerned about this during his hearings.
That’s why AU continues fighting Gorsuch’s confirmation every step of the way. More recently, we sent a letter to the Senate this week expressing opposition to his confirmation. You can express opposition to Gorsuch, too, by calling or emailing your senators to vote no on Gorsuch’s confirmation.
Read more about our work fighting against Gorsuch’s confirmation and why he’s the wrong choice for the Supreme Court here.