In the Hobby Lobby case, he sided with corporations that argued they can use religion as an excuse to deny their employees insurance coverage for birth control. And he’s okayed government promotion of religion. He’s the wrong choice for the Supreme Court.
AU's Statement On Gorsuch's Confirmation
AU's April 4 Letter To The Senate Opposing Gorsuch's Confirmation
AU's Continuing Concerns Following Gorsuch's Confirmation Hearing
AU's Concerns About Gorsuch's Record In Advance Of His Confirmation Hearing
AU's March 15 Letter To the Senate Judiciary Committee Opposing Gorsuch's Confirmation
Reasons Why We Oppose Gorsuch’s Nomination
Quotes From AU Executive Director Barry Lynn
Cases Of Interest
Sample Letter To The Editor
The Supreme Court is the final arbiter of our laws, and its rulings can dramatically impact the lives and rights of all Americans. Gorsuch’s decade-long record on the federal bench, as well as his writings, speeches, and activities throughout his career, demonstrate he is a judge who is opposed to religious freedom. For this reason, Americans United for Separation of Church and State, representing over 120,000 members and supporters across the country, strongly opposes the nomination of Neil Gorsuch as Supreme Court Justice.
- Gorsuch won’t check President Trump, and he won’t stand up for our rights. The Supreme Court is our bulwark against a strong-arm administration, a check on abuses and excesses. At a time when our communities are under attack and our democratic institutions at risk, it’s more important than ever to have a Supreme Court that will safeguard our rights.
- Gorsuch was hand-picked by far-right organizations. President Trump allowed right-wing organizations with a political agenda out of step with the values of most Americans to handpick Gorsuch. These groups expect him to advance their theocratic agenda.
- Gorsuch’s views on religious freedom are too extreme. Under our Constitution, we are free to adopt the religion of our choice or reject them all. Faith is a personal, private matter, not one with which the government should interfere. Gorsuch is untroubled by a high degree of government meddling in religious affairs and this makes him unfit for a seat on our nation’s highest court. He frequently dissents from decisions, showing he is out of the mainstream of legal thought.
- Gorsuch’s rulings undermine the Establishment Clause and church-state separation. As a judge currently serving on the U.S. Court of Appeals for the Tenth Circuit, Gorsuch’s record demonstrates he has not been willing to uphold the principles of true religious freedom, including the separation of church and state.
- Gorsuch would tip the balance of the court on key religious freedom issues. If confirmed to the Supreme Court, which is now evenly split on many critical religious freedom issues, Judge Gorsuch would tip the balance in a direction that would undermine many of our core rights and legal protections.
- Gorsuch would roll back the clock on women’s health and LGBTQ rights. Gorsuch ruled in favor of the idea that for-profit corporations can exercise religion to limit women’s access to contraception. Gorsuch has also been highly critical of LGBTQ advocates and others who turn to the courts to protect their constitutional rights.
“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 Lynn. “His rulings on church-state relations clash with what our country needs and wants.”
"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.”
“Neil Gorsuch has demonstrated that he does not respect the constitutional principle of the separation of church and state, which is the foundation of religious freedom in America. I am gravely concerned he’ll vote to erode that principle and put one of our nation’s most essential liberties at risk.”
Here’s a look at some of the cases in which Gorsuch, a judge who currently serves on the U.S. Court of Appeals for the Tenth Circuit, demonstrated his disregard for the Constitution’s protections for religious freedom.
- Contraception Coverage Cases: Under Affordable Care Act regulations, most health-insurance plans, including plans provided by employers, must cover all FDA-approved methods of contraception without a co-pay. This policy was adopted to improve access to birth control, which is vital to women’s health and equality.
In the now-infamous Burwell v. Hobby Lobby Stores case, for-profit corporations argued that providing such coverage for their employees violated their owners’ religious freedom. Gorsuch was one of the judges who heard the case before it went to the Supreme Court. He and his colleagues sided with the corporations, saying that the businesses must receive a religious exemption from the coverage requirement. The Constitution prohibits the government from granting religious exemptions if they would result in real harm to others, yet the majority’s opinion ignored this important limitation. At the same time, the opinion trivialized the real harm women would face without insurance coverage for vital medical services. Subsequently, the Supreme Court also ruled in favor of the corporations.
In Little Sisters of the Poor v. Burwell, non-profit organizations challenged the accommodation created for employers with religious objections to the contraception coverage rule (this was one of many cases filed across the country). Under the accommodation, an entity has only to state its objection in writing, and the government will arrange for a third party to pay for and provide the coverage instead. Remarkably, many entities have challenged this accommodation in court, insisting that the mere act of requesting it violates their religious freedom. Ultimately, they want to block their employees and students from receiving birth control coverage from third-party insurance companies, even though the religious groups do not have to pay for it or otherwise provide it.
A majority of the 10th Circuit rejected this spurious claim. But when the 10th Circuit decided not to rehear the case, Gorsuch joined a dissenting opinion contending that the accommodation substantially burdened the non-profits’ religious practice, essentially because the non-profits said so.
Religious freedom guarantees us the freedom to believe or not, as we see fit. It does not, however, give us the right to act on our beliefs in ways that use the power of government to harm others. People unwilling to accept advances in LGBTQ rights, women’s equality, and reproductive health want to redefine religious freedom so that they can use their religious beliefs as an excuse to deny health care, refuse to provide services, and disobey laws protecting Americans from discrimination and abuse. Gorsuch’s positions in the contraception cases signal that he may let them.
- Government-Sponsored Religious Displays: In two cases, Gorsuch has written opinions objecting to 10th Circuit decisions to strike down government-sponsored religious displays. True religious freedom means that the government cannot promote or endorse religion, let alone impose religion on anyone. Gorsuch’s views in these cases, however, show that this fundamental principle of religious freedom may be at stake.
In Green v. Haskell County Board of Commissioners, the Tenth Circuit struck down a Ten Commandments display on an Oklahoma county’s courthouse lawn. Judge Gorsuch maintained that the Commandments, sacred religious text for Jews and Christians, are not “just religious” and thus, could be displayed without violating the Constitution. In American Atheists v. Davenport, the Tenth Circuit held that the practice of memorializing fallen Utah Highway Patrol officers by erecting 12-foot-tall crosses bearing the Highway Patrol’s symbol on the side of state highways violated the Constitution. Judge Gorsuch, however, contended that these preeminent symbols of Christianity did not actually promote Christianity. What’s even more troubling is that Gorsuch’s opinion questioned whether it should even be unconstitutional for governmental bodies to endorse religion.
A number of other current Supreme Court justices have likewise suggested, contrary to settled constitutional law, that governmental bodies ought to be able to promote or endorse religion, and that the Constitution should do nothing more than prohibit the government from actively coercing people to participate in or support religion. If Gorsuch joins the Supreme Court, a majority of the justices could adopt that extreme view. And that could provide a green light for courts to bulldoze the wall that separates church and state. Governmental officials may get much free rein not only to erect religious displays on public property but also to promote religion in a wide range of other arenas, including in the public schools, at government-sponsored events and by funding religious institutions.