By Matt Hadro
Supreme Court nominee Neil Gorsuch received a strong voice of support Thursday from a lawyer at a major religious liberty firm, who said that he shows a record of consensus building and protecting religious freedom for all.
In addition to ruling on some high profile cases, Gorsuch also defended the religious freedom of religious minorities and prisoners, “some of the most politically powerless in our society,” said Hannah Smith, senior counsel with the Becket Fund for Religious Liberty.
Smith testified about Gorsuch before the Senate Judiciary Committee on Thursday. Gorsuch sits on the Tenth U.S. Circuit Court of Appeals was nominated by President Donald Trump in February to be an associate justice at the U.S. Supreme Court.
In her testimony, Smith pointed to Gorsuch’s ruling in favor of a Native American inmate’s request to have access to a sweat house at his prison, for religious use.
Gorsuch wrote in that Yellowbear case, “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. In this record we can find no reason like that.”
He also was “a remarkable consensus-builder,” Smith added, “in an area of jurisprudence that can be quite contentious.”
Smith said she studied 40 religious freedom cases where Gorsuch, appointed to the Tenth Circuit by President George W. Bush, either wrote an opinion or took a position. She found that “judges appointed by a Democratic president agreed with him in 80 percent of those cases.”
Where Gorsuch authored an opinion in a religious freedom case, she added, he “produced a unanimous decision every single time.”
“My assessment is that Judge Gorsuch, as an associate justice of the Supreme Court, would be a jurist committed to protecting this vital freedom,” Smith said of religious liberty. “None of his religious liberty opinions has ever been reversed by the Supreme Court.”
Judge Gorsuch was a Marshall Scholar who received his doctorate in philosophy from Oxford University, studying under Natural Law scholar John Finnis while there. He clerked for Supreme Court justices Byron White and Anthony Kennedy before working as the principal deputy associate attorney general at the Justice Department under President George W. Bush.
In 2006, President Bush appointed Gorsuch to the Tenth Circuit. In his time on the circuit, he weighed in on major religious freedom cases including those of Hobby Lobby and Little Sisters of the Poor against the Obama administration’s contraceptive mandate.
He was nominated by President Trump on Feb. 1 to fill the vacancy left by the death of Justice Antonin Scalia in 2016. Senate Democrats, however, have announced their intent to hold up his confirmation through filibuster, which would require the votes of 60 senators to override.
Republicans, who hold the majority in the Senate, have not yet announced if they will invoke the “nuclear option” where the Senate rules would be altered to allow for a simple majority vote in the 100-seat chamber rather than a three-fifths, or 60-seat, vote.
Smith, in her testimony on Thursday, also pointed to Gorsuch’s rulings in recent prominent religious freedom cases.
As a judge, Gorsuch wrote a concurrence with the majority decision in favor of Hobby Lobby, and joined the dissent in the case that went against the Little Sisters of the Poor.
Ultimately, the Supreme Court ruled in favor of Hobby Lobby, saying they were exempt from the contraceptive mandate, which “substantially burdened” their religious exercise and was not the “least-restrictive” means of ensuring access to contraceptives.
Later, in the middle of deciding the Little Sisters case, the Court called for the nuns and the government to outline alternative ways of allowing cost-free coverage of contraceptives while respecting the religious freedom of the nuns. After both parties submitted their answers, the Court sent the case back to the lower courts and instructed the parties to come to an agreement.
Ultimately, Smith said, Gorsuch’s record makes it clear that he will uphold the religious liberty of all people.
“His jurisprudence demonstrates an even-handed application of the principle that religious liberty is fundamental to freedom and to human dignity,” she said, “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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