Thus far there are two unfolding lines of attack on Judge Neil Gorsuch. The first is so intellectually absurd as to be frivolous — that he rules for the wrong people. In other words, the critic ignores the legal reasoning and focuses only on the legal outcome. If a poor person or a person of color loses, the judge is wrong. If a corporation wins, the judge is wrong. Judges are not legislators, however, and critiques that barely even mention (or ignore entirely) applicable legal standards when evaluating case outcomes may sometimes play well on television but prove difficult to sustain in practice. Unless a judge utterly lacks integrity, he or she finds himself ruling against his ideological friends all the time. (Witness the Obama administration’s remarkable number of 9–0 defeats before an ideologically divided Supreme Court.)
The second critique is far more philosophically substantial and goes to the heart of how we define our most fundamental rights. Essentially, a number of legal leftists believe that Judge Gorsuch has entirely too much respect for religious freedom. Writing in Slate, Dahlia Lithwick lays out this view at length. First, she claims that “our current religious liberty jurisprudence . . . is extremely deferential toward religious believers.” She claims that “religious dissenters who seek to be exempted from neutral and generally applicable laws are given the benefit of the doubt, even when others are harmed. Sometimes those harms are not even taken into account.”
Gorsuch agrees with all of this and then some. His record reflects a pattern of systematically privileging the rights of religious believers over those of religious minorities and nonbelievers. It is, of course, vital and important to protect religious dissenters; the First Amendment could not be clearer. But the First Amendment is equally anxious about state establishment of religion, an anxiety Gorsuch is less inclined to share.
In other words, when Judge Gorsuch examines the religious-liberty claims of, say, Hobby Lobby against the regulatory “right” of free contraceptive coverage, applying any preference to the claims of religious litigants is not only improper, but it may even violate the establishment clause.
Yet this fundamentally misunderstands not merely the statutory law at issue but also the history of religious liberty as a constitutional and human right. First, the Religious Freedom Restoration Act (the statute at issue in the Hobby Lobby case) mandated that Judge Gorsuch apply a specific legal test to the case that privileged religious-liberty claims. Had he not applied that test, he would have been disregarding the law he was charged to interpret.
Second, no one should think that all rights exist on equal footing. As our Declaration of Independence acknowledges, we are endowed by our Creator with certain “unalienable rights.” Government doesn’t create those rights. Its role is instead to acknowledge and protect them. While there’s no comprehensive list of unalienable rights, the Bill of Rights is a good place to start. It defines and protects the liberties that were essential to our nation’s founding and indispensable to the protection of a free people.
The Founders appropriately resolved the conflict between fundamental rights and government power. In all but the most compelling circumstances, fundamental rights should prevail.
A “right” to free birth-control pills is not on that list. Nor are numerous other statutory or regulatory rights that governments give and take away at will. In reality, we often use the word “right” to describe what are actually privileges, and it’s entirely appropriate for a court to give deference to an actual human, natural, and constitutional right when it conflicts with a regulatory privilege.
You’ll often see religious-liberty cases wrongly described as if equal rights were in conflict. For example, on college campuses, I’ve litigated cases in which the religious liberty of a student group is said to be in conflict with the “right” of an atheist student to run a Christian group. In other cases, the religious-liberty rights of bakers and florists are said to be in conflict with the alleged “rights” of customers to purchase wedding cakes and floral arrangements from the artist of their choice. Should rights of conscience be on the same footing as acts of college administrators or state regulators? Or should rights of conscience have a built-in advantage, to be overruled only in the most compelling circumstances?
Indeed, this question highlights perhaps Justice Antonin Scalia’s worst judicial decision. In Employment Division v. Smith, he stripped the free-exercise clause of much of its legal potency, wrongly relegating it to second-class status in the Bill of Rights, and setting up much of the regulatory and intellectual confusion that followed. Judge Gorsuch, fortunately, appears to have a much sounder view of religious freedom.
Lithwick uses the term “suffering” to describe the plight of persons who have to pay for their own birth control. But the hyperbole surrounding the Hobby Lobby case demonstrates exactly why religious liberty merits heightened protection: Minority religious views are often unpopular, especially when confronting state programs designed from the ground up to bestow state benefits.
The Founders appropriately resolved the conflict between fundamental rights and government power. In all but the most compelling circumstances, fundamental rights should prevail. This does not mean that asserting a religious-liberty claim means automatic victory. The assertion must be sincere, and even sincere assertions should be overcome when the governmental interests are sufficiently compelling and its action appropriately narrow. But the principle stands: Religious liberty is a right our nation protects, not a right it creates, and it is entirely right and proper for judges to recognize that fundamental moral and constitutional fact.