The Corner

Law & the Courts

Gorsuch, Scalia, and Religious Liberty

Nathan Diament tries to show that Neil Gorsuch is a more reliable protector of religious liberty than the late Justice Antonin Scalia was, but he doesn’t even show that they differ on any issue related to religious liberty.

Scalia wrote a majority opinion denying that the Constitution compels judges to order governments to exempt religious believers from laws that impose a burden on their faiths. Congress then enacted a law telling judges to grant such exemptions (under certain circumstances). Diament points to instances in which Judge Gorsuch applied this law as though those instances suggest a conflict with Scalia. They don’t.

Diament writes:

What comes through in these opinions [written by Judge Gorsuch] is a recognition that seems to have eluded Scalia in 1990: The law is meant to be a bulwark against the infringement—whether by government or other powerful entities—upon a person’s religious conscience and practices. It is not enough to allow Americans to believe as they wish; they must also be able, generally, to act in conformity with their beliefs.

If by “the law” we mean the Religious Freedom Restoration Act enacted in 1993, then it’s true that the law is exactly the kind of bulwark Diament says it is. But Justice Scalia can’t be faulted for refusing to apply it before it existed. If, on the other hand, by “the law” he means the First Amendment, he has offered no evidence that Judge Gorsuch views it any differently than Scalia did.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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