Neil Gorsuch’s Limited View of Religious Freedom

Yuri Gripas / Reuters

As the Judiciary Committee hearings for Judge Neil Gorsuch begin, I retain my impression that he is in his way a splendid fellow, intelligent and hard working, and, as near as I can tell, devoid of the streak of jack-in-office meanness that mars the legacy of his predecessor, Antonin Scalia.

But I also wonder whether he has a blind spot in an area that should concern Americans—religious freedom. Consider his separate opinion in the Tenth Circuit’s opinion in Burwell v. Hobby Lobby Stores. Remember the issue in Hobby Lobby. Under the Affordable Care Act, employers are required to provide a certain level of health insurance benefits to full-time employees. One of those benefits, under Health and Human Services regulations, is coverage of all medically approved methods of contraception.

The decision of whether to use contraception, and, if so, which method to use, remains with the employee. It is a confidential medical decision. By law neither the employer or anyone else can inquire about it. Nonetheless, the owners of the Hobby Lobby corporation objected on religious reasons to certain forms of contraception, and did not wish to provide insurance that covered them. They challenged the requirement of coverage as a “substantial burden” on their “free exercise of religion.”

The Tenth Circuit held that under RFRA the owners had a right to refuse to provide the coverage; Gorsuch wrote a separate concurrence describing the spiritual issue at stake:

All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Greens [owners of Hobby Lobby Stores] are among those who seek guidance from their faith on these questions.

It is characteristically literate and philosophically sophisticated. Indeed, the discussion of “complicity” would be fine as far as it goes—had it been followed by any sign of recognition that the employees of Hobby Lobby stores who wish access to contraception are following their own consciences and not bound by their employers’. They were entitled by statute to the benefits, and entitled under the Constitution to use medically approved contraception, regardless of what others think.

In short, there is no legal scheme in which they can be constitutionally branded as “wrongdoers.” Beyond that, the record gives no reason to doubt that their conduct has religious and spiritual roots as important to them as the storeowners’ evangelical Christian faith is to them. Gorsuch, however, simply privileges one set of beliefs, and wipes out the others.

This, I think, embodies a persistent misconception about “religious freedom.” Some beliefs are religious, and protected; other beliefs on the very same issues are secular, and should be brushed aside.

No one can be against the concept of “religious freedom.” No one questions, either, that the concept extends beyond “purely” religious matters into economic and public life. But mapping that extension takes careful thought, and wherever lines are drawn, some people will feel they have lost. That’s because in a lot of areas—anti-discrimination law, for example, or medical care, to name just two—religious claims involve the rights of many different people, each of whom has a claim to freedom of conscience. Those claims don’t depend on formal labels or church membership; and they all must be weighed in the balance. Balancing is hard, subjective, and ultimately often unsatisfying; yet balancing is the soul of constitutional law.

In the United States, whose culture and history has been shaped by Christianity, it’s easy to skip the balancing stage. Many people assume that “religious freedom” centers around familiar “religious” beliefs—Christianity, in other words—as opposed to those of religious outsiders, whether they are Mormons, Muslims, or atheists.

It’s a persistent misapprehension.

Right now, a wide variety of measures are pending in front of state legislatures that will allow employers and even government officials to discriminate against same-sex couples. A proposed federal statute, the First Amendment Defense Act was introduced in the last Congress. Candidate Donald Trump promised during the campaign to sign it. The act would protect any person against losing accreditation, tax benefits, or a federal contract “wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”

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SOURCE: The Atlantic
Garrett Epps