Does Religious Liberty Have a Friend in soon-to-be Justice Gorsuch?

Written by Noel W. Sterett

When it comes to religious liberty, America has long had the best laws. The First Amendment to the United States Constitution succinctly and powerfully states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Many state constitutions contain even stronger protections for religious liberty and recognize the God of the Bible as the foundation of good governance and the source of our liberty. On top of constitutional protections, Congress and twenty-one states have passed Religious Freedom Restoration Acts in order to ensure broad protections for religious freedom.

But as we all know, laws do not enforce themselves. They are subject to judicial interpretation, and religious liberty interests are often weighed against other interests—interests which judges may find more important. For example, all nine judges on the Washington Supreme Court just ruled that the state can punish a 72 year old florist for refusing to participate in and celebrate a religious ceremony that is contrary to her faith. Her freedoms of speech and religion, they ruled, must take a back seat to the State’s interest in ensuring that gay couples can compel whomever they’d like to participate in the celebration of their wedding ceremony or be threatened by the State with the loss of their business and financial ruin. Decisions like this one underscore what is at stake when we consider judicial nominations—particularly to the highest courts in the land.

Which brings us to the nomination of Neil Gorsuch. What can we tell from the religious liberty cases he has decided? Thankfully, Judge Gorsuch has made our job much easier by telling the Senate what he considers to be “the 10 most significant cases over which [he] presided.” Tellingly, on Judge Gorsuch’s own list two of the six civil cases he mentions were religious liberty cases in which he wrote to uphold the religious liberty of the plaintiffs—Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) and Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).

In Yellowbear, Judge Gorsuch cogently analyzed Mauck & Baker’s favorite statute, the Religious Land Use & Institutionalized Persons Act, and held that the prison could not forbid Mr. Yellowbear, the prisoner, from using a sweat lodge for prayer. The prison did not have sufficient evidence to demonstrate a compelling reason for denying him the religious use of the sweat lodge. Aside from being very well written, Judge Gorsuch’s opinion is remarkable for no reason other than its simple adherence to the provisions of the broad and strong religious freedom protections in the law. He did not give undue deference to the prison or let the prison off the hook for not proving their case. Justice Sotomayor even quoted favorably to the Yellowbear decision in a similar religious liberty case the Supreme Court decided in 2015.

In the more well-known Hobby Lobby case, Judge Gorsuch again wrote an opinion in which he simply applied the clear terms of a religious liberty statute (the Religious Freedom Restoration Act) and explained how the Green family, which owns Hobby Lobby, had suffered harm to their religious freedom on account of the Affordable Care Act’s requirement that they provide for their employee’s insurance coverage for abortifacients. He did not give undue deference or yield to the federal government but applied the law as written.

And in the end, a judge that is committed to “applying the law as written” and recognizes the value of protecting religious freedom is the best friend religious liberty could have in this Constitutional Republic of ours.

Noel Sterett is an attorney at Mauck & Baker, located in downtown Chicago.  This Christian law firm is nationally known for representing churches and religious institutions.   They have over thirty years of legal experience working with churches, businesses, non-profits and individuals.

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