Gorsuch nomination rumble underscores need for religion writers to understand Constitutional law

Religion reporters need to be knowledgeable on Constitutional law because U.S. federal courts continually handle newsworthy church-and-state dust ups. That is underscored by the partisan rumble over Supreme Court nominee Neil Gorsuch of the Denver-based 10th Circuit Court of Appeals (which will be the proverbial Sunday School picnic compared with the next Supreme Court vacancy.)   

The Left is aggrieved because Gorsuch wrote the circuit opinion favoring Hobby Lobby’s bid for a religious exemption from Obamacare’s mandatory birth-control coverage (the Supreme Court later agreed with him), and joined the court minority that backed similar claims from the Little Sisters of the Poor. A bit of the byplay:

Legal journalist Dahlia Lithwick typifies the critics, saying Gorsuch personifies an “alarming tendency” toward “systematically privileging the rights of religious believers” to “impose their views on others” as though their “faith must not be questioned, or even assessed.”  Evangelical attorney David French responds that in such conflicts a “human, natural, and constitutional right” properly takes priority over “a regulatory privilege.”

On Hobby Lobby, Planned Parenthood’s head protests that Gorsuch believes “bosses should be able to decide whether or not women should be able to get birth-control coverage.” A National Review editorial calls that a distortion because (1) the ruling affects only narrow cases that involve  the federal Religious Freedom Restoration Act, and (2) in any case employers cannot prevent employees from obtaining coverage.

Gorsuch reminded senators of two cases where he supported the religious liberty of non-Christians. He wrote the opinion backing a Native American prisoner seeking access to a sweat lodge, and filed a concurring opinion supporting a Muslim prisoner’s need for halal meals.

The nominee also defended his 2006 book “The Future of Assisted Suicide and Euthanasia,” telling senators he’s concerned about what legalization “might mean for the least amongst us, the most vulnerable, the disabled, the elderly, who might be pressured into accepting an early death because it’s a cheaper option.”

Notre Dame University law professor Richard W. Garnett, who favors Gorsuch’s outlook and laments newspapers’ innovation of putting scare-quotes around the phrase “religious freedom,”  posted a primer that's useful for journalists. He puts religion disputes into four categories:

(1) Government money and other support for “secular” social activities of religious organizations, especially schools. Garnett welcomes courts’ recent openness to aid when programs are religiously “neutral.”

(2) As with Hobby Lobby and the Little Sisters of the Poor, claims of exemption from government requirements that burden religious belief. That’s the issue defined in the federal religious-freedom law that Gorsuch relied upon.  

(3) Presence of religious symbols and speech in the public square, e.g. town council prayers or park Nativity displays. Rulings are “all over the map,” but ceremonial expressions are often permitted. Gorsuch seems open to such things if they’re not coercive.

(4) A grab-bag of situations where government gets entangled in religious doctrines and disciplines. On these, Garnett suspects Gorsuch would recognize that liberty for religious groups is “not a luxury good” but “foundational to our constitutional order and democratic aspirations.”

There’s important constitutional reasoning on a different issue in the Christian Century magazine. Douglas Laycock of the University of Virginia Law School (who stands atop a reporter’s list of church-state experts) pondered  the 1954 “Johnson amendment.” Named for president-to-be Lyndon who sponsored it, this law says exempt groups under section 501(c)(3) of the tax code, both religious and non-religious, cannot implicitly or explicitly endorse or oppose a political candidate. The magazine itself temporarily lost exemption for endorsing Johnson over Barry Goldwater in 1964.

Some “religious right” activists are pushing to repeal the law. Laycock makes a careful distinction here. He opposes exempt groups spending money on campaigns.  But he contends that the restriction on what preachers can say has no  financial impact and should be scuttled as an unconstitutional violation of freedom.

 (Footnotes: As a Coloradan, Gorsuch would add geographical diversity to the Supreme Court’s membership, but not alter the monopoly of Ivy League law school graduates. He’s an active Episcopal churchgoer who’d break up a court with only Catholic and Jewish justices, though CNN’s Daniel Burke reports this onetime Catholic may never have formally converted to the Episcopal Church.

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