Neil Gorsuch

U.S. Supreme Court launched a new church-and-state era last week. Follow-ups, please.

U.S. Supreme Court launched a new church-and-state era last week. Follow-ups, please.

“Of making many books there is no end,” complains the weary author of the Bible’s Book of Ecclesiastes. And there’s no end to lawyers making many lawsuits trying to learn what the U.S. Supreme Court thinks the Constitution means when it forbids “an establishment of religion” by government.

Journalists should provide follow-up analysis of a new era in “separation of church and state” launched June 20 with the Court’s decision to allow a century-old, 40-foot cross at a public war memorial in Maryland. Importantly, we can now assess new Justices Neil Gorsuch and Brett Kavanaugh, who filed separate opinions supporting the cross display.

Actually, the nine justices produced a patchwork of eight separate opinions, which demonstrates how unstable and confused church-state law is.

Ask your sources, but The Guy figures the Court lineup now has only two flat-out separationists, Ruth Bader Ginsburg (age 86) and Sonia Sotomayor. While Samuel Alito managed to assemble five votes for part of his opinion, his four fellow conservative justices are unable to unite on a legal theory. Stephen Breyer and Elena Kagan seem caught halfway between the two sides.

Federal courts have long followed the “Lemon test,” from a 1971 Court ruling of that name that outlawed public aid for secular coursework at religious schools. Chief Justice Warren Burger’s opinion devised three requirements to avoid “establishment,” that a law have a “secular” purpose, “neither advances nor inhibits religion” and doesn’t foster “excessive government entanglement with religion.”

Kavanaugh declared that the Court has now effectively abandoned Lemon in favor of a “history and tradition test,” which permits some cherished religious symbols and speech in government venues despite the “genuine and important” concern raised by dissenters.

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Two prominent namers of names inside DC Beltway warrant in-depth religion profiles

Two prominent namers of names inside DC Beltway warrant in-depth religion profiles

Justice Anthony Kennedy’s Supreme Court retirement throws the spotlight on one of the most influential players in Washington, D.C., when it comes to deciding what individuals inhabit the centers of power.  

We are talking about Leonard Leo, executive vice president of the Federalist Society and the go-to guy for names of federal court appointees when Republicans rule the White House.

Alongside Leo, journalists should also be taking a close look at another Republican networker and talent-spotter, Kay Coles James, as of January the president of the Heritage Foundation. Both are devout Christians, a fact the media have reported. But few reporters have explored that aspect of their life stories in any depth, allowing good prospects for fresh, religiously themed features or interviews.

The Federalist Society, where Leo has worked since 1991, boasts a constituency of some 65,000 conservative attorneys, jurists, and law school students. Justice Neil Gorsuch, who provided the pivotal vote in three important 5-4 Supreme Court rulings this week, was on the lists from which candidate Donald Trump promised to choose his Supreme Court nominees in an unprecedented campaign gambit.

Trump’s prime resource in choosing those names was Leo, as recounted in New Yorker profile by Jeffrey Toobin last year. Toobin says Leo “has met and cultivated almost every important Republican lawyer” of this generation. In addition to Gorsuch, he was the man behind the appointments of Chief Justice John Roberts and Justice Samuel Alito.

Leo was the chief Catholic strategist for George W. Bush’s re-election in 2004 and co-chaired Catholic outreach for the Republican National Committee. (The Religion Guy covered for The AP his briefing of Catholic delegates attending the party’s New York City convention.) Despite that partisan affiliation, President Barack Obama along with leaders of both parties in Congress appointed him to chair the U.S. Commission on International Religious Freedom.

Leo tries to attend daily Mass when possible and his “faith is central to all he does,” says Conor Gallagher of the Benedict Leadership Institute.

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After the Cakeshop case: Justice Kennedy cites need for First Amendment guidelines -- then punts

After the Cakeshop case: Justice Kennedy cites need for First Amendment guidelines -- then punts

It's the question that journalists have to be asking right now, along with the legal pros on both sides of future First Amendment clashes between sexual liberty and religious liberty. 

Now what?

To be blunt, was the 7-2 U.S. Supreme Court ruling in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission (.pdf) a signal (a) to religious believers of all stripes that it's open season, in terms of rejecting LGBTQ customers or (b) to blue-zip-code politicians that they are free to stomp on the First Amendment rights of traditional religious believers, only while using cool, calm legal logic rather than the heated prose used in Colorado?

As always, the key lines to parse were written by Justice Anthony Kennedy. Here is the essential material, as quoted by USA Today:

Kennedy acknowledged that business owners generally cannot deny equal access to goods and services under a neutral public accommodations law. Otherwise, he said, "a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws."

"The outcome of cases like this in other circumstances must await further elaboration in the courts," Kennedy said. "These disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market."

It's interesting that Baptist Press, when focusing on the same bottom line, made a strong effort to note the degree to which Kennedy once again affirmed LGBTQ rights:

"Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth," Kennedy said. "For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."

He wrote, "The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market."

So reporters, what phrases jump out at you, as you look to the future of this story?

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Here we go again: New York Times says White House door wide open for all 'evangelicals'

Here we go again: New York Times says White House door wide open for all 'evangelicals'

Before we dive -- yes, it's time to try again -- into another example of "Gosh, all those evangelicals sure do love Donald Trump" coverage, let's pause to, uh, separate the sheep from the goats.

If you understand that image, the odds are good that you are an evangelical or some other brand of Christian who has cracked open a Bible more than once.

Whatever. A few months ago, Sarah Pulliam Bailey of The Washington Post tweeted out a fun little link to a MereOrthodoxy.com "Are you an evangelical?" quiz that is kind of fun. Click here to take the test. (Or click here for her original tweet, which has some interesting comments.)

So I took the test, as a former Southern Baptist preacher's kid from the Jesus Movement era, and scored 10 out of 31. The site's judgement:

Spiritual but not religious: You are definitely not evangelical, but you might still have feelings that you associate with Jesus in some way when you are standing on a mountaintop or contemplating the ocean. 

Well, at least I know where I stand when writing about the press and its struggles to realize the complexities of evangelical identity in this day and age. I would have done better if it included a question asking how many Bruce Cockburn CDs are in my collection (I think I own every note the man has recorded).

Anyway, the New York Times recently (pre-National Prayer Breakfast) weighed in with another report on you know what. The headline: "Evangelicals, Having Backed Trump, Find White House ‘Front Door Is Open’." Once again, readers are told that all "evangelicals" backed Trump and, today, all of them are welcome at the White House." I am sure that will come as a shock to many.

However, this story is slightly better than that headline. At the very least, it acknowledges that even the early, core evangelical supporters of The Donald are a bit more complex than many would think. Hold that thought. First, here is a solid paragraph on why evangelical poll numbers remain high, when it comes to this White House. It starts with the prayer breakfast crowd, saying that the president stood:

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Looking at top stories of 2017: Sometimes it seems like religion haunts everything

Looking at top stories of 2017: Sometimes it seems like religion haunts everything

It was in 1981, while I was doing my graduate project at the University of Illinois at Urbana-Champaign, that I had a long conversation with the late George Cornell of the Associated Press about the state of mainstream religion-news reporting. Cornell used to say that he was, basically, the AP religion reporter responsible for all of Planet Earth.

That was, I think, the first time I heard him work his way through a list of the wire service's Top 10 stories of a given year, noting that most of them contained some essential news "hook," or set of facts, linked to religion.

Now, Cornell was not claiming that each of these stories was a "religion" story, per se. He was saying that reporters couldn't understand what was happening in these events and trends without taking the religious angles seriously. He didn't say that these stories were "haunted" by "religion ghosts" -- to use the defining image of this weblog -- but that was basically what he meant. I've been thinking about his words for decades.

I remember that he said there were lots of events that were not, in and of themselves, "religion stories." Take, for example, the Roe v. Wade decision at the U.S. Supreme Court. For most editors, that was a "political story." But how could a reporter cover it without talking to  religious leaders and activists, on both sides? Another example: I wrote my Baylor graduate project about "civil religion" themes in the 1969 Moratorium to End the War in Vietnam.

Note that those were specific events, with complicated backstories. During this week's long "Crossroads" podcast, host Todd Wilken and I went into "extra innings," so to speak, talking about this year's Top 10 religion stories, according to a poll of members of the Religion News Association. Click here to tune that in.

We spent quite a bit of time discussing the No. 1 item, which was different in the RNA list and then in my own. Here is the top RNA item.

1. Conservative evangelicals gain strong representation in the Trump administration, notably with Vice President Mike Pence, and on the president's informal religious advisory body. Trump maintains strong grassroots support among white evangelicals, polls show.

Now, for me, Pence was a 2016 story. So was the strong old-guard Religious Right presence in Donald Trump's political base during the GOP primary season. So what was the "big event" linked to that 2016 story that made it the top individual "story" of 2017?

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

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.

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CNN on Gorsuch: Is the judge a crypto-Catholic or a safe, normal Episcopalian?

CNN on Gorsuch: Is the judge a crypto-Catholic or a safe, normal Episcopalian?

Supreme Court confirmation hearings for Judge Neil Gorsuch begin today, so get set for some good TV.

A few journalists are still trying to get to the bottom of the form and content of Gorsuch’s religious views. Is he truly an Episcopalian or some kind of crypto-Catholic? Is he conservative or liberal? What are his views on abortion?

The latest effort, from CNN, assembles together what a lot of journalists have written about the nominee’s faith plus a few details the reporter found out on his own. The headline: “What is Neil Gorsuch’s religion? It’s complicated” hints at what's to come. We start here:

WASHINGTON (CNN) Earlier this month, the Trump administration summoned two dozen religious leaders to a private meeting. The mission: to rally support for Neil Gorsuch, Trump's Supreme Court nominee…
Eventually, the conversation turned to Gorsuch's own religious background.
He was raised Catholic but now worships with his wife and two daughters at St. John's Episcopal Church in Boulder, Colorado. Like the city, the congregation is politically liberal. It bars guns from its campus and installed solar panels; it condemns harsh rhetoric about Muslims and welcomes gays and lesbians. And its rector, the Rev. Susan Springer, attended the Women's March in Denver, though not as a form of protest but as a sign of support for "the dignity of every human being."

It goes a lot into his early life as a child in a Catholic family and then:

After college and law school, between stints clerking at the Supreme Court, Gorsuch studied legal philosophy at Oxford University in England, where his dissertation was supervised by John Finnis, a giant in the field and a former member of the Vatican's prestigious International Theological Commission.
Among laypeople, Finnis may be best known for his expositions on natural law, an often-misunderstood area of legal and moral philosophy.

The article then veers into a discussion of natural law. But isn’t Oxford where Gorsuch switched from the Catholic to the Church of England, also known as the Anglican Communion or, in the United States, the Episcopal Church? Writing about Gorsuch a few weeks ago, I included information on this point thanks to a helpful piece in the Daily Mail that connected the dots. 

However the CNN piece -- this is crucial -- suggests the Brits are wrong and that the judge never changed faiths.

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Judge Neil Gorsuch's Anglicanism is still a mystery that journalists need to solve

Judge Neil Gorsuch's Anglicanism is still a mystery that journalists need to solve

It’s been about three weeks since Neil Gorsuch has been nominated to the U.S. Supreme Court and we’re no closer to figuring out what makes him tick, spiritually. However, there have been a few jabs at trying to gauge the spiritual temperature of his family's parish in downtown Boulder, Colo..

The most aggressive reporting has been by a British outlet, the Daily Mail, whose reporters have shown up at Gorsuch’s parish, St. John’s Episcopal. The Mail has also been sniffing about Oxford University (pictured above), which is where Gorsuch apparently became an Anglican during his studies there. It was also where he met his future wife Marie Louise. Her family is Anglican and the Mail explains that all here and here.

Very clever of them to nail down his wife’s British background and that of her family and to have interviewed Gorsuch’s stepmother in Denver.

They too see a dissonance in Gorsuch’s purported conservative views and the church he attends:. 

He has been described as 'the heir to Scalia' and is a religious conservative whose appointment to the Supreme Court was greeted with jubilation on the pro-gun, anti-abortion Right.
But DailyMail.com can reveal that Neil Gorsuch's own church, in Boulder, Colorado, is a hotbed of liberal thinking -- and is led by a pastor who proudly attended the anti-Trump Women's March in Denver the day after the President's inauguration.
Another member of the clergy at St. John's Episcopal Church is outspoken about the need for gun control, and helped organize opposition to a gun shop giveaway of high-capacity magazines in the run-up to a 2013 law that banned them from the state of Colorado…
And in a twist that may surprise religious conservatives who welcomed Gorsuch's appointment, church leader Rev. Susan Springer, 58, has said she is pro-gay marriage and offers blessings to same sex couples.

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Surprise! New York Times zooms past hyper-obvious religion angle in Gorsuch-and-gay-rights story

Surprise! New York Times zooms past hyper-obvious religion angle in Gorsuch-and-gay-rights story

If the conventional analysis is to be believed, a key reason so many white evangelical Christians voted for Donald Trump last November 8 was concern over who'd get the ninth seat on the Supreme Court. And, any other seats opening up over the next four (or even eight) years.

For many, if not most, of these voters, the nomination of Judge Neil M. Gorsuch of the United States Court of Appeals for the Tenth Circuit in Denver would appear to have been cause for celebration. He takes an "originalist" view of the Constitution, just like the late jurist he would replace, Justice Antonin Scalia.

My co-GetReligionista Julia Duin has written about the dearth of coverage of Judge Gorsuch's faith, but, much like a bad meal of gas-station sushi, the problem keeps coming up. And ho better to belch forward another glaring omission than The New York Times, where the top editor breezily admits "we don't get the role of religion in people's lives," and moves on to the next thing?

This time, the "we-don't-get-the-role-of-religion" thing becomes glaringly obvious.

The Times is taking a look at one of the most contentious faith-based issues of the 21st century, that of the definition of marriage and how that definition will fare with Judge Gorsuch on the high court. "Gorsuch Not Easy to Pigeonhole on Gay Rights, Friends Say," reads the headline. From the story:

Democrats and their progressive allies are marching in lock step to oppose Judge Gorsuch, whose record they find deeply troubling, and gay pundits are painting him as a homophobe. But interviews with his friends -- both gay and straight -- and legal experts across the political spectrum suggest that on gay issues, at least, he is not so easy to pigeonhole.

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