The Gorsuch Nomination and Why to Fight It

My first thought on hearing that Trump had nominated Neil Gorsuch for the Supreme Court was simply relief that it wasn’t Pryor.

My second thought was to wonder if senate Democrats would fight the nomination and, if so, how hard. Now it looks like they will indeed fight it, but whether they have the votes for an effective filibuster and can sustain it remain to be seen.

There are two basic reasons to oppose this nomination:

The first is simple payback.  The Republicans’ unprecedented refusal to even consider Obama’s nomination of Merrick Garland was so outrageous that to acquiesce meekly to Trump’s pick would forever brand senate Democrats as spineless wusses. Garland was an uncontroversial centrist choice who had previously been widely supported and praised by Republicans. Their spiteful refusal to give him a hearing showed their naked contempt for Obama (and, indeed, the Constitution) and their clear intention to further politicize the Supreme Court. Leading Republicans from Ted Cruz to John McCain even threatened to keep the seat empty if Hillary Clinton won and not confirm any Democratic nominee. Now the Democratic base is mobilized and itching for revenge.

The second, and perhaps better, reason is Gorsuch’s record and judicial philosophy. A New York Times analysis actually places him further to the right than Scalia, with whom he has been frequently compared. The analysis quotes a recent academic study which concludes that Gorsuch would be a reliable conservative,  “voting to limit gay rights, uphold restrictions on abortion and invalidate affirmative action programs.”

The most insidious aspect of Gorsuch’s judicial record is his penchant for eroding separation of church and state by consistently ruling to grant exemptions for religious beliefs in complying with secular law, even when those beliefs are allegedly held by corporations rather than individual persons.

The best known case is the Hobby Lobby case, on which Gorsuch ruled at the appellate court level. The issue involved the claim by the owners of the Hobby Lobby Stores that the requirement to provide contraception care for its employees under the ACA constituted an infringement of freedom of religion. Both Gorsuch’s appellate court  and the Supreme Court (in a 5-4 split) ruled in favor of Hobby Lobby.

There were a number of peculiar aspects to this case.  One of them was the awkward fact that Hobby Lobby had provided its employees with contraception coverage before it was required to do so by the ACA, which suggested that its discovery of religious scruples was precipitated more by its objection to ObamaCare than by a long-standing religious conviction. More important was the argument that religious beliefs could be held by the corporation itself as a legal person, as distinct and separate from the owners of the corporation.

A caustic dissent on the SCOTUS decision, written by Ruth Bader Ginsberg, rejected that notion. “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. … Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a ‘less restrictive alternative.’ And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.”

The dissent further noted: “Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities…Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations.” The dissent concluded that the Court had “ventured into a minefield.”

Gorsuch has also ruled in favor of religious-based claims in other litigation such as the Little Sister of the Poor case in which the religious order refused to even apply for the religious exemption to which it was entitled by the ACA on the grounds that merely signing the paper constituted an intolerable burden on its religious freedom.

The problem, of course, is that “sincerely-held religious beliefs” can be literally anything. The growing intrusion of religion–specifically fundamentalist Christian religion–into American political life represents one of the most disturbing aspects of the Republican Party’s capture by the religious right.  These judicial rulings have been and will be used to justify further claims for special rights, for example, religious-based discrimination against gays.

This alone should be reason enough to resist the confirmation of Neil Gorsuch.  It may ultimately be a losing battle, but it’s one worth fighting.