Tuesday, January 31, 2017

Judge Gorsuch's Record On Religious Liberty and Church-State Issues

President Trump has nominated 10th Circuit Judge Neil M. Gorsuch to fill the late Antonin Scalia's seat on the U.S. Supreme Court. Judge Gorsuch, who has been on the 10th Circuit for over ten years, has a lengthy record on church-state and religious liberty issues. Christianity Today describes him as "a favorite pick among Christian conservatives."  RNS has an article entitled 5 faith facts on Trump’s Supreme Court pick, Neil Gorsuch.

Here are religion cases in which Judge Gorsuch either wrote an opinion or served on the panel of the 10th Circuit which decided the case:

⇾In Summum v. Pleasant Grove City, 499 F.3d 1170 (10th Cir. 2007), he joined a dissent from denial of an en banc rehearing in a case in which the 3-judge panel required the city to allow a Seven Aphorisms Monument in a city park. The U.S. Supreme Court eventually reversed the panel's decision. [update]

⇾In Green v. Haskell County Board of Commissioners, 574 F.3d 1235 (2009) he wrote a dissent from the denial of an en banc rehearing in a case in which a 3-judge panel had held that a Ten Commandments display outside a county court house violated the Establishment Clause.

⇾In Abdulhaseeb v. Calbone, 600 F.3d 1301(2010) he joined the unanimous decision holding that there were genuine issues of material fact on the issue of whether the state prison policy regarding halal foods substantially burdened a Muslim inmate's religious exercise. The court decided for the first time in the 10th Circuit the meaning of "substantial burden" under the Religious Land Use and Institutionalized Persons Act.

⇾In American Atheists, Inc. v. Davenport, 637 F.3d 1095 (2010) he wrote a dissent from the denial of an en banc rehearing in a case which held that memorial crosses donated by the Utah Highway Patrol Association and placed on public property to commemorate fallen troopers violate the Establishment Clause.

⇾ In United States v. Quaintance, 608 F.3d 717  (2010) he wrote a unanimous opinion refusing to allow a RFRA defense to drug charges, upholding the district court's conclusion that defendants, founding members of the Church of Cognizance, did not hold sincere religious beliefs regarding the use of marijuana. [Update]

⇾In Williams v. Sibbett, 442 Fed. Appx. 385 (2011) he joined a unanimous opinion that affirmed dismissal of a suit by a Muslim inmate who alleged that members of the Utah Board of Pardon and Parole decided to disfavor Muslims in parole decisions and to favor members of the Mormon church.

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (2013) was the 10th Circuit's en banc decision in the famous Hobby Lobby case holding that two related closely held corporations were likely to succeed on their claim that under RFRA the companies cannot be required to provide health insurance that enables access to contraceptives that they find morally problematic. Judge Gorsuch wrote a concurring opinion emphasizing that the owners of the companies as well as the companies themselves should be entitled to a preliminary injunction.

⇾In Yellowbear v. Lampert, 741 F.3d 48 (2014) he wrote a unanimous opinion vacating a district court's dismissal of a RLUIPA suit by a Native American inmate seeking access to the prison's sweat lodge.

⇾In Ali v. Wingert, 569 Fed. Appx. 562 (2014) he wrote a unanimous opinion upholding a prison regulation that requires inmates wishing to use their religious name on their mail to also use their committed name along with it.

⇾In Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315 (2015) he joined a dissent to denial of en banc review of a 3-judge panel's decision that the religious exercise of Little Sisters of the Poor was not substantially burdened by requiring it to execute government forms in order to obtain an exemption from furnishing health insurance that includes contraceptive coverage.

⇾In Planned Parenthood Association of Utah v. Herbert, 839 F.3d 1301 (2016) he dissented from denial of en banc review of a panel decision granting a preliminary injunction to Planned Parenthood to prevent Utah's cutting off the pass-through of federal funds to the organization.

Judge Gorsuch has also written a book titled The Future of Assisted Suicide and Euthanasia, published by Princeton University Press. Here is an excerpt from the publisher's description of the book:
After assessing the strengths and weaknesses of arguments for assisted suicide and euthanasia, Gorsuch builds a nuanced, novel, and powerful moral and legal argument against legalization, one based on a principle that, surprisingly, has largely been overlooked in the debate--the idea that human life is intrinsically valuable and that intentional killing is always wrong. At the same time, the argument Gorsuch develops leaves wide latitude for individual patient autonomy and the refusal of unwanted medical treatment and life-sustaining care, permitting intervention only in cases where an intention to kill is present.
[Note: This post will be updated to include other Gorsuch opinions that come to my attention. I invite readers to e-mail me information on any I have omitted.]