Gorsuch Tips Hand on Religious Freedom

Comments signal a man who will defend Christians’ rights

by ChurchMilitant • March 21, 2017

The second day of confirmation hearings for Supreme Court nominee Neil Gorsuch dragged on Tuesday, the hours of questioning more about endurance than getting to the heart of the would-be justice’s opinions — but Gorsuch seemed to tip his hand on a major issue regarding religious liberty.

In his back-and-forth with Texas senator John Cornyn, Gorsuch seemed to denigrate the Lemon test. The Lemon test was created by the Supreme Court in 1971 to determine if a law gives too much aid to religion, supposedly in violation of the Establishment Clause. The Lemon test asks whether a law has a clear intent to promote a religion, if the law’s effect is to promote or diminish religion, and whether or not that law causes an “excessive government entanglement” with religion.

What does it mean to have an “excessive government entanglement” with religion? The Court has never clearly defined this. As a result of this vague standard, many religious liberty cases are left at the complete discretion of anti-religious judges who strike down all laws that have anything to do with with public displays of religion.

When the Republican senator brought up his concern that religious expression was being denied by the Supreme Court, Gorsuch brought up the Lemon test. He mentioned the problems with the test and noted that six different Supreme Court justices have expressed dissatisfaction with it — albeit at different times — along with many legal academics.

This invocation and derision of Lemon is especially notable given Gorsuch’s general reluctance to answer questions about previous Supreme Court decisions. That Gorsuch is so willing to note the problems of the test suggests he might be willing to reconsider it and institute a new one, which better protects expressions of faith in public.

The nominee’s comments are especially heartening, considering the nominee’s previous decisions while a circuit court judge, which often defended religious freedom and the public practice of faith.

In his dissent in American Atheists, Inc. v. Davenport, Gorsuch defended the Utah highway patrol in using white crosses to commemorate the service of police who had died in the line of duty, saying that no reasonable person could think such a display endorsed religion. And his dissent in Green v. Haskell County Board of Commissioners defended the use of the Ten Commandments on public property, affirming that “displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.”

Such decisions fly in the face of many liberal judges, who have used the Establishment Clause to claim a “wall of separation” must be erected between Church and State, the effect of which has been to remove religious expression from large areas of American life.

Gorsuch has also defended the rights of free religious expression. In Hobby Lobby v. Sebelius, Judge Gorsuch wrote in a concurring opinion that “it is not for secular courts to rewrite the religious complaint of a faithful adherent” and that conscientious objection is “a matter of faith [judges] must respect.”

Catholics have good reason to be optimistic that a man will soon be on the Court who can help them retake the culture.

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