That seems an odd way to measure the independence and acuity of a judge; presumably, little guys can be wrong now and again.
But in his opinion in the controversial Hobby Lobby case, Gorsuch did rule for the little guy. And in doing so, he has given us some clues about the kind of justice he would be.
First, a refresher on the wildly non-controversial 1993 law the case is based on, the Religious Freedom Restoration Act introduced by Ted Kennedy in the Senate and Chuck Schumer in the House, where there was no opposition at all.
“What this law basically says is that the government should be held to a very high level of proof before it interferes with someone’s free exercise of religion,” President Bill Clinton said on the day he signed it. “Let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions; let us instead respect one another’s faith.”
Twenty years later, with respect in even shorter supply, Gorsuch concurred with the majority opinion in the 10th Circuit Court of Appeals that in the Hobby Lobby case, the government had failed to meet that very high level of proof Clinton mentioned.
They hadn’t, the judges said, proved that forcing the evangelical Christians who own the Hobby Lobby craft stores to pay for contraceptive insurance coverage for their employees — as required under Obamacare, but in violation of their faith — was the “least restrictive means of advancing a compelling interest.” In other words, there were other, easier ways the government could make sure women get free contraceptives -- ways that do not require the company’s owners to disregard their religious beliefs.
But Gorsuch also wrote a separate opinion, to explain why David and Barbara Green and their children “as individuals, are also entitled to relief.” The legal case he makes for them “as human agents” undercuts the argument that Hobby Lobby is a dangerous decision in part because, like Citizens United, it confers the rights of people on corporations.
“All of us face the problem of complicity,” Gorsuch wrote. “All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. … The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to this case.”
The Greens, who started their business out of their garage in Oklahoma, are at this point little guys with big holdings — more than 500 stores with 13,000 employees. But they’re almost certainly in the minority in being willing to go out of business rather than cover all of the 20 birth control methods mandated under Obamacare. (They were willing to cover 16 of them, but not two IUDs and the emergency contraceptives Plan B and Ella, which they consider abortion-inducing.)
Given the power differential between the Green family and the federal government, they are still little guys. Their refusal could have cost them as much as $475 million a year extra in taxes.
The Religious Freedom Restoration Act protects not just Christians, but those of all faiths, including the Native Americans whose right to smoke peyote as part of their religious practice inspired the original Clinton-era legislation. And that’s one of the points Gorsuch makes: “No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. … The act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”
The most popular argument against the decision is that the “slippery slope” of such conscience protections inevitably leads to discrimination, particularly against gay people. But we can and must honor both conscience protections and anti-discrimination laws.
“Slippery slope” worries are what the National Rifle Association invokes in arguing against common-sense measures like keeping guns out of schools and mental hospitals — and to me, “slippery slope” thinking leads to extremes.
The judge whose concern about the “slippery slope” in conscience-protection cases prompted the passage of the Religious Freedom Restoration Act in the first place was Gorsuch’s hero, Antonin Scalia; he worried that anybody could claim faith-based opposition to any old law, and anticipated a flood of crazy claims. But anyone doing that would still have to get past the courts first, and in the almost quarter of a century since the legislation passed, that hasn’t happened.