First things first: Neil Gorsuch is qualified to be a justice of the U.S. Supreme Court, and he should be confirmed by the Senate.
That said, even qualified judges can make bad decisions. And Gorsuch and others on the federal appeals bench were deeply wrong when they decided Americans can opt out of laws for religious reasons.
For those who may not remember, the secular retailer Hobby Lobby sued the government in 2012. Its owners, the Green family, objected to the Obamacare requirement that their firm’s insurance coverage include some types of contraceptive services for employees.
The U.S. Supreme Court eventually sided with Hobby Lobby. But lower courts also weighed in, including Gorsuch, then an appeals court judge. He sided with the owners, too. “The Greens face … a choice between abiding their religion or saving their business,” he wrote.
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Supporters of the contraceptive mandate have called that a false choice: There were ways, they argued, to protect employees without violating the Greens’ First Amendment rights.
But let’s take Gorsuch at his word — that federal law and the Constitution allow those with sincerely held religious beliefs to exempt themselves from secular law. Can we not see the danger in that approach?
The government requires companies to do lots of things. It requires overtime pay, for example. The workplace must meet safety standards. You can’t hire children. You can’t discriminate. You must pay taxes.
Under the Gorsuch rule, all of those laws and more are subject to the religious whims of a company’s owner or owners. If religious faith trumps a secular statute — as it did in the Hobby Lobby case — then no law is safe.
And remember: If corporations are people, people are corporations. That means anyone can ignore a law for religious reasons.
Gorsuch and other judges understand this problem and always try to wiggle around it. “This isn’t the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation,” he wrote in his Hobby Lobby opinion.
That’s unquestionably true for the Greens, whose religious views are clear. But what about the next company? The courts aren’t allowed to question the sincerity of anyone’s faith.
That means if a wily businessperson tires of paying overtime, he or she can simply cite a Bible verse — or the Qur’an, or any religious text — and escape the requirement.
The courts used to understand this. In 1878, the Supreme Court said faith can’t trump secular law.
“To permit this,” the court wrote, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”
More than a century later, another Supreme Court justice agreed. “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law,” the majority opinion said.
Justice Antonin Scalia wrote those words. Gorsuch wants his seat on the court.
Congress responded to Scalia’s opinion by passing the Religious Freedom Restoration Act, the law the Greens used to avoid the contraception requirements. The Supreme Court’s broad interpretations of that law extend religious protection to almost any legal decision in the country — a hazardous exercise in a pluralistic nation.
The Greens are certainly able to campaign against the contraceptives requirement and persuade Congress to overturn it. Religious beliefs can inform voting choices, and the decisions of elected representatives can be based on faith.
That isn’t what happened in the Hobby Lobby case. The family sought and received a religious exemption from a law that applies to everyone else. Let’s hope Gorsuch understands the difference when he takes a seat on the U.S. Supreme Court.