On Tuesday night, President Trump delivered on a promise made to voters during the general election by nominating Neil Gorsuch of the Tenth Circuit to the Supreme Court. If all goes as the Trump administration hopes, Gorsuch will fill the seat left by the late Antonin Scalia following the latter’s passing earlier in 2016. In a Court that is currently split 4-4 on fundamental issues, Gorsuch will provide what is expected to be a critical conservative-leaning vote.
While reactions to the nomination have been expectedly mixed, Gorsuch’s stance on perhaps one topic has polarized the populace more than any other: Religious Liberty. As conservatives have praised Gorsuch’s work in defending the Green Family (Hobby Lobby v. Burwell) and the Little Sisters of the Poor, liberals have interpreted Gorsuch’s involvement in those same cases as evidence of his favoritism towards Christians. While the GOP celebrates a nominee with a proven track record, others express concern that—should he sit on the highest court of the land—Gorsuch could return the country to a time when “religious liberty” was used as a weapon, wielded to impose one’s form of worship on another.
On one hand, those who praise Trump’s pick do so passionately. Leaders of faith-based organizations have been some of Gorsuch’s most vocal supporters. Russell Moore of the Ethics and Religious Liberty Commission, for example, released the following public statement on the ERLC website following Trump’s announcement.
“Judge Neil Gorsuch is an exceptional choice for Supreme Court justice. He is a brilliant and articulate defender of Constitutional originalism in the mold of the man he will replace: Justice Antonin Scalia. His career is one that exemplifies the very best of intellectually robust conservatism, judicial restraint and faithfulness to the Constitution. I heartily support President Trump’s excellent appointment. I look forward to Judge Gorsuch’s voice on the Court for decades to come and pray that he will be an articulate and stalwart advocate for religious liberty and human dignity at all its stages. Along with Baptists and other believers around the country, I urge the Senate to confirm Judge Gorsuch without delay. (emphasis added)
Similarly, Stephen White of the Ethics and Public Policy Center wrote an article for the EPPC titled “Why Neil Gorsuch is an Outstanding Supreme Court Nomination”. In his piece, White commends Gorsuch as one who “has been a reliable defender of constitutional and statutory protections for religious freedom: notably, he stood against the Obama administration’s refusal to treat the Little Sisters of the Poor as a religious organisation.”
On the other hand, those who condemn Trump’s nominee do so with equal vigor. Leaders of secular organizations have taken to their own domains to voice their opposition. In a statement released to the public, executive director Larry Decker of The Secular Coalition for America said:
The nomination of Judge Gorsuch by President Trump signals a clear intent by the Administration to shape the nation’s highest court in an ideological fashion that threatens religious liberty and pushes an agenda at odds with the majority of Americans. Prior to making its way to the Supreme Court, the case of Hobby Lobby v. Burwell was brought before the 10th Circuit Court of Appeals. Judge Gorsuch ruled in favor of Hobby Lobby, asserting that business owners with sincerely held religious beliefs could deny their employees access to healthcare benefits they were guaranteed by law under the Affordable Care Act. The result of the Hobby Lobby decision has been disastrous, granting business owners an unprecedented the unprecedented power [sic] to impose their personal beliefs on employees and setting a dangerous legal precedent that elevates religious belief above the law. (emphasis added)
Likewise, Amanda Knief, legal director of American Atheists writes:
American Atheists has grave concerns about the nomination of Judge Neil Gorsuch to serve a lifetime appointment on the United States Supreme Court. Judge Gorsuch’s expansionist view of religion as a ‘Get Out of the Law, Free’ card is fundamentally at odds with the history of American jurisprudence and would allow religion to be used as a weapon against women, LGBT people, atheists, and others. (emphasis added)
Comparing the two sides, one could reasonably ask: Are the above descriptions talking about the same Neil Gorsuch? Perhaps most striking is the mutual contradictoriness of both sides. While Moore and White see Gorsuch as a great defender of the Constitution and religious liberty in general, Decker and Knief see him as the greatest threat to that same document and its principles. How can this be? Both camps disagree to such an extent because both are operating under fundamentally incommensurable interpretations of religious liberty. In essence, Moore/White and Knief/Decker hold to two diametrically opposed definitions of religion in general and religious liberty in particular. What we see in their public statements are the veneer, the outward conclusions to hidden and unstated premises.
For the one, religious liberty is meant to encompass both freedom of worship and freedom of expression. It is the right to have one’s faith inform both one’s beliefs and one’s actions. At the least, it is the freedom to operate a business or nonprofit in a way that honors one’s conscience, whether that be the denial to provide contraceptives and abortifacients to employees or the right to choose one’s clientele. For the other, religious liberty can be best described as a freedom from religion. Religious liberty allows each person to hold to his or her beliefs only insofar as those beliefs remain private, isolated and do not interfere with the rights of others. This notion of religious liberty does not allow religious belief to inform action, especially if said actions deny others their right to reproductive health and other services.
Which side is right? To answer the question would require more space than a post such as this allows. Rather, I believe the answers are not as important as asking the right questions. We should inquire: Is either side willing to question its own assumptions? Only when these have been stated and debated publicly can true discourse between the camps occur. Only when we have reached agreement on the more fundamental (and philosophical) question of “what religious liberty is” can we begin to make policy decisions on how to defend it domestically and how to promote it internationally.
This has always been the harder task, and ours is a society that is increasingly turning its back on such modes of questioning. Although we might prefer to blindly assert rather than calmly to argue, only through the latter route will some form of agreement be built between the competing sides.