People aren’t always what they seem.
For example, when Neil Gorsuch was nominated to the U.S. Supreme Court by President Donald Trump he already had two strikes against him in my eyes: he was nominated by our gratuitously amoral president, and he had a vague reputation for hard-right religiosity.
It was reasonable for me to be wary that our president, who shamelessly sucks up to evangelicals for votes, was Gorsuch’s champion. But, it turns out the respected jurist, while he is indeed a religious man, is no Girolamo Savonarola, the Dominican firebrand whose ruthless morality campaign nearly brought Florence, Italy, to her knees in the 15th century. The “bonfire of the vanities” was the tag given to piles of luxury goods the rabid monk ordered burned in the city to combat vice.
Which is not to say we American nonbelievers shouldn’t worry. Gorsuch is afflicted with the occupational hazard of devout folks: he believes in things that don’t seem to exist, which should fairly allow us to wonder about his judgement regarding existent things.
Fellow rookie Supreme Court Justice Brett Kavanaugh, on the other hand, is a whole other story for another post.
But today I’m focusing on Gorsuch, who, I must admit, concerned me when he was nominated. I viewed him as a guy who would be passionate about protecting religious freedoms of Americans at the expense of the human rights of non-Christians, committed nonbelievers and the religiously uninterested.
Religious rights trump secular ones
That has been the problem of late: Christian believers trying, through the courts, to force Americans who may not share their ideology — and often succeeding — to forfeit their rights in deference to Christian religious sensibilities. What immediately comes to mind is the Hobby Lobby case, in which the company of that name got Supreme Court approval to deny its employees access to completely legal and constitutional birth-control contraceptives and procedures (e.g., the “morning after pill” and abortion) via the company’s health insurance plan.
To a secular viewpoint, this amounts to Americans being penalized for not believing in Christian doctrines, sacrificing their down-to-earth human rights in forced deference to a company owner’s belief in invisible beings.
I’m pretty sure this was exactly the kind of thing that the Founding Fathers were trying to avoid — not birth-control access, which was not a thing back then, but situations where the government (the high court in this instance) assumed the role of a football blocking back to allow Christians to run past the fundamental rights of others unimpeded — and throat-punching their opponents as they run past.
Enter Gorsuch. With conservative, constitutional “orginalists” Gorsuch and Kavanaugh now on the court, a rough 5-4 conservative majority now controls the critically important U.S. judicial body, as described in a Vox article. Originalists try to follow what they think the writers of the Constitution intended, rather than what the text seems to say. Of note, conservatives are generally religious and at least a bit reactionary in temperament, so they traditionally have viewed abortion, LGBT rights and even atheism, with more trepidation than liberal-minded folks. Of course, jurists with integrity can rise above all that to make sound decisions based on the fact and the law.
But, as we’ve seen with religious-freedom questions, for instance, conservative judges tend to want to lean over backward to the point of spinal fracture to accommodate Americans’ religious preferences. Too often, however, this results in other Americans’ rights being trampled in consequence. In my view, it is a case of the protection of a “right” simultaneously producing a wrong.
That can’t be just.
Part of the problem is that religion in the U.S. has assumed a kind of permanent mythic-sacred status that must be accommodate because it happens to be in the constitution, regardless of whether that causes more problems than it solves. Conservative jurists often seem to think that the problems caused by limiting religious freedoms — even if they trash the secular freedoms of others — would be far more catastrophic for the republic than not.I respectfully disagree.
Freedom for one, discrimination for another
If things had gone the other way in the Hobby Lobby decision, its owners still wouldn’t have been forced to use birth-control services themselves if they didn’t choose to, but they would have been prohibited from, in effect, forcing their employees not to use them. So, the freedom of both to choose would be upheld. The only difference would be that the private religious feelings of the one side could not be forced against the choices and in violation of the rights of the other.
Which brings me back to Gorsuch. From what I’ve read about the man since his seating on the court is that he is not a knee-jerk Christian Right soldier. He is apparently a very thoughtful, compassionate guy who happens to be quite conservative.
In his previous court decisions, Gorsuch has written that Americans should be wary of anything that “imposes a substantial burden on that person’s free exercise of religion.” But regarding abortion and euthanasia laws, he seems less focused on religious aspects than on the fundamental value of life.
In his 311-page 2006 book “The Future of Assisted Suicide and Euthanasia,” Gorsuch wrote that:
“… human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”
He said he based this conclusion not on religious considerations but on “secular moral theory” that was consistent with “common law and long-standing medial ethics,” according to a 2017 Denver Post article reprinted by the Daily Camera.
Which is not to say he doesn’t value religion. In a case where a court ruled against honoring fallen Utah state troopers with public roadside crosses — Christian icons — Gorsuch countered,
“Courts shouldn’t step in and try to eliminate religious references from American tradition.”
‘Largely liberal in a largely liberal city’
So, I’m heartened by his considered thoughtfulness, although I’m sure he values the propagation of religion in American life far more than I and other nonreligious people do. Still, he attends St. John’s Episcopal Church — it describes itself as “largely liberal in a largely liberal city” — in Boulder, Colorado. His family and himself are regularly involved in church activities.
One of the church’s clergy described Gorsuch as “humble and thoughtful.”
He’s also reportedly an exceptionally kind friend. As a circuit court judge, he presided at the wedding of Ed Hamrick, a former Columbia University undergrad classmate, according to the Post article.
“It meant a lot to me at the time — still does,” Hamrick told the newspaper.
Gorsuch also arranged the bride’s arrival to ensure that Hamrick did not see her before the ceremony began at the 10th Circuit Court of Appeals, where the jurist then worked.
“At the time it was an awfully nice thing to do for a friend,” Hamrick said.
So, I am hopeful that the Supreme Court considerations of such a kind, humble and compassionate justice will lead to decisions where private faith is just one among many important elements to weigh in First Amendment cases, not the only one.