By David French
Monday, March 20, 2017
Thus far there are two unfolding lines of attack on Judge
Neil Gorsuch. The first is so intellectually absurd as to be frivolous — that
he rules for the wrong people. In other words, the critic ignores the legal
reasoning and focuses only on the legal outcome. If a poor person or a person
of color loses, the judge is wrong. If a corporation wins, the judge is wrong.
Judges are not legislators, however, and critiques that barely even mention (or
ignore entirely) applicable legal standards when evaluating case outcomes may
sometimes play well on television but prove difficult to sustain in practice.
Unless a judge utterly lacks integrity, he or she finds himself ruling against
his ideological friends all the time. (Witness the Obama administration’s remarkable
number of 9–0 defeats before an ideologically divided Supreme Court.)
The second critique is far more philosophically
substantial and goes to the heart of how we define our most fundamental rights.
Essentially, a number of legal leftists believe that Judge Gorsuch has entirely
too much respect for religious freedom. Writing in Slate, Dahlia Lithwick lays out this view at length. First, she
claims that “our current religious liberty jurisprudence . . . is extremely
deferential toward religious believers.” She claims that “religious dissenters
who seek to be exempted from neutral and generally applicable laws are given
the benefit of the doubt, even when others are harmed. Sometimes those harms
are not even taken into account.”
She continues:
Gorsuch agrees with all of this and
then some. His record reflects a pattern of systematically privileging the
rights of religious believers over those of religious minorities and
nonbelievers. It is, of course, vital and important to protect religious dissenters;
the First Amendment could not be clearer. But the First Amendment is equally
anxious about state establishment of religion, an anxiety Gorsuch is less
inclined to share.
In other words, when Judge Gorsuch examines the
religious-liberty claims of, say, Hobby Lobby against the regulatory “right” of
free contraceptive coverage, applying any preference to the claims of religious
litigants is not only improper, but it may even violate the establishment
clause.
Yet this fundamentally misunderstands not merely the
statutory law at issue but also the history of religious liberty as a
constitutional and human right. First, the Religious Freedom Restoration Act
(the statute at issue in the Hobby Lobby
case) mandated that Judge Gorsuch
apply a specific legal test to the case that privileged religious-liberty
claims. Had he not applied that test, he would have been disregarding the law
he was charged to interpret.
Second, no one should think that all rights exist on equal
footing. As our Declaration of Independence acknowledges, we are endowed by our
Creator with certain “unalienable rights.” Government doesn’t create those
rights. Its role is instead to acknowledge and protect them. While there’s no
comprehensive list of unalienable rights, the Bill of Rights is a good place to
start. It defines and protects the liberties that were essential to our
nation’s founding and indispensable to the protection of a free people.
A “right” to free birth-control pills is not on that
list. Nor are numerous other statutory or regulatory rights that governments
give and take away at will. In reality, we often use the word “right” to
describe what are actually privileges, and it’s entirely appropriate for a
court to give deference to an actual
human, natural, and constitutional right when it conflicts with a regulatory
privilege.
You’ll often see religious-liberty cases wrongly
described as if equal rights were in conflict. For example, on college
campuses, I’ve litigated cases in which the religious liberty of a student
group is said to be in conflict with the “right” of an atheist student to run a
Christian group. In other cases, the religious-liberty rights of bakers and
florists are said to be in conflict with the alleged “rights” of customers to
purchase wedding cakes and floral arrangements from the artist of their choice.
Should rights of conscience be on the same footing as acts of college
administrators or state regulators? Or should rights of conscience have a
built-in advantage, to be overruled only in the most compelling circumstances?
Indeed, this question highlights perhaps Justice Antonin
Scalia’s worst judicial decision. In Employment
Division v. Smith, he stripped the free-exercise clause of much of its
legal potency, wrongly relegating it to second-class status in the Bill of
Rights, and setting up much of the regulatory and intellectual confusion that
followed. Judge Gorsuch, fortunately, appears to have a much sounder view of
religious freedom.
Lithwick uses the term “suffering” to describe the plight
of persons who have to pay for their own birth control. But the hyperbole
surrounding the Hobby Lobby case
demonstrates exactly why religious liberty merits heightened protection:
Minority religious views are often unpopular, especially when confronting state
programs designed from the ground up to bestow state benefits.
The Founders appropriately resolved the conflict between
fundamental rights and government power. In all but the most compelling
circumstances, fundamental rights should prevail. This does not mean that
asserting a religious-liberty claim means automatic victory. The assertion must
be sincere, and even sincere assertions should be overcome when the
governmental interests are sufficiently compelling and its action appropriately
narrow. But the principle stands: Religious liberty is a right our nation
protects, not a right it creates, and it is entirely right and proper for
judges to recognize that fundamental moral and constitutional fact.
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