Federal Courts and Nominations

Gorsuch is already pushing the Supreme Court right on religion, guns and gay rights

By David Savage

When Judge Neil M. Gorsuch went before the Senate in March as President Trump’s first nominee to the Supreme Court, he sought to assure senators he would be independent and above the political fray.

“There is no such thing as a Republican judge or Democratic judge,” he said more than once. “We just have judges.”

But in just his first few weeks on the high court, Justice Gorsuch has shown himself to be a confident conservative activist, urging his colleagues to move the law to the right on religion, gun rights, gay rights and campaign funding.

He dissented along with Justice Clarence Thomas when the court rejected a gun-rights challenge to California’s law that strictly regulates who may carry a concealed weapon. “The 2nd Amendment’s core purpose,” they said, shows “the right to bear arms extends to public carry.”

He wrote a dissent, joined by Thomas and Justice Samuel A. Alito Jr., when the court struck down part of an Arkansas law that gave opposite sex-couples, but not same-sex couples, the right to have both spouses listed on a child’s birth certificate. The court said it had already decided that same-sex couples deserve fully equal rights under state law.

And when Trump’s travel ban came before the court this week, Gorsuch dissented from the majority’s middle-ground approach, which allowed the ban to take effect except for foreign travelers who had a relationship with this country, such as a close relative or a student enrolled in a university.

Gorsuch, again with Thomas and Alito, said the entire ban should take effect immediately. “The balance of equities favors the government,” they said.

“I expect conservatives are celebrating,” said Elizabeth Wydra, president of the Constitutional Accountability Center, a progressive legal group, adding that he had “failed his first test” in the travel ban case.

But it comes as no surprise that Gorsuch, 49, is a conservative. He was a Republican appointee to the U.S. appeals court in Denver, and he drew the eye of Federalist Society Executive Vice President Leonard Leo because he is a superb writer and a thoughtful and reliable conservative. Gorsuch was always seen as a fitting successor to the late Justice Antonin Scalia, a conservative hero.

Still, there is always a bit of apprehension when new justices are seated and begin to reveal their opinions on issues they usually avoid discussing during the confirmation process. Conservatives, in particular, have been bitterly disappointed when Republican appointees, such as former Justices David H. Souter and Sandra Day O’Connor, and current Justice Anthony M. Kennedy, turned out to be more moderate in some areas.

Most new justices are cautious upon arrival, and conservatives are usually inclined to uphold the laws on the books and stick with the court’s precedents. Gorsuch, however, has shown himself anxious to change the laws, particularly in the area of religious liberty and church-state separation.

Throughout American history, the U.S. Constitution and most state constitutions have prohibited the government from giving tax money to churches. But in this week’s ruling involving a church-run, day care center in Missouri, the justices described those traditional funding restrictions as an unconstitutional discrimination against the “free exercise” of religion.

Chief Justice John G. Roberts Jr. said it is “odious” to disqualify the preschool from receiving a state grant to rubberize its playground simply because it is run by the Lutheran church. But his opinion took a cautious approach and said in a footnote the court was ruling only on a playground and not other “religious uses of funding.”

Gorsuch wrote a short separate opinion to disavow the footnote and to argue for a much broader view of what is protected by the idea of the “free exercise of religion.”

“That clause [in the 1st Amendment] guarantees the free exercise of religion, not just the right to inward belief,” he wrote. “The general principles here do not permit religious discrimination — whether on the playground or anywhere else.”

Advocates of school choice saw the decision as an important opening for public funding. And the day after the ruling, the justices told the Colorado courts to take another look at a case testing whether students in religious schools are entitled to tax-funded scholarships if students in other private schools may qualify. Colorado’s high court ruled that such aid to a religious entity violated the state’s constitution, but that conclusion is now in doubt.

Michael Bindas, an attorney for the Institute of Justice in Virginia, said the Supreme Court’s “order sends a strong signal” that states and localities may not “exclude religious options from school choice programs.”

On the last day of the term, the justices also voted to hear a major religious liberties case from Colorado, even though they had turned down similar appeals prior to Gorsuch’s arrival. At issue is whether to carve out an exception to the state’s civil rights law requiring public businesses to serve all customers without regard to their race, religion or sexual orientation. The court voted to hear a “free exercise of religion” and free speech claim from a baker who cited his Christian beliefs as a reason for refusing to bake a wedding cake for a same-sex couple.

On campaign financing, Gorsuch last month dissented with Thomas when the court affirmed earlier rulings that upheld federal limits on big-money gifts to political parties.

In the Citizens United case, the justices struck down the limits on “independent” political spending, but they have stood by the restrictions on how much donors can give directly to candidates and parties.

The Republican National Committee has continued to challenge those limits, and Gorsuch said the court should hear the challenge.

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