Ethics & Public Policy Center

Judge Gorsuch and Religious Liberty

Published in National Review Online on January 31, 2017



Judge Gorsuch has a very impressive record in favor of religious liberty—and against a hyper-expansive reading of the Establishment Clause that would exclude religion from the public square.

In Hobby Lobby Stores v. Sebelius (2013), Gorsuch joined in full the en banc lead opinion that (1) held that Hobby Lobby, a closely held corporation, had standing to sue under RFRA, that it had established a likelihood of success on its claim that the HHS contraceptive mandate violated its RFRA rights, and that it had shown an irreparable harm, and (2) opined for a plurality that Hobby Lobby had satisfied the other factors (balance of equities and public interest) necessary for a preliminary injunction.

Gorsuch (joined by two other judges) also wrote separately to explain why the Green family members who owned Hobby Lobby were also entitled to relief under RFRA as individuals.

The Supreme Court affirmed the Tenth Circuit in Burwell v. Hobby Lobby Stores (2014). (The question of the RFRA rights of individual owners of closely held corporations was not before the Court.)

In Little Sisters of the Poor v. Burwell (2015), Gorsuch joined a brief opinion (for five judges) that dissented from the denial of rehearing en banc of a panel decision that ruled that the HHS mandate’s accommodation for nonprofits did not “substantially burden” the religious liberty of the Little Sisters of the Poor within the meaning of RFRA, even though it subjected them to massive fines for refusing to execute documents in violation of their religious beliefs. The dissent (authored by Judge Hartz) soundly states:

The opinion of the panel majority is clearly and gravely wrong — on an issue that has little to do with contraception and a great deal to do with religious liberty. When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

The dissent makes clear that it is addressing only the question of substantial burden and that it would “return this case to the panel to determine whether the certification requirement is the least restrictive means of furthering a compelling governmental interest.”

The Supreme Court granted certiorari in this case and in various other challenges to the accommodation, but then (in Zubik v. Burwell) issued a non-decision that declined to address the merits of the claims and instead remanded the cases so that the parties could work things out.

In Green v. Haskell County Board of Commissioners (2009), the Tenth Circuit, on a tie vote of six to six, failed to grant rehearing en banc of a panel decision that ruled that a county’s Ten Commandments display violated the Establishment Clause. Gorsuch (joined by three colleagues) wrote a memorable dissent in which he complained (among other things) that the panel majority’s “reasonable observer” (under Lemon’s dubious endorsement test) was not “someone who got things right” but was instead “an admittedly unreasonable” observer who “just gets things wrong” “because, the panel tells us, our observer is from a small town, where such errors cannot be helped.”

In American Atheists, Inc. v. Davenport (2010), the Tenth Circuit denied en banc review of a panel ruling that Utah violated the Establishment Clause by allowing the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths. Gorsuch joined one dissent from the denial of rehearing en banc and wrote another. The dissent that he joined argued that the panel began with a presumption of unconstitutionality, that it employed an unreasonable “reasonable observer,” and that it denied that a religious symbol can also have secular meaning. In his own dissent, Gorsuch complained that the Tenth Circuit’s “reasonable observer” “continues to be biased, replete with foibles, and prone to mistake.” He also opined that it is “far from clear” whether “even the true reasonable observer/endorsement test remains appropriate for assessing Establishment Clause challenges.”

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