He defended the rights of a man, convicted of killing his young daughter, to worship in a prison sweat lodge. He wrote that “human life is fundamentally and inherently valuable” in the context of assisted suicide. And he argued a company’s owners are allowed to deny health care coverage for birth control that violates their faith.
More than most issues, U.S. Supreme Court nominee Neil Gorsuch’s writings on the intersection of religion and the law have faced intense scrutiny before his expected confirmation hearings. So too have his personal beliefs as a Catholic turned Episcopalian and conservative who worships at a self-described “largely liberal” church in Boulder.
The focus is more than just a philosophical interest. With the court split between liberals and conservatives, his approach — and future votes — could impact cases dealing with religious liberty, transgender discrimination and reproductive rights.
Eugene Volokh, a University of California, Los Angeles law professor with a background in church-state relations, said Gorsuch’s judicial record shows he values federal laws that give a wide berth to religion. What Gorsuch “is saying is that Congress has told us that religious exemptions ought to be granted where feasible,” Volokh said.
In addition, he said Gorsuch is similar to the late Justice Antonin Scalia — who he would replace — in believing it’s not the role of judges to scrub religious symbols from all corners of public life.
“Courts shouldn’t step in and try to eliminate religious references from American tradition,” Volokh said of Gorsuch’s position — noting one case in which Gorsuch disagreed with a court decision against roadside crosses that honored fallen Utah state troopers.
His nomination by President Donald Trump has invigorated like-minded legal scholars even as it troubles critics who express concern that a conservative majority on the nation’s highest court would erode protections for the LGBTQ community and reproductive rights for women.
His history on these two issues is relatively thin, only fueling the speculation on how the fourth-generation Coloradan would rule as a Supreme Court justice. A deeper review of Gorsuch’s record as a judge on the Denver-based 10th Circuit Court of Appeals and his life in Colorado offers a more complicated picture.
In one case known as Yellowbear, the judge overturned a lower court ruling and found a Wyoming prison had no compelling interest to prevent an American Indian inmate from accessing the sweat lodge to practice his religious beliefs. In another ruling, the judge maintained an Oklahoma prison needed to accommodate a Muslim inmate who demanded halal meals.
Michael Norton, a conservative and former U.S. attorney for Colorado who has analyzed many of Gorsuch’s rulings, said the judge is sympathetic to religious freedom given its prominence in the constitution.
“He’s just particularly focused on assuring the values espoused by the religion clauses of the First Amendment are in fact applied for what they are meant to be applied for,” Norton said.
Legal writings
The cases that draw the most attention are his rulings in Hobby Lobby and Little Sisters of the Poor, in which he challenged the Affordable Care Act’s mandate that employer health plans cover contraception for women because it conflicted with a business owner’s religious beliefs.
In Hobby Lobby, Gorsuch argued that the requirement would force business owners “to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg,” despite arguments from the law’s supporters that an exemption would allow owners to impose their faith on employees.
In Little Sisters, he suggested that the opt-out allowed in the federal health care law “imposes a substantial burden on that person’s free exercise of religion.”
Gorsuch’s rulings “are very promising from a conservative perspective,” said Jeff Hunt, the Centennial Institute director at Colorado Christian University in Lakewood, who spoke to Gorsuch days before his nomination. “He understands the role of the government and the role of the courts.”
But his critics, such as liberal advocacy organization Alliance for Justice, use the cases to suggest Gorsuch is hostile to a women’s access to reproductive health care, labeling him “a far-right extremist.”
Sarah Warbelow, legal director at the Human Rights Campaign, said she and other activists are concerned that Gorsuch’s approach to the Hobby Lobby case could open the door for the use of “religion as an excuse to discriminate against LGBTQ people.”
As an example, Warbelow cited coverage of hormone therapy for transgender people or infertility treatment for lesbian couples.
Roe vs. Wade and abortion
Whether Gorsuch is open to upending Roe is a matter of debate among legal scholars. Some see his textualist interpretation of the law as a threat to abortion rights. Others suggest he would defer to existing court doctrine.
In his 2006 book “The Future of Assisted Suicide and Euthanasia,” Gorsuch offers a robust discussion of the landmark case and abortion in the context of determining the value of life, all while avoiding an overt stance.
The 311-page text, a mix of philosophical discussion and legal analysis, ultimately positions Gorsuch in opposition to assisted suicide and euthanasia.
He wrote that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” The argument, he continued, is based on “secular moral theory” and consistent with “common law and long-standing medical ethics.”
He made clear in a footnote that he did not “seek here to engage the abortion debate” and cited Roe as the reason assisted suicide and abortion are separate matters.
“Abortion would be ruled out by the inviolability-of-life principle … if, but only if, a fetus is considered a human life. The Supreme Court in Roe, however, unequivocally held that a fetus is not a ‘person’ for purposes of constitutional law,” he wrote in the footnote.
Religious beliefs
Religion has been a constant presence, but not a dominant one, in Gorsuch’s own life, several friends and acquaintances said. He grew up Catholic and attended weekly Mass during his years at Georgetown Prep, a Jesuit school in the Maryland suburbs of Washington.
“My mother was a Catholic. My father wasn’t particularly religious, and so we were raised Catholic,” said J.J. Gorsuch, Neil’s younger brother who lives in Denver. He added that “spirituality has always been a part of our lives.”
Neil Gorsuch later would join an Episcopal Church in Boulder and, after Trump announced his nomination at the White House, he gave passing mention to his beliefs. “I am so thankful tonight for my family, my friends and my faith. These are the things that keep me grounded at life’s peaks and have sustained me in its valleys,” Gorsuch said at the White House.
At Georgetown Prep, faith was part of the conversation but so were the usual topics of politics and literature, said Michael Trent, a former classmate and longtime friend. “Neil loved to discuss things,” said Trent, who now lives in Atlanta.
He said Gorsuch is godfather to both his sons — and a doting one at that. “Not a birthday has gone by, or a Christmas, in which a package has not shown up from godfather Neil,” he said.
Trent added that Gorsuch never was one to proselytize, or even talk much about his own religious beliefs, but said Gorsuch’s faith was evident in his actions. “It’s hard to be as caring and compassionate as he is without giving credit to a higher source,” Trent said.
That sentiment was echoed by Tracy Ashmore, a Colorado attorney and fellow member of a legal club called the Doyle Inn of Court. She said Gorsuch’s religion is one reason she thinks he’s humble. “I think he knows he’s not God, which is pretty nice,” she said. “Because that’s not always the case at the federal circuit level.”
Gorsuch now attends services at St. John’s Episcopal Church in Boulder, which has described itself as “largely liberal in a largely liberal city.”
The first word the church uses to describe itself on its website and Facebook page is “inclusive,” and St. John’s is led by a female rector. On its website, the church encourages members to write letters to Congress asking for actions addressing climate change. And after the gay nightclub shooting in Orlando, Fla., St. John’s rang its bells 49 times each Wednesday from July 6 to the presidential election, as a way of asking members of Congress to pass stricter gun restrictions and remember each victim.
The Sunday after Gorsuch’s nomination, the early service at the church included a sermon praising diversity as God’s intent and warning against the divisiveness evident in the dysfunction in Washington.
The Gorsuch family is actively involved in the church. The judge occasionally ushers at the 9:30 a.m. service, and his wife, Louise, frequently leads prayers and reads the weekly Scripture. His two teenage daughters have assisted in ceremonial duties as acolytes.
During the service, a clergy member had only praise for Gorsuch, saying he was humble and thoughtful and “very sincere in his beliefs.”
Gorsuch also has presided over weddings.
“It meant a lot to me at the time — still does,” said Ed Hamrick, who attended Columbia University as an undergraduate with Gorsuch.
Hamrick said Gorsuch helped arrange a ceremony at the 10th Circuit Court of Appeals and made sure his bride could enter the courthouse through the judges’ parking lot, so Hamrick wouldn’t see her before the ceremony began.
“At the time it was an awfully nice thing to do for a friend,” Hamrick said. “Now all my wedding guests are calling me again. Is that the guy who married you?”
