by Ken Burrows
Neil Gorsuch, President Donald Trump’s pick to fill the Supreme Court vacancy left by the February 2016 death of Justice Antonin Scalia, has promised to be a “faithful servant of the Constitution” and is known to be, like Scalia, a proponent of originalism. Originalists in this sense are said to be judges who interpret the words of the Constitution as they were understood at the time they were written—in other words, what did the drafters of the document originally intend in what they wrote?
Gorsuch also has been quoted, in a talk before an audience at Case Western Reserve University School of Law in Cleveland, as saying that while legislators may appeal to their own moral convictions to shape law, judges should not. Rather, he said, judges should use history to understand what the law is but “not decide cases based on their own moral convictions.”
So it seems at first glance that Gorsuch would generally keep his personal moral beliefs out of his judicial decision making. In addition, he would look to the recorded views of relevant Founders to discern what intents and meanings they infused into the Constitution and other significant documents, and thus what original intents of theirs are applicable to today. If he in fact did this, Gorsuch would tend to support keeping church and state separate, just as the Founders advocated.
Does Gorsuch’s history on the bench and his other writings and speeches exhibit such a position?
The short answer is: Not with any consistency.
To examine the evidence for this inconsistency, let us first briefly review what two key Founders said about church-state separation. James Madison is known as the key draftsman of the Constitution. A close colleague of his, Thomas Jefferson, is known as the author of the Declaration of Independence and the seminal legislative measure separating church and state—his Virginia Statute for Religious Freedom. As will be noted below, Gorsuch relies specifically on the Declaration to undergird one of his most publicly known advocacies on an issue that often involves the church-state realm.
Madison’s views on the proper relationship between government and religion were enduringly spelled out in his 1785 Memorial and Remonstrance Against Religious Assessments, a 15-point opposition to a proposal by Patrick Henry to use state funds to pay teachers of the Christian religion. In this he said no civil magistrate should employ religion to determine civil policy because this would be “an unhallowed perversion of the means of salvation.”
Nearly 40 years later, in a letter to Edward Livingston, Madison lauded Livingston for advocating an “immunity” between religious and civil matters and wrote: “This has always been a favorite principle with me … I have no doubt that every new example will succeed, as every past one has done, in showing that religion and government will both exist in greater purity the less they are mixed together.”
In a post-presidency Detached Memorandum, Madison continued to issue cautions that separation protocols were not being adequately adhered to under the First Amendment, and he particularly warned against permitting religion to become “the means of abridging the natural and equal rights of all men.”
Jefferson of course is often cited for his 1802 letter to the Danbury Baptists in which he said the language of the First Amendment “[builds] a wall of separation between church and state.” Like Madison, he too castigated any effort by civil operatives to impose religious duties or religiously based limitations on citizens because such actions constitute an attempt by “fallible and uninspired men” to assume dominion over the faith of others. He closed by saying for a civil magistrate to do so “is a dangerous fallacy, which at once destroys all religious liberty.”
In his Virginia Statute for Religious Freedom, Jefferson stated flatly that “our civil rights have no dependence on our religious opinions.” He emphasized the same opposition to religiously based harm as Madison when he said using religion to withhold another individual’s rights “is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right.”
(In singling out the potential for harm that results from giving undue preference to religion, both Madison and Jefferson echo the concept promoted by John Locke in the 17th century known as the “no-harm rule,” which essentially holds that the free exercise of rights is not absolute and cannot be used to justify harm to fellow citizens. Locke called this principle indispensable to ordered liberty. It was among many of his ideas that influenced the Founders. Reverend John Witherspoon, a signer of the Declaration of Independence, reaffirmed the concept when he said in 1805 that the true notion of liberty requires that citizens exercise their rights in a way “that they may not be injurious to one another.”)
Gorsuch’s more equivocal position
While Madison and Jefferson left no doubt where they stood on the relationship between religion and government, Gorsuch’s perspective is not so clear cut. Prior to the case reaching the Supreme Court, he sided with the private corporation Hobby Lobby in endorsing its claim to a religious exemption to the requirement for contraceptive coverage in the Affordable Care Act (ACA). This position effectively empowered the religious belief of a few to limit the legislated rights of many to certain health care benefits, violating the no-harm rule.
Yet as part of his first public statements upon being nominated to the Supreme Court, Gorsuch said: “It is the role of judges to apply, not alter, the work of the people’s representatives.” But he favored altering what the people’s representatives created in the ACA, by carving out special exemptions in religion’s name. Consistent? Hardly.
He acted similarly in joining a dissenting opinion when the 10th Circuit Court rejected a claim by the Little Sisters of the Poor on the same ACA-required contraceptive coverage. The plaintiffs had already been given an exemption to directly providing the coverage, with the government stepping in to do so, as long as they stated their objection in writing. They contended that even stating their objection violated their religious freedom, and Gorsuch agreed.
Gorsuch has also voted to uphold the constitutionality of government-sponsored religious displays, contending in one case that the Ten Commandments can be said to convey a secular message, despite their clear religious lineage. In another opinion endorsing the erection of crosses on public property, he suggested that crosses do not promote religion, and he went so far as to question whether it is actually unconstitutional for government to endorse religion. Scalia too had said it’s a false notion that government cannot favor religion over non-religion. So here are two self-described “originalists” who appear unpersuaded by Jefferson’s insistence that “fallible and uninspired men” in government should have no place promoting religious precepts to the public.
Gorsuch’s “secular moral” perspective
Gorsuch’s thinking is further blurred through his appeals to an oddly fashioned secular morality. Which is not to say secular morality doesn’t exist—indeed it does—but it is often distinct from religious morality. The two are sometimes actually at odds. But Gorsuch blends religious and secular together into what he himself calls a “secular moral” theory. For instance, he argued in his opinion supporting Ten Commandments displays on public property that such displays are constitutional because they convey a “secular moral message” (as opposed to a strictly religious message). Surely he knows this situational “laicizing” of religious iconography has been a common tactic employed in efforts to breach the church-state wall.
Adopting this kind of linguistic parsing—some would call it linguistic manipulation—exhibits all the signs of someone seeking a way to justify handing religion undue preference in civic matters. At a minimum, it shows a willingness to mix the two in ways contradictory to the Founders’ intents.
Dogmatism gets personal
If Gorsuch’s “secular moral” approach to church-state issues is unsettling in the broad political and societal arena, it is equally, if not more, troubling when he adopts it to justify embracing dogmatic positions on the concept of medical aid in dying. In his book on the subject, The Future of Assisted Suicide and Euthanasia, he states: “The intentional taking of human life by private persons is always wrong” [italics added], leading him to be firmly opposed to death with dignity laws. He has said his reasons are rooted in his belief in the “inviolability” of human life. He has gone so far as to suggest there may be a constitutionally enforceable right to life.
Recall this comes from a man who has elsewhere said judges should not decide cases based on their own moral convictions. But would he be able to set side such a dogmatic moral conviction in deciding a case on aid in dying?
And how does he arrive at this inviolability-of-life principle? To begin with, not from the Constitution but from practical experience and “natural law” as Gorsuch sees it expressed in the Declaration of Independence. He points out the document speaks of self-evident truths that all people are created equal and enjoy unalienable rights, one of them being “life.” Gorsuch interprets this to mean that this founding document was intended to establish a government that would protect the self-evident truth of the individual’s “impulse for life.”
“We seek to protect and preserve life for life’s own sake,” Gorsuch writes, and it’s evident in most everything we do, from our laws to our governmental programs to our care for the ill and on and on. This is evidence, he says, that “life itself is a basic good.”
Turning a right into an obligation
Almost no one would argue with the general statement that life is a basic good. But by what leap of civics or faith does an individual’s “right” to life transform into the individual’s “obligation” to live? What happens to the individual when life turns irretrievably, painfully bad? When living is simply a prolonged, insufferable death? Gorsuch in his book specifically says he is not discussing ending of life that occurs in war or with capital punishment because these raise “unique questions all their own.” But doesn’t someone coming face-to-face with an agonizing dying process raise unique questions as well?
At one point he frames the issue as one of unequal treatment, saying aid-in-dying laws treat the lives of the terminally ill differently from all other lives. But given that such laws are permissive and not prescriptive, this is a rather specious argument. As long as aid-in-dying laws are carefully drawn to define eligibility and prevent abuse, it can hardly be a mistreatment to make available an option—just an option—to minimize suffering. On the contrary, that has the potential to enhance dignity. That’s why it’s called death with dignity.
Gorsuch also wrote in his book that another of the Declaration’s self-evident truths is the “value of liberty.” Further, that the ideal of human equality in the Constitution is grounded on “the belief that all persons innately have dignity and are worthy of respect.” How does one assure “liberty” and “dignity” to the individual by adhering to a personal moral belief that denies both to the sufferer? How does that give “respect” to such a person? Plus, liberty is empty without the accompanying autonomy that enables one to exercise it. There is arguably no greater need for autonomy in one’s life than when one seeks to avoid a futile, prolonged, undignified and painful process leading to life’s end. Gorsuch appears more than ready to withhold such autonomy.
The signs are ominous
The potential ramifications of Gorsuch’s dogmatism on aid in dying are deeply disturbing with regard to individuals who would be affected. It’s also disturbing with regard to what it suggests about his judicial thinking on church-state separation. Because it ominously hints at a willingness to defer too easily to selective morality, which often arises as selective religion, when an issue of individual rights and liberty conflicts with moral tenets. He’s already shown such deference with the court cases mentioned earlier on contraceptive coverage exemptions and Ten Commandments displays on government property.
Not much has been reported on Gorsuch’s views on issues like abortion, same-sex marriage, or LGBT rights, but his easy deference to “religious freedom” claims does not inspire comfort or confidence among people who place high priority on gains won and/or still sought on these issues. Such matters routinely involve clashes between individual rights and religious challenges to those rights, and it is apparent which way Gorsuch leans in such conflicts.
Advocates of church-state separation have ample cause for concern about how Gorsuch would handle a host of issues likely to come before the Supreme Court during his tenure on it. If he is not persuaded by the original intents of Founders such as Madison and Jefferson on the mingling of church and state, and as he expresses his moral theories in absolute terms, he would do well to take to heart the words of another American from a more recent past, theologian Reinhold Niebuhr, who observed: “Religion is so frequently a source of confusion in political life, and so frequently dangerous to democracy, precisely because it introduces absolutism into the realm of relative values.”