Gorsuch’s Selective View of ‘Religious Freedom’

By Garrett Epps

As the Judiciary Committee hearings for Judge Neal Gorsuch begin, I retain my impression that he is in his way a splendid fellow, intelligent and hard working, and, as near as I can tell, devoid of the streak of jack-in-office meanness that mars the legacy of his predecessor, Antonin Scalia.

But I also wonder whether he has a blind spot in an area that should concern Americans—religious freedom. Consider his separate opinion in the Tenth Circuit’s opinion in Burwell v. Hobby Lobby Stores. Remember the issue in Hobby Lobby. Under the Affordable Care Act, employers are required to provide a certain level of health insurance benefits to full-time employees. One of those benefits, under Health and Human Services regulations, is coverage of all medically approved methods of contraception.

The decision of whether to use contraception, and, if so, which method to use, remains with the employee. It is a confidential medical decision. By law neither the employer or anyone else can inquire about it. Nonetheless, the owners of the Hobby Lobby corporation objected on religious reasons to certain forms of contraception, and did not wish to provide insurance that covered them. They challenged the requirement of coverage as a “substantial burden” on their “free exercise of religion.”

The Tenth Circuit held that under RFRA the owners had a right to refuse to provide the coverage; Gorsuch wrote a separate concurrence describing the spiritual issue at stake:

All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear …read more

Via:: The Atlantic


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