New voice on the right

As a younger man, U.S. Supreme Court Justice Neil Gorsuch clerked for swing vote Justice Anthony Kennedy. But in his short time as Kennedy’s colleague—Gorsuch joined the high court in April and the term wrapped up at the end of June—he has set up camp away from his judicial mentor and on the most conservative side of the court alongside Justices Samuel Alito and Clarence Thomas. On the final day of the court’s term, he joined Alito and Thomas in several major concurrences or dissents. “Everything liberals feared and more,” proclaimed a Slate headline.

Four cases from the final day of the term are particularly revealing: Gorsuch showed a commitment to a limited view of the judiciary, an expansive view of religious exercise, and some interesting approaches to gay rights. The cases involved President Donald Trump’s travel ban, a major ruling on church-state relations, a ruling on same-sex spouses and birth certificates, and the court’s decision to hear the case of a Christian baker who refused to create a wedding cake for a same-sex wedding.

Trump v. International Refugee Assistance Project: The Supreme Court agreed to hear the case against Trump’s executive order on immigration in the fall and in the meantime largely removed the lower court injunctions against it. But the court ruled that foreign nationals from the six blocked countries could enter the country if they had “bona fide” connections in the United States.

Thomas wrote a dissent that Gorsuch and Alito joined, arguing for a full lifting of the injunction against the ban. They argued that the court’s middle ground solution was too vague and “unworkable.” They said it would invite more litigation over what qualified as a bona fide connection—and they were right, as the American Civil Liberties Union and others filed lawsuits over the Trump administration’s interpretation of a “bona fide” relationship shortly after the Supreme Court ruling.

Trinity Lutheran Church of Columbia v. Comer: The Trinity Lutheran case, in which a 7-2 court said religious institutions should be eligible for public aid, was perhaps the biggest ruling from the past term. Missouri now must make the church day care at the center of the case eligible for a state program that provides recycled tires for playground surfaces.

This case could potentially bring down state Blaine amendments, provisions that generally block government aid to religious institutions. States added Blaine amendments in the late 1800s, in a time of hostility to Catholics, partly to prevent any public funds from going to Catholic schools. Thirty-five states, including Missouri, have Blaine amendments on the books.

“Challenges can be brought” if states continue to interpret their Blaine amendments as Missouri did, Alliance Defending Freedom lawyer David Cortman told me. Cortman successfully argued Trinity Lutheran’s case at the Supreme Court. The day after the ruling, the court vacated and remanded cases involving school vouchers and textbook aid to religious schools “in light of Trinity Lutheran”—indicating how far this case might reach.

But Gorsuch found reason for concern in the reasoning behind Trinity Lutheran. He wrote a concurrence that Thomas joined saying the court had a much too limited view of free exercise of religion. The court had drawn a line, allowing state aid for groups with religious “status,” but not for religious “use.” States could still block a student from using state aid to study theology.

“Is it a religious group that built the playground?” Gorsuch asked. “Or did a group build the playground so it might be used to advance a religious mission? … I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.”

Masterpiece Cakeshop v. Colorado Civil Rights Commission: Gorsuch’s broad view of religious exercise in the Trinity Lutheran case could be a good sign for the Christian cake baker in the major case pitting gay rights against religious freedom that the Supreme Court agreed on its final day to hear next term.

The Masterpiece Cakeshop case is the result of a lawsuit a gay couple brought against Christian baker Jack Phillips, who declined to make a wedding cake for the couple in 2012. Several other Christians running businesses in the wedding industry—photographers, florists—have similar cases pending or already resolved against them.

The court needs four votes to hear a case, and it’s not clear whether Gorsuch cast a key vote to hear Masterpiece. The court had “re-listed” the case many times since last year, which means the justices had the case on their list to consider for their regular conferences but kept deferring it. The court re-listed the case 10 times after Gorsuch joined the bench, so it seems unlikely that he was the deciding vote to hear the case. Something else was at work behind the scenes delaying the case.

As a judge on the 10th U.S. Circuit Court of Appeals, Gorsuch showed a willingness to protect religious freedom of business owners when Burwell v. Hobby Lobby came to his desk. The Hobby Lobby case, in which a 5-4 Supreme Court ultimately granted a religious exemption to closely held for-profits, might have laid the groundwork for Masterpiece. Though that case was about contraceptives and abortifacients, a number of gay rights groups recognized the implications of a decision in favor of for-profit religious objectors.

Lambda Legal Defense and Education Fund, the American Civil Liberties Union, DignityUSA, and the Global Justice Institute among other gay rights groups filed amicus briefs on the side of the government in Hobby Lobby. Lambda, in its amicus brief, argued religious exemptions for companies would “open the door to increased use of religion to deny LGBT persons, those with HIV, and other vulnerable minorities equal compensation, health care access, and other equitable treatment in commercial interactions.”

At the time, Gorsuch sided with Hobby Lobby, a decision the Supreme Court later upheld. But he may have a complex view of gay rights. He attends an Episcopal Church that embraces gay marriage, and as a circuit judge he had two openly gay clerks. One of those clerks and another gay friend publicly defended his position on gay rights when he was going through the confirmation process.

Pavan v. Smith: One more ruling from the court’s action-packed last day might help reveal Gorsuch’s view on gay rights. The Supreme Court ordered Arkansas to list same-sex spouses on birth certificates. Gorsuch penned a dissent, and ThinkProgress immediately labeled him “anti-LGBTQ.” The case is slightly more complicated.

The Arkansas birth certificate statute in question presumes for a married couple that the husband is the father of the child, and automatically puts his name on the birth certificate. The state biology-based birth certificate statute has exceptions: If a married couple conceived a child through a sperm donor, the husband would file paperwork agreeing to be listed as the father.

For an adopted child, the Arkansas Department of Health lists the biological parents on a birth certificate that is sealed, and then issues a new birth certificate listing the adopting parents. A single mother is not required to list the father on the birth certificate.

Two lesbian couples had babies via artificial insemination from an anonymous sperm donor, and when the Arkansas Department of Health didn’t list the female spouses alongside the mothers on the babies’ birth certificates, the couples sued. They argued that Arkansas’ law was unconstitutional in light of Obergefell v. Hodges, the Supreme Court ruling that forced states to recognize same-sex marriage. The Supreme Court agreed.

Oddly enough, the couples in the case didn’t challenge the artificial insemination exception as unconstitutional. They challenged the entire birth certificate statute as unconstitutional. In the meantime, the state issued birth certificates with the same-sex spouses’ names and agreed that it needed to update its artificial insemination provision.

Gorsuch penned a dissent on the haphazard way the Supreme Court handled the case and its decision to reject the entire birth certificate statute without hearing oral argument on an unsettled area of the law.

“A summary reversal is reserved for situations where there is no doubt about the application of settled law to the particular set of undisputed facts, and the decision below is clearly in error,” said Rena Lindevaldsen, a law professor at Liberty University School of Law who has been involved in a number of cases to preserve traditional marriage. The per curiam decision “was used to expand the reach of Obergefell,” she added.

Thomas and Alito joined Gorsuch’s dissent, while Chief Justice John Roberts was notably absent. Gorsuch argued that it was “far from clear” that the case warranted the “strong medicine of summary reversal” because the details aren’t settled about how Obergefell would work out in specific instances like birth certificates.

“On appeal, the state supreme court simply held that this overbroad remedy wasn’t commanded by Obergefell or the Constitution,” Gorsuch wrote. “And, again, nothing in today’s opinion for the court identifies anything wrong, let alone clearly wrong, in that conclusion.”

The case doesn’t shed light on Gorsuch’s personal views on Obergefell, which he didn’t question, but his dissent showed some wariness on using the courts to advance gay rights. Gorsuch summarized the state’s arguments, that “rational reasons exist for a biology-based birth registration regime, reasons that in no way offend Obergefell.” He referred several times to birth certificates as a “biological record,” an approach to the issue that is not a big surprise coming from someone who studied under natural law professor John Finnis at Oxford University.