Gorsuch Could Undermine Trump Travel Ban

When he was on the Tenth Circuit, Judge Gorsuch ruled that a corporation could have religious rights. That same expansive view of religious freedom could prompt a Justice Gorsuch to void Trump’s travel ban.

March 21, 2017

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

Unless something peculiar happens, I fully expect Judge Gorsuch will become Justice Gorsuch. So what can we expect when he’s on the Supreme Court?  His position in the Hobby Lobby decision may offer some clues.

As I wrote in my book Corporate Citizen, the conclusion by the Supreme Court in Hobby Lobby is problematic from a number of vantage points.  When Judge Gorsuch was on the 10th Circuit, he joined the majority of the en banc panel to give Hobby Lobby victory in the case. He also wrote a separate concurrence, which raises both promising and troubling clues about how he might wield judicial power on the nation’s highest court.

Here’s a quick recap of Hobby Lobby: The Green family owns a closely-held corporation called Hobby Lobby, which sells crafting supplies.  The Greens objected to the Affordable Care Act’s (perhaps more commonly known as ACA or Obamacare) requirement that employers provide contraceptive coverage for women as part of their health care coverage. In particular, the Greens argued that certain birth control methods were really abortifacients and offended the Green’s religion.  But refusing to provide the full complement of birth control coverage opened Hobby Lobby to a raft of substantial monetary penalties. The plaintiffs argued that not only did the Greens have a religious objection to the ACA, so too did Hobby Lobby, the corporation.

Hobby Lobby won in the 10th Circuit and in the Supreme Court. Majorities in both courts came to the remarkable conclusion that Hobby Lobby, a private for-profit corporation, could have religious beliefs and legitimate religious objections to the law.  Gorsuch supported this expansion of corporate rights. Court watchers should keep an eye on whether he further grows corporate rights in this area. 

In Hobby Lobby, both courts were content to use the Religious Freedom Restoration Act (RFRA) to empower corporations with religious consciences. One way that a future court could expand on Hobby Lobby’s foundation is to apply it to publicly-traded corporations, and not just closely-held corporations. And the next and big logical step for the Supreme Court is to cut the pretense of relying on RFRA, and give for-profit business corporations full religious exercise rights under the First Amendment. That would be a grave mistake, since the last time I checked, a corporation is really a pile of papers without a conscience.

But here’s the silver lining in Gorsuch’s Hobby Lobby concurrence, assuming he was being sincere.  He wrote of the Religious Freedom Restoration Act, “[t]he Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

If he’s serious, then Gorsuch’s embrace of religious tolerance could be critical when the Supreme Court considers President Trump’s Executive Order banning travel from certain Muslim-majority countries. (Seven nations in the first version of the Executive Order, and six in the second.)

Two lower courts, one in Virginia ruling on the first version of the travel ban and one in Hawaii ruling on the second, have already these prohibitions are likely violations of the Establishment Clause and represent unconstitutional discrimination against Muslims.  As the Court in Virginia wrote: “The Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution.”  The Hawaii judge had similarly pointed language about religious discrimination: "a reasonable, objective observer ... would conclude that the Executive Order was issued with a purpose to disfavor a particular religion[.]"

What’s unclear from Judge Gorsuch’s Hobby Lobby opinion is whether he merely viewed the Green’s religious views favorably because they matched his own. But if he really believes that the federal courts should protect unpopular religious beliefs, then a Justice Gorsuch may provide a necessary vote to check the administration’s thinly-veiled and unconstitutional Muslim ban. Let’s hope he can empathize with religious objections when they don’t come from a rich corporation, but rather are advanced instead by a poor refugee yearning to breathe free.

(Image: Flickr.com/David Merrett)