Gorsuch defends religious liberty ruling in hearing

March 23, 2017

Neil Gorsuch steadfastly refused to provide judge-like commentary on such issues as abortion and assisted suicide in his confirmation hearings, but he was not reluctant to explain his ruling in a vital religious liberty case.

President Trump’s nominee to the U.S. Supreme Court answered questions about his role in supporting the free exercise of religion rights of Hobby Lobby Tuesday (March 21) as a member of the 10th Circuit Court of Appeals in Denver. Gorsuch responded to questions about the religious liberty case from both Democrats and Republicans during 10 hours of questioning by the 20 members of the Senate Judiciary Committee.

Gorsuch – who has served on the 10th Circuit Court for more than 10 years – freely offered his view of an opinion he participated in. He declined, however, several opportunities to comment on issues, including abortion and physician-assisted suicide, he has yet to rule on and may appear in cases before him in the future.

On April 3, the Judiciary Committee is expected to send Gorsuch’s nomination to the full Senate, where the central question would appear to be whether Republicans have enough votes to overcome an expected Democratic filibuster. The GOP majority has 52 members, but 60 votes are required to halt a filibuster and vote on confirmation. If the GOP falls short, it can hold a vote to change the rules and confirm Gorsuch by a simple majority.

The 10th Circuit Court, with Gorsuch writing a concurring opinion in the majority, ruled in favor of Hobby Lobby in 2013 in the arts and crafts chain’s challenge to the Obama administration’s abortion/contraception mandate. The mandate required employers to provide coverage for contraceptives that can potentially cause abortions. The next year, the Supreme Court affirmed the appeals court opinion, upholding objections by “closely held,” for-profit companies such as Hobby Lobby, which is owned by the Green family.

In response to Sen. Orrin Hatch, R-Utah, Gorsuch agreed the Religious Freedom Restoration Act (RFRA), a 1993 federal law at the heart of the case, protects individuals with minority religious beliefs as much as for-profit corporations owned by evangelical Christians.

RFRA — which requires the government to have a compelling interest and use the narrowest possible means in burdening a person's religious exercise – also “applies to Little Sisters of the Poor [a Roman Catholic order of nuns that serves the needy] and protects their religious exercise,” Gorsuch said.

In addition, the 10th Circuit “held [RFRA] applied to a Muslim prisoner in Oklahoma who was denied a halal meal,” Gorsuch told Hatch. “It’s also the same law that protects the rights of a Native American prisoner who was denied access to his prison sweat lodge, it appeared, solely because of a crime he committed, and it was a heinous crime. But it protects him too. I wrote the [opinion in the] Native American prisoner case and wrote a concurrence in the Muslim case.”

President Clinton signed RFRA into law after a broad coalition of religious freedom advocates – including the Southern Baptist Christian Life Commission, now the Ethics & Religious Liberty Commission (ERLC) — pushed for the measure in response to a heavily criticized Supreme Court decision and following nearly unanimous approval by Congress.

Steven Harris, the ERLC’s director of advocacy, told Baptist Press, "Judge Gorsuch has consistently demonstrated a robust and insightful understanding of religious liberty in America.

“Throughout his comments during confirmation hearings, I was encouraged by his willingness to address the issue head-on,” Harris said in written comments, “and I believe that such is indicative of his commitment to the laws of religious liberty that undergird our democracy."

Some Democratic committee members challenged Gorsuch’s opinion – and that of the 10th Circuit majority – that RFRA protects the religious free exercise of for-profit businesses.

With RFRA, “Congress was dissatisfied with the level of protection afforded by the Supreme Court under the First Amendment to religious exercise,” disagreeing with the late Associate Justice Antonin Scalia’s opinion in a 1990 case, Gorsuch told Sen. Richard Durbin, D-Ill. As a result, Congress drafted – and approved – “a very, very strict law, and it says that any sincerely held religious belief cannot be abridged by the government without a compelling reason and even then it has to be narrowly tailored, strict scrutiny, the highest legal standard in American law,” he said.

“Hobby Lobby came to court and said, ‘We deserve protections too,’” Gorsuch recalled for Durbin. “We looked at the law, and it says any person with a sincerely held religious belief is basically protected.  . . .  What does ‘person’ mean in that statute? Congress didn’t define the term. So what does a judge do?  . . .  He goes to the Dictionary Act [a law that defines terms when they aren’t otherwise defined], and [in] the Dictionary Act, Congress has defined person to include corporation. So you can’t rule out the possibility that some companies can exercise religion.”

The Supreme Court agreed the federal government had a compelling interest, so the question became whether the Obama administration’s action was “narrowly tailored” regarding the Green family’s objections, he said.

“And the answer there the Supreme Court reached in precedent binding on [the 10th Circuit] now, and we reached in anticipation, is: No, that it wasn’t as strictly tailored as it could be because the government had provided different accommodations to churches and other religious entities,” Gorsuch said. “[T]he government had accommodated that with respect to other religious entities and couldn’t provide an explanation why it couldn’t do the same thing here.”

Gorsuch told Durbin, “Now Congress can change the law  . . .  eliminate RFRA all together. It could say that only natural persons have rights under RFRA. It could lower the test on strict scrutiny to a lower degree of review if it wished.

“[I]f we got it wrong, I’m sorry,” he said. “But we did our level best, and we were affirmed by the United States Supreme Court.”

Michael Whitehead — a Southern Baptist lawyer in Kansas City whose practice focuses on religious liberty and non-profit organization law – said Democratic senators “seem to have ‘buyer’s remorse’ about RFRA.”  

“A nearly unanimous Congress passed the bill, and it was proudly signed by President Clinton in 1993,” said Whitehead, who was the Christian Life Commission’s general counsel at the time, in a written statement for BP. “Today they act like they were tricked into adopting it, and they wish they could rewrite it to exclude firms like Hobby Lobby.  

“As Judge Gorsuch instructed them, Congress made the law, and Congress can change the law, but the Supreme Court has now interpreted the law to include firms like Hobby Lobby, upholding the definition used by Judge Gorsuch and the 10th Circuit majority,” Whitehead said.

On abortion, Gorsuch declined to comment on the 1973 Roe v. Wade decision that legalized abortion.

Sen. Lindsey Graham, R-S.C., asked Gorsuch about the first time he met Trump before his nomination: “In that interview, did [Trump] ever ask you to overrule Roe v. Wade?”

“No, senator,” Gorsuch replied.

“What would you have done if he had asked?” Graham said.

“Senator, I would have walked out the door,” the nominee responded. “That is not what judges do. They don’t do it at that end of Pennsylvania Avenue [at the White House], and they shouldn’t do it at this end [at the Capitol] either, respectfully.”

Regarding physician-assisted suicide, Gorsuch responded to questions about a book he wrote on the subject before he became a judge. The 2006 book, The Future of Assisted Suicide and Euthanasia, argues against legalization of the end-of-life practices. He was speaking as a commentator, not a judge, at the time, he told committee members.

He agrees with the Supreme Court’s companion rulings in 1997 that left the legalization of assisted suicide with the states.

In his book, Gorsuch told Sen. Chris Coons, D-Del., he was concerned what legalization “might mean for the least amongst us, the most vulnerable, the disabled, the elderly who might be pressured into accepting an early death because it’s a cheaper option than more expensive hospice care.”

Trump nominated Gorsuch, 49, to the high court in late January, nearly a year after the death of Scalia. Like Scalia, Gorsuch espouses a philosophy and record of interpreting the Constitution and laws based on its original meaning and their text, respectively.

The ERLC sponsored a letter Feb. 1 in which more than 50 Southern Baptist and other evangelical leaders called for confirmation of Gorsuch. The signers said they believe Gorsuch’s judicial philosophy meets the thresholds of their “core social principles.” Those precepts include in the Supreme Court’s purview “the protection of the unborn, the strengthening of religious liberty, and a dedication to human flourishing – which we believe can only be accomplished by a biblical definition of marriage and family,” they said.

Tom Strode

Tom Strode serves as a correspondent for Baptist Press. Tom and his wife, Linda, have been married since 1978. They have two children with wonderful spouses and five grandchildren. He is a graduate of the University of Missouri and Mid-America Baptist Theological Seminary. Linda and he live in Nashville, Tenn. Read More by this Author

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24