Gorsuch Filibuster? This Might Be the Best Reason for Dems to Oppose Him

How one of his rulings empowers religious bigots to discriminate

Last Updated: March 23, 2017 @ 8:02 PM

If Democrats need a reason to filibuster Neil Gorsuch’s Supreme Court nomination, they may have their best one in the Hobby Lobby decision.

When it came down in 2014, many liberals criticized it for limiting women’s access to birth control. But it also had another, hidden effect: empowering people to use their religious beliefs as a basis for discrimination. Among the victims, so far, is a transgender woman whose firing was deemed legal under the law.

As a federal appeals court judge, Gorsuch co-authored what many court watchers call one of the most radical pro-religious court decisions in recent history. As a judge on the Tenth Circuit Court of Appeals, Gorsuch signed off on the ruling and even wrote his own endorsement.

The Hobby Lobby decision, as affirmed by the Supreme Court in 2014, determined that most American for-profit corporations can flat out ignore federal laws if the owners have religious objections to those laws, as long as they had sincerely held religious objections.

Gorsuch and the Supreme Court said that the owners of the Hobby Lobby crafting company could rely on their anti-abortion religious beliefs to disobey part of the Affordable Care Act (aka Obamacare) requiring them to provide insurance coverage for contraceptives for female employees.

The owners of Hobby Lobby, who employ 21,000, said their evangelical Christian church teaches them that contraceptive devices cause abortions. Judge Gorsuch said that it is not for “secular” courts to second-guess a religious belief.

But the case may extend beyond debates over how birth control works. Critics say that the Hobby Lobby decision by Gorsuch and the Supreme Court opens the door for religious zealots to claim they have the religious right to ignore all sorts of anti-discrimination laws, and start firing pregnant and LGBT workers and avoid hiring women and workers of different religions.

“I do think Hobby Lobby is a departure from settled First Amendment principles,” Virginia Law School Professor Micah Schwartzman told TheWrap.

“It marks a shift toward much greater deference to religion and to less concern” for workers and others who are “might be negatively affected” by the “religious practices” of their employers, Schwartzman said.

This is a sharp departure from the Supreme Court’s previous religious freedom cases, Schwartzman said.

In one key case, United States v. Lee, the Supreme Court said that an Amish man was not permitted to stop paying Social Security taxes for his workers simply because his religious beliefs concluded that government assistance was a “sin.”

The Supreme Court ruled that the government can indeed limit a person’s First Amendment right to religious liberty so long as the government can show that its government program “is essential to accomplish an overriding governmental interest.” The Supreme Court found that Social Security satisfied that test.

“To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good,” wrote Chief Justice Warren E. Berger in the 1982 Lee decision.

Such an analysis is missing from the Hobby Lobby case — because the Hobby Lobby decision was not decided under the First Amendment.

Instead, the case was decided under the federal Religious Freedom Restoration Act. That statute requires courts to apply a test that favors religion and disfavors laws, requiring the court to decide if a law of general application “substantially burden[s] a person’s exercise of religion.”

Gorsuch wrote in his Hobby Lobby concurrence, “It is not for the secular courts to rewrite the religious complaint of a faithful adherent” or to second-guess “whether a religious teaching” is sound; the courts must take the religious objection at face value.

In his opinion, Gorsuch praised the Religious Freedom Restoration Action law for “perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious intolerance.”

UCLA Law School Professor Eugene Volokh believes that “all these complaints about Hobby Lobby are misplaced” and Gorsuch and the Supreme Court simply did what was required under the Religious Freedom of Restoration Act.

“You should be worried about RFRA, not about Hobby Lobby,” Volokh told TheWrap.

Volokh noted that it was a Democrat, not a Republican, who signed RFRA in 1993 — President Bill Clinton.

That may be true, but Clinton’s appointee, Justice Ruth Bader Ginsberg, penned a 35-page dissent in Hobby Lobby.  She asked, “Would the exemption [from the ACA]. . . extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); anti-depressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations?”

As for those predictions that the Hobby Lobby decision signaled to employers that they can start ignoring anti-discrimination laws based on religious objections?

They’re coming true.

In August 2016, a federal judge ruled that the R.G. & G.R. Harris Funeral Homes in the Detroit area was exempt from federal anti-discrimination laws under the Religious Freedom Restoration Act.  The judge ruled that the funeral home could fire a transgender employee because keeping the employee on staff would infringe on the funeral home owner’s Christian beliefs.

The funeral owner “sincerely believes that the ‘Bible teaches that person’s sex (whether male or female) is an immutable God-given gift and it is wrong for a person to deny his or her God-given sex,'” U.S. District Court Judge Sean F. Cox wrote. 

The Hobby Lobby decision may protect a business owner’s religious freedom, but it doesn’t protect workers from the religion of their bosses.

“Hobby Lobby is an anti-religious liberty decision,” said Associate Law Professor Elizabeth Sepper at the Washington University in St. Louis.

Before the Hobby Lobby decision, Sepper told TheWrap, “Bosses couldn’t put their religious beliefs before the rights of their workers.  Hobby Lobby reversed course.”

“How far corporate religious accommodation will extend remains to be seen,” Sepper said, “but women, pregnant workers, and LGBT people are especially likely to find employers resisting their equality.”

If Gorsuch is confirmed to the Supreme Court, he is likely to continue to the legacy of Hobby Lobby, said UC Irvine Law School Dean Erwin Chemerinsky told TheWrap. He predicted that Gorsuch would, like Justices John Roberts, Clarence Thomas, Anthony Kennedy and Samuel Alito, “do little to enforce the establishment clause of the First Amendment … in rejecting the idea of a wall that separates church and state.”

“At the same time, Gorsuch will provide protection for free exercise of religion via the Religious Freedom Restoration Act,” Chemerinsky said. “In other words, Gorsuch will be much like Justice [Antonin] Scalia in finding little to violate the Establishment Clause, but providing protection for those – including corporations – that will discriminate and inflict injury on others on account of their religion.”

Susan Seager is a Los Angeles First Amendment attorney, an adjunct professor teaching media law and intellectual property at the University of Southern California, and columnist for Dan Abrams’ Law Newz. Before starting her own private practice, she was a vice president in the litigation department of Fox Entertainment Group in Century City, where she oversaw litigation involving Fox Television Stations, Twentieth Century Fox Film Corp., and National Geographic. Her areas of practice include defamation, privacy, right of publicity, copyright, reporter subpoenas, and SLAPP litigation. Before working for Fox, she worked as an attorney for Davis Wright Tremaine in Los Angeles. One of her recent articles for the American Bar Association Communications Lawyer was “Donald Trump is a Libel Bully but also a Libel Loser.”