Anyone familiar with Catholic social teaching knows it’s often not a good fit for the left v. right dynamics of American culture, and we got another reminder of the point on Tuesday night with President Donald Trump’s pick of Neil Gorsuch, an Episcopalian, as the next associate justice on the U.S. Supreme Court.
Considered a reliable conservative on most issues, Gorsuch seems likely to align with the Catholic Church’s positions on many matters but create possible heartburn on others. That’s assuming, of course, he survives what could be a bruising fight to approve his nomination in the U.S. Senate.
From a Catholic point of view, Gorsuch’s strong support for religious freedom will strike many as attractive.
As a judge, Gorsuch sided with Christian employers and religious organizations in the cases of Burwell v. Hobby Lobby and Zubik v. Burwell, the main legal challenges to the Obama administration’s contraception mandates, with the latter involving the Little Sisters of the Poor and other Catholic groups.
In the Hobby Lobby case, Gorsuch wrote, “The Affordable Care Act’s mandate requires [such groups] to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.”
In a dissent in the 2007 case Summum v. Pleasant Grove City, Gorsuch found that displaying a religious monument, such as the Ten Commandments, did not obligate a governmental authority to display other offered monuments, such as those from other religions.
In Yellowbear v. Lampert in 2014, Gorsuch said that prison officials violated the religious rights of Andrew Yellowbear, who is of Native American descent, by preventing him access to the sweat lodge, which is critical to his faith.
In broad strokes, Gorsuch also seems opposed to the idea of using the courts to achieve social change that has not been accomplished through the political process.
For instance, he’s said that American liberals’ “overweening addiction” to using the courts for social debate is “bad for the nation and bad for the judiciary.” He cited three issues of direct Catholic interest as examples – gay marriage, school vouchers and assisted suicide.
In a 2006 book called The Future of Assisted Suicide and Euthanasia, he argued for “retaining the laws banning assisted suicide and euthanasia … based on the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”
He also said that “to act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends.”
Gorsuch has not been involved in any rulings that bear directly on the legal status of Roe v. Wade, the 1973 Supreme Court decision legalizing abortion, but most observers regard him as fundamentally sympathetic to the pro-life argument.
Some pro-lifers have voiced concern that Gorsuch has cited rulings led by the late Supreme Court Justice Harry Blackmun, who supported the legality of abortion, has never used the phrase “unborn child,” and has never explicitly spoken out in favor of the pro-life view.
However, Gorsuch did write in his 2006 book that the Supreme Court admitted that “no constitutional basis exists for preferring the mother’s liberty interests over the child’s life,” had the court considered unborn babies to be people.
Gorsuch also authored a strong dissent in the 2016 case of Planned Parenthood Association of Utah v. Herbert, in which a divided circuit court granted Planned Parenthood a temporary injunction after Utah Governor Gary Herbert directed state agencies to stop passing federal funds to the group following the release of videos depicting Planned Parenthood officials illegally selling fetal tissues and body parts.
On another front, given the growing emphasis on the environment in Catholic social teaching, the fact that Gorsuch upheld a set of renewable energy mandates in the state of Colorado, finding that they did not unduly burden out-of-state coal companies, may strike some Catholics as encouraging.
Yet Gorsuch is also known as a skeptic about over-reaching by government bureaucracy, in a way some critics see as hostile to the use of regulatory authority to defend not only environmental protections but also, for example, worker’s rights.
There are areas in which Gorusch’s record may appear troubling from the point of view of Catholic social teaching.
For one thing, he’s generally rejected appeals from death row inmates seeking to avoid execution, and has favored a strict interpretation of the Antiterrorism and Effective Death Penalty Act of 1996. If he brings that approach to the Supreme Court, it would put him at odds with both the Vatican’s and the U.S. bishops’ call for abolition of capital punishment.
Catholics engaged in efforts to use legal pressures to compel corporations to act in socially responsible ways may also be concerned with Gorsuch’s history of protecting businesses from such challenges, including being critical of class action lawsuits by shareholders.
While practicing as an attorney, he wrote, “The free ride to fast riches enjoyed by securities class action attorneys in recent years appeared to hit a speed bump,” and that “securities fraud litigation imposes an enormous toll on the economy, affecting virtually every public corporation in America at one time or another and costing businesses billions of dollars in settlements every year.”
Gorsuch is also not generally seen as a strong advocate of immigrant rights, and last August joined an opinion ruling that Central American immigrants detained for being in U.S. illegally were not entitled to judicial review of their detention.
However, most observers doubt that Gorusch would see his role primarily as pursuing an aggressive personal agenda on the court, since he’s a proponent of conservative legal philosophies that emphasize not going beyond the literal meaning of a statute.
Full story at Crux.