A year ago this week, our nation lost a true patriot and a titan of the law: Justice Antonin Scalia. Justice Scalia was among the most consequential jurists of the last century. By exercising a philosophy of judicial self-restraint, he transformed the legal landscape and affirmed that a judge’s proper role under our Constitution is to say what the law is — not what he wants it to be. Justice Scalia’s successor will have large shoes to fill, but I believe Judge Neil Gorsuch is more than up to the task. Just as Justice Scalia devoted his life to the Constitution and the rule of law, Judge Gorsuch has dedicated his career to protecting our most basic rights under the Constitution, including the right of conscience.
Throughout his tenure on the federal bench, Judge Gorsuch has demonstrated repeatedly that he is willing to apply the law fairly to protect the religious liberty of all Americans, including religious minorities. For example, in Yellowbear v. Lampert — a case involving a Native American prisoner’s religious freedom — Judge Gorsuch wrote an eloquent opinion affirming that even incarcerated individuals, though stripped of many civil liberties, maintain the right to exercise their religion freely and without interference. Justice Sonia Sotomayor cited Judge Gorsuch’s Yellowbear opinion in her concurrence in Holt v. Hobbs, a Becket Supreme Court victory that unanimously vindicated the rights of a Muslim prisoner to wear a religious beard. And Judge Gorsuch has similarly held in favor of a Muslim prisoner seeking access to religiously required meals.
In two cases involving the Department of Health and Human Services’ contraceptive mandate, Judge Gorsuch also asserted the primacy of religious liberty. In Becket’s Hobby Lobby case, he joined the majority’s opinion in favor of the arts and crafts store and also wrote separately to emphasize the substantial burden on the Green family’s religious exercise imposed by the mandate. And in Becket’s Little Sisters of the Poor case, he similarly voted in favor of the nuns in their challenge to the same HHS mandate as applied to nonprofit religious ministries. Given his strong record as an appellate judge, we can expect that Judge Gorsuch would continue to uphold the right of conscience while serving on the Supreme Court.
Judge Gorsuch’s nomination is a victory for religious liberty, but we shouldn’t celebrate just yet. Although Judge Gorsuch is eminently qualified to serve on the Supreme Court, getting him confirmed is the next battle in the fight for religious freedom. In that endeavor, another religious liberty giant, Utah’s own Sen. Orrin Hatch, will play a pivotal role.
There’s a reason Judge Gorsuch asked to meet with Hatch as one of his very first visits on Capitol Hill: Perhaps more than any other member of the Senate, Hatch will be instrumental in getting Gorsuch confirmed. As the committee’s former chairman and its longest-serving member, Hatch has been on the front lines of the most consequential Supreme Court battles of our time. He has decades of experience and an unparalleled record of success in shepherding principled judges through the perilous confirmation process. He passionately defended my former boss, Justice Clarence Thomas, against his partisan detractors and was equally critical in dismantling the blockade against my other former boss, Justice Samuel A. Alito Jr.’s nomination.
In Judge Gorsuch, we have a gifted jurist with a record of protecting religious freedom for all Americans and one who will likely continue to do so on the Supreme Court. And in Hatch, we have an experienced senator who will help get him there.
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