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A Deep Bench for SCOTUS Fans: The Rookie Justice Hits It Out of the Park


Gorsuch made strong arguments for broad application of the Free Exercise Clause noting that it, “guarantees the free exercise of religion, not just the right to inward belief (or status).” In a swipe at the majority’s distinction between a person’s religious status as a believer receiving a government benefit and the person’s use of the government benefit for religious purposes, he wrote, “I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.”

But Gorsuch’s critique of the majority didn’t stop there.

“I am unable to join the footnoted observation… that ‘[t]his case involves express discrimination based on religious identity with respect to playground resurfacing.’ Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are ‘governed by general principles, rather than ad hoc improvisations.’ … And the general principles here do not permit discrimination against religious exercise — whether on the playground or anywhere else.”

Essentially, the rookie justice was telling his six colleagues that they drafted the opinion too narrowly, and that he thought the free exercise principles applied more broadly. This is fantastic news for people of faith, who can look forward to the Constitution protecting their religious exercise, even outside of the church building and playground.

Gorsuch was also the only justice who joined Thomas’s opinion on a gun rights case that the court refused to take. “For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense.”

Not only are Justices Thomas and Gorsuch aligned on the issue of free exercise, gun rights, and Trump’s travel ban, but touchy issues like marriage. In a dissent also signed by Justices Thomas and Samuel Alito, Gorsuch was upset that the majority in the court allowed same-sex partners to appear on birth certificates without ever hearing the case. In the batch of decisions released yesterday, six justices (including John Roberts and Anthony Kennedy) held that Arkansas was infringing on “the constellation of benefits that the States have linked to marriage” by refusing to include the names. “To be sure, Obergefell addressed the question whether a state must recognize same-sex marriages,” Gorsuch wrote in his dissent. “But nothing in Obergefell spoke (let alone clearly) to the question whether §20–18–401 of the Arkansas Code, or a state supreme court decision upholding it, must go. It seems far from clear what here warrants the strong medicine of summary reversal.”

In 2005, Gorsuch wrote an op-ed in National Review accusing liberals of using the courts “as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide.” Obviously, we don’t know how the newest justice will rule on every issue, but this is certainly an encouraging sign that he refuses to be an activist pawn in the Left’s court-centric agenda.


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