Consider two religious-liberty cases Judge Neil Gorsuch ruled on. One case involved a for-profit corporation; the other involved a prisoner. One case was famous; the other obscure. Both explain a lot about Gorsuch.
DEBATE over the nomination of Judge Neil Gorsuch to the Supreme Court has centered on a few questions — what’s his judicial philosophy, or what are his politics? But there is another question we can ask about a judge, one which is more basic than these questions: Is he impartial? That is, does he treat like cases alike?
One way of answering this last kind of question is to look at some cases he has judged, and to see whether he treats different parties — different in status, different in ideological persuasion — the same way. We can do this, in part, by looking at two religious liberty cases Gorsuch has judged. One case involved a for-profit corporation; the other involved a prisoner. One case was famous; the other obscure.
The first case, where Judge Gorsuch wrote a concurring opinion, is one everyone has heard about: the Hobby Lobby case. Although Judge Gorsuch sided with the majority, he wrote separately to emphasize that it was not the court’s business to decide whether the beliefs of the owners of Hobby Lobby were true, or reasonable, or popular. The only question the court had to ask about their religion is whether they were sincere in their belief that complying with the contraceptive mandate was contrary to their religion. Judge Gorsuch concluded that they were sincere.
Hobby Lobby was a case that still bitterly divides people and is usually cast in overtly political terms — siding with Hobby Lobby was conservative, siding with Hobby Lobby’s employees was liberal. Gorsuch sided with the conservatives. But looking just at this one case can be misleading. It doesn’t show whether Gorsuch was siding with the conservatives because he was conservative, or whether it was out of some principle, which he would apply the same way in another case.
And so that brings me to my second case, one which didn’t make the news but which was the subject of a lengthy opinion by Judge Gorsuch. This case dealt with the religious freedom of Andrew Yellowbear, the resident of a Wyoming prison. A more unsympathetic plaintiff is hard to imagine: Yellowbear was sentenced to life for killing his daughter. Even worse, Yellowbear had sued the prison for the right to use the prison’s sweat lodge, something the prison was refusing to him because of the cost and inconvenience of doing so.
It might have been easy in this case, Yellowbear v. Lampert, just to agree with the prison and move on. Few, apart from Yellowbear, would really have noticed — and prisons make plausible claims of administrative convenience all the time. But Yellowbear’s claim was not just for a fringe benefit. In his brief, he explained that in his faith tradition, the sweat lodge is “used to cleanse and purify our mind, our spirit and our bodies.” He filed suit under a statute similar to the one Hobby Lobby sued under in its case.
And Judge Gorsuch treated Yellowbear’s case the same way he did Hobby Lobby’s — indeed, perhaps with even more care. But the bottom line was the same. Was Yellowbear’s faith sincere? If it was, he had a right to bring his claim — even if his religious belief was strange or out of the mainstream. Gorsuch concluded Yellowbear was sincere. What’s more, Gorsuch later in the opinion criticized the prison’s lazy assertions that it couldn’t accommodate Yellowbear’s religion. The prison couldn’t just insist — without evidence — that accommodating Yellowbear was “unduly burdensome.” They had to have proof.
The Yellowbear case is important because it is one of those cases that doesn’t make the headlines, that people don’t notice. But Gorsuch’s opinion demonstrates that he took Yellowbear’s claims seriously, and more to the point, treated them with the same seriousness as he did the claims of the owners of Hobby Lobby.
To be sure, this is only a couple of cases, and in only one area of the law, but it shows that even in a not-so-famous case — a case where maybe not a major governmental program like the Affordable Care Act is at stake, but where it still matters to one person — Judge Gorsuch will apply the law in the same way.