[Eugene Volokh] Supreme Court nominee Neil Gorsuch on religious freedom

U.S. Appeals Court Judge Neil Gorsuch delivers makes a point while delivering prepared remarks before a group of attorneys in Denver on Jan. 27. (David Zalubowski/Associated Press)

I’m delighted to hear that Judge Neil Gorsuch has been nominated to the Supreme Court; he and I clerked at the Supreme Court the same year (he clerked for Justices Byron R. White and Anthony M. Kennedy), so I got to know him then and have stayed in touch with him since. I think he’s brilliant, thoughtful and temperate; he has the intellect of Justice Antonin Scalia, but not Scalia’s occasional irascibility — he comes across more Roberts-like than Scalia-like, I would say. He also has, I think, a flair for the written word just as Scalia did, though it manifests itself in a somewhat different style.

Without doubt, he’ll be a conservative, and would maintain the court’s 5-4 mostly conservative philosophy. Just how conservative he will be, and how he will come out on particular matters, I don’t know. But rather than speculating, I thought I’d post an excerpt of one of Gorsuch’s opinions, one that I think well captures his manner and that involves an interesting and accessible subject: Yellowbear v. Lambert (10th Cir. 2014), a case on a prisoner’s religious freedom. You’ll see Gorsuch’s willingness to step back and explain the background principles behind the law, which I think would be especially helpful in Supreme Court cases, which are often read by nonspecialists.

I think you’ll also see some of Gorsuch’s approach to counterarguments, as well as his willingness to demand proof and not just assertion from the government, when the legal test calls for it. In any case, have a look and see for yourself:

Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs or that they are the reason he seeks access to his prison’s sweat lodge — a house of prayer and meditation the prison has supplied for those who share his Native American religious tradition. Yet the prison refuses to open the doors of that sweat lodge to Mr. Yellowbear alone, and so we have this litigation. While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them — at least in the absence of a compelling reason. In this record we can find no reason like that.

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Our story starts with Smith. In Employment Division v. Smith (1990), the Supreme Court held that the Constitution’s Free Exercise Clause does not exempt religious persons from the dictates of neutral laws of general applicability. The devout must obey the law even if doing so violates every article of their faith. When Smith was handed down, some worried that it upset existing free exercise doctrine dating back to Sherbert v. Verner (1963). In Sherbert and its progeny the Supreme Court had suggested that no law, not even a neutral law of general applicability, may “substantially burden” the exercise of religion unless that burden amounts to the “least restrictive means” of achieving a “compelling governmental interest.” … What protections Sherbert appeared to afford religious observances, Smith appeared ready to abandon.

Concerned with just this possibility, worried that Smith left insufficient room in civil society for the free exercise of religion, Congress set about the business of “restoring” Sherbert, at least as a matter of statute. It opened its efforts with the Religious Freedom Restoration Act of 1993. … Passed nearly unanimously, RFRA was (and remains) something of a “super-statute.” … It instructed that all forms of governmental action — state or federal — had to satisfy Sherbert‘s test or risk nullification.

But as it turned out, this marked only the opening lines in what proved to be a long dialogue between Congress and the Court. In City of Boerne v. Flores (1997), the Court held that RFRA stretched the federal hand too far into places reserved for the states and exceeded Congress’s Section 5 enforcement authority under the Fourteenth Amendment. As a result, the Court held RFRA unconstitutional as applied to the states, though still fully operational as applied to the federal government. …

Undaunted, Congress reentered the field soon enough, this time with