Left-Wing Letter Against Gorsuch—Part 2

by Ed Whelan

Before continuing my section-by-section response to the LCCHR letter against Supreme Court nominee Neil Gorsuch, I’d just like to observe that one of the most galling aspects of the letter is its signatories’ purported opposition to “litmus tests.” Never mind its failure to distinguish between tests of judicial philosophy and tests of political ideology. The larger scandal is that the LCHHR letter is nothing more than a series of political litmus tests.

The letter rarely acknowledges, much less engages, Gorsuch’s legal reasoning and instead persistently objects (even if wild distortions are required to do so) to the results that he reaches. In its manifest contempt for legal reasoning, the letter thoroughly discredits every organization that has signed it.

Back to the letter’s specific claims:

“Women’s Health”: It’s no surprise that LCCHR goes way off the deep end here.

Of the Tenth Circuit’s decision in Hobby Lobby Stores v. Sebelius, LCCHR says that Gorsuch “signed on to an opinion allowing certain for-profit employers to refuse to comply with the birth control benefit in the Affordable Care Act.” It’s wrong that the HHS contraceptive mandate was set forth in the Obamacare statute. (It was imposed by regulation.) But more importantly, it omits that Gorsuch and the Tenth Circuit majority were applying the federal Religious Freedom Restoration Act; that the Supreme Court affirmed their judgment and reasoning; and that only two justices (Ginsburg and Sotomayor) adopted the (clearly wrong) position that a for-profit corporation is never a person capable of an exercise of religion within the meaning of RFRA. LCCHR’s claim that Gorsuch’s legal reading enables employers “to block employees’ insurance coverage of birth control” also misses the elementary point that the Supreme Court and the Tenth Circuit, faithfully applying the RFRA test, recognized that the government had ways of providing such access that didn’t dragoon religious objectors.​

LCCHR contends that in Little Sisters of the Poor v. Burwell Gorsuch “joined a dissent that argued that the simple act of filling out an opt-out from constitutes a substantial burden on religious exercise.” Wrong. What the dissent argued, correctly, is that subjecting someone to massive fines for refusing to execute a document in violation of her religious beliefs imposes a substantial burden on her religious exercise:

When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

LCCHR complains that in Planned Parenthood Ass’n of Utah v. Herbert Gorsuch “dissented from the majority’s decision to keep in place a preliminary injunction that stopped the state of Utah from blocking access to health care and education for thousands of Planned Parenthood’s patients.” But (as I explain more fully in point 3 here), the case involved discontinuing taxpayer funding of Planned Parenthood, not “blocking access to health care and education”; the district court had denied Planned Parenthood’s request for a preliminary injunction, only to be overturned by a Tenth Circuit panel; and the narrow legal objections that Gorsuch raised were over the panel’s departure from circuit practice on the standard of review and burden of proof.

“LGBT Rights”: LCCHR repeats its false claim that Gorsuch, in a 2005 National Review article, “expressed disdain for those seeking to use the courts to enforce their rights under the law.” (See my Part 1 post, section on “Discrimination Claims.”) It further falsely claims that Gorsuch “specifically criticized LGBT Americans who have relied on federal courts in their quest for equality.” No, Gorsuch cited “gay marriage” as an example of the “overweening addiction” of “American liberals” to “the courtroom as the place to debate social policy.”

LCCHR also charges that the “rationale [Gorsuch] employed in the Hobby Lobby case—a license to discriminate for private corporations—has also been used by several states to justify discrimination against LGBT Americans.” But Gorsuch didn’t “employ” a “rationale” in Hobby Lobby, nor did he confer “a license to discriminate.” He enforced the religious-liberty rights that Congress recognized in RFRA. It would seem that it’s LCCHR that is guilty of “express[ing] disdain for those seeking to use the courts to enforce their rights under law” as well as for those seeking to have their religious-liberty rights protected by state legislation.

LCCHR complains that in Druley v. Patton Gorsuch “voted to reject a claim by a transgender woman [prisoner] who alleged that her constitutional rights were violated when she was denied medically necessary hormone treatment and the right to wear feminine clothing.” But the unanimous opinion that Gorsuch joined straightforwardly relied on three circuit precedents (each of which had at least two Democratic appointees on the unanimous three-member panel) and on the district court’s determination that the hormone treatment was not medically necessary.

“Police Misconduct”: LCCHR complains of a single ruling by Judge Gorsuch, in Wilson v. City of Lafayette, but fails to note that Obama appointee Scott M. Matheson Jr. joined Gorsuch’s opinion in its entirety. LCCHR also gets the basic holding of the case wrong. Gorsuch did not conclude that the officer’s use of force “was reasonable because the young man was fleeing arrest.” Rather, applying the long-established test for qualified immunity, he concluded that a person who is actively resisting arrest had no “clearly established right” not to be tased

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