The Senate confirmation hearings for Judge Gorsuch, nominated to join the Supreme Court, began yesterday. In Nathan Diament’s opinion, Gorsuch understands the First Amendment’s protection of religious liberty expansively, in a way that the late Antonin Scalia—whom he was chosen to replace—did not:
In 1990, Scalia severely curtailed the First Amendment’s protection for the free exercise of religion. . . . At the time, Supreme Court precedents held that [certain state encroachments on religious freedom would be held to] the highest standard of constitutional proof, known as strict scrutiny. . . . A divided court overturned those precedents. Justice Scalia, writing for a five-justice majority, held that a person’s right to the free exercise of religion would receive a lower level of legal protection when the law in question doesn’t specifically target religion. . . .
Samuel Alito, appointed to the high court in 2006, was the first of the newer justices who had a record of disagreeing with [this particular opinion of Scalia’s]. Judge Gorsuch would be another. He appears to be sensitive to the needs of religious minorities and the role faith plays in people’s lives. . . .
[As a judge on the Tenth Circuit Court of Appeals], Gorsuch wrote a separate opinion in Hobby Lobby, [a much-publicized 2013 case regarding the Affordable Care Act’s “contraceptive mandate”], arguing that the Religious Freedom Restoration Act “doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.” . . .
What comes through in [Gorsuch’s] opinions is a recognition that seems to have eluded Scalia in 1990: the law is meant to be a bulwark against infringement—whether by government or other powerful entities—upon a person’s religious conscience and practices. It is not enough to allow Americans to believe as they wish; they must also be able, generally, to act in conformity with their beliefs.