Amanda Knief, National Legal Director

American Atheists has grave concerns about the nomination of Judge Neil Gorsuch to serve a lifetime appointment on the United States Supreme Court. Judge Gorsuch’s expansionist view of religion as a ‘Get Out of the Law, Free’ card is fundamentally at odds with the history of American jurisprudence and would allow religion to be used as a weapon against women, LGBT people, atheists, and others.

I strongly urge members of the United States Senate to fulfill their Constitutional obligation to look deeply at Judge Gorsuch’s record and determine whether or not his views about religious liberty are in line our American values.

Having examined his record myself, it is clear to me that Americans deserve better than a judge who would prioritize the ‘religious beliefs’ of a corporation over the right of a woman to make healthcare decisions for herself and the bigotry of some over the fundamental human rights of vulnerable communities.

Outsourcing the Selection of Judge Gorsuch

President Trump outsourced the selection process of a Supreme Court justice to the ideologically driven Federalist Society and Heritage Foundation. Never has a president so blatantly curried favor with partisan organizations for a Supreme Court nomination. In addition, as a presidential candidate he pledged to appoint Supreme Court justices who would overturn Roe v. Wade. Litmus tests in judicial selection subvert the most critical qualities of a judge: open-mindedness and independence.

Hostility to the Use of the Courts to Protect Minority Rights

In a 2005 article published in the conservative National Review, Judge Gorsuch wrote “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”

Throughout our nation’s history, the federal courts have been a critical bulwark in ensuring the rights and liberties of all Americans, most especially minority groups whose numbers mean they have less influence at the ballot box. Judge Gorsuch’s hostility to the use of courts by victims of discrimination in all forms to enforce their rights under the Constitution and federal law demonstrates his ideological agenda and has been reflected in his judicial decisions during his decade on the bench.

Erosion of the Establishment Clause

As a judge on the Court of Appeals for the Tenth Circuit, Judge Gorsuch has written or joined dissents that would dramatically weaken the Establishment Clause of the First Amendment. Judge Gorsuch seems particularly willing to allow the placement of religious symbols, almost exclusively of a Christian nature, on government property.

In American Atheists, Inc. v. Duncan, a panel of three Republican-appointed judges ruled against the Utah Highway Patrol Association’s construction and maintenance of a series of 12-foot crosses on public land near roads to memorialize deceased officers, explaining that the crosses had the “impermissible effect” of appearing to endorse the Christian religion. Judge Gorsuch wrote an opinion for himself and several other judges that dissented from the decision of the full court of appeals not to rehear the case. Gorsuch asserted that the “endorsement” test should not be applied, and criticized the “reasonable observer” standard that the circuit court used to determine that the crosses were religious symbols. Judge Gorsuch wrote that the intent of the person who displayed the religious symbol weighs more than the impression such a symbol leaves on the person who views it. The Supreme Court denied view of the case; Justice Thomas alone wrote a vigorous dissent, making some of the same arguments as Judge Gorsuch.

In Green v. Haskell County Board of Comm., another case involving Christian symbols on public property, a three-judge panel of all Republican appointees had concluded that an Oklahoma county’s decision to approve the construction of and maintain a Ten Commandments monument on its courthouse lawn violated the Establishment Clause. Judge Gorsuch again wrote an opinion for himself and several other judges that dissented from a decision by the full court of appeals not to rehear the case. He argued that the court should not expect that a reasonable person would infer a religious endorsement when a government official appearing in that capacity appears and/or speaks at a religious unveiling ceremony. As the panel decision explained, however, the endorsement test remained the law in the Tenth Circuit (and elsewhere), the monument clearly had the “primary effect of endorsing religion.” The Supreme Court denied review of the case.

Religious Views Imposed on Women’s Health

Judge Gorsuch has written or joined opinions that would restrict women’s health care, including allowing religious beliefs to override women’s access to birth control and defunding Planned Parenthood.

In Hobby Lobby Stores, Inc. v. Sebelius, he signed on to an opinion allowing certain for-profit employers to refuse to comply with the birth control benefit in the Affordable Care Act. Citing Citizens United v. FEC, the decision held that corporations can be “persons” with religious beliefs and that employers can use those religious beliefs to block employees’ insurance coverage of birth control.

In Little Sisters of the Poor Home for the Aged v. Burwell, Judge Gorsuch dissented from the majority’s decision approving the accommodation in the birth control benefit that allows non-profit employers to opt out of the benefit but makes sure the employees get birth control coverage. Judge Gorsuch joined a dissent that argued the simple act of filling out an opt-out form constitutes a substantial burden on religious exercise.

In Planned Parenthood Association of Utah v. Herbert, Judge 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. If the policy had gone into effect, it would have cut off access to an after-school sex education program for teens and STI testing and treatment for at-risk communities.

Rejection of Aid-in-Dying

Judge Gorsuch wrote a dissertation that rejects laws that provide aid-in-dying to terminally ill persons. He calls such laws “assisted suicide” and wrote “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”

However, Gorsuch demurred in the book to discuss the death penalty or war, saying those issues brought “unique questions.”

The U.S. Supreme Court upheld Oregon’s death with dignity law in 2006, explaining that “rather than simply decriminalizing assisted suicide, [the Oregon law] limits its exercise to the attending physicians of terminally ill patients.” Now six states and the District of Columbia permit aid-in-dying.

Judge Gorsuch wrote that such aid-in-dying laws would “tend toward, if not require, the legalization not only of assisted suicide and euthanasia, but of any act of consensual homicide” including “sadomasochist killings, mass suicide pacts, duels, and the sale of one’s own life.”

In Oregon, where aid-in-dying has been closely research and studied for more than a decade, there have been no reports of any such instances. Judge Gorsuch’s position denies terminally ill individuals basic human dignity at the end of life, and it is not his role as a judge to make personal medical decisions for a patient.