Supreme Court nominee judge Neil Gorsuch rubs his eye during the third day of his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, U.S., March 22, 2017. REUTERS/Jonathan Ernst
The Aurora Sentinel in Aurora, CO published an editorial opining that Judge Neil Gorsuch is an “affable, smart, diligent but fatally flawed” nominee for the Supreme Court. The backhanded compliment doesn’t ameliorate the leftist progressive argument the newspaper trots out as justification for opposing his appointment.
Their complaint is that Gorsuch “wrongly allows the court to protect the religious freedom of one citizen by denying the same rights of another” because “Gorsuch said the government and the courts shouldn’t evaluate or judge “the correctness or the consistency” of what people say are religious objections.”
The editorial fails at first blush because the authors clearly do not understand either the meaning of or the court’s ruling in interpreting the Free Exercise Clause of the First Amendment. It is long-established precedent, and rightly so, that neither the government nor the courts have the power to question the “correctness or the consistency” of religious belief. That’s why Scientology and Atheism are both, constitutionally speaking, “religions” that must be given due constitutional deference for their beliefs, no matter how silly, irrational or stupid someone else might think they are.
Hobby Lobby, among others, sued precisely because they felt that the statute unconstitutionally violated its owner’s right to free exercise of religion because it was being compelled by the government to pay for abortions for its employees. And it was correct in making the claim that this law was unconstitutional under the Religious Freedom Restoration Act, which says that government must demonstrate that “application of the burden [on religion] to the person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” The Supreme Court held that the contraceptive mandate violated this requirement and therefore struck it down.
Another rank liberal progressive intellectual failure in the article is the statement “Freedom of can’t exist without freedom from.”
This is usually the predicate phrase in a specious argument that there is a right to “freedom from religion,” something that absolutely does not exist in our law or our Constitution. The freedom of religious belief and exercise is stated in the First Amendment precisely and exactly to deny any power on the part of government to make laws that infringe upon the right to the free exercise of religion, and nowhere is the government empowered to suppress anyone’s religious freedom in order to provide freedom from religion to anyone else. The requirement of the Constitution is that everyone must tolerate the peaceable exercise of religion by everyone else, regardless of how offensive or repugnant they might deem those beliefs to be in exactly the same way that everyone is required to tolerate speech they find offensive.
The editorial goes on to say “Whether a Hobby Lobby employee gets birth control pills to treat ovarian cysts has nothing to do with owner’s ability to practice their religion.” This is simply a fallacious strawman argument regularly trotted out by the liberal press to try to confuse the issue. It is a false argument because the issue is not whether or not an employee gets birth control pills for whatever reason, or gets an abortion, or gets a hangnail treated, the issue is who is being compelled to pay for and/or provide it.
Nothing Hobby Lobby did prevents employees from obtaining birth control or having an abortion and the ruling makes that point clear, saying “The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.” All the ruling does is free people with religious convictions from having to pay for those services.
In no way does this infringe on the rights of employees because they never had a right to force someone else to pay for their birth control in the first place. The idea that a vacuous and nonexistent right to freedom from religion confers the power to compel someone to violate their religious beliefs has no foundation in the law.
A “right” never imposes any affirmative duty on another beyond simple tolerance of the exercise. There is certainly no right to demand that someone else labor on your behalf by working to earn money to pay taxes to pay for an abortion or birth control. That is flatly outlawed by the 13th Amendment’s proscription on slavery and involuntary servitude. And that is exactly what the Aurora Sentinel argues in favor of: forcing people of faith into slavery in order to pay for birth control and abortion for others.
But the worst argument the Aurora Sentinel makes is that Judge Gorsuch is somehow ineligible to sit on the Supreme Court merely because he understands the Constitution and the law far, far better than the editorial board at the newspaper does or cares to.