After months of speculation about what kind of Supreme Court Justice Neil M. Gorsuch would make, we’re finally about to find out—for better or for worse—when the Court hears a case later this month that could redefine the constitutional definition of “the separation of church and state” and considers another that would determine whether denying services to gay people is protected as a religious freedom.
Gorsuch’s Supreme Court seat was made official on Monday after Senate Republicans invoked a “nuclear option,“ eliminating the 60-vote supermajority required for confirming a Supreme Court justice. Gorsuch’s confirmation cemented the court’s 5-4 conservative majority as he fills the seat left open by Justice Antonin Scalia, who died unexpectedly last year. Of course, President Barack Obama nominated Merrick Garland for that seat, but Senate majority leader Mitch McConnell blocked Garland from receiving a hearing. At only 49 years old, Gorsuch is likely to serve on the bench for a long time.
When Gorsuch’s nomination was announced, liberals scoured his record for indications of just how conservative he might be. As Gorsuch never made any rulings as a judge in Colorado that directly reveal his stance on flagship conservative issues like abortion and gun control, journalists have had to speculate his positions based on other rulings.
The biggest clue as to what kind of justice Gorsuch would be came by way of a 2013 ruling in favor of Hobby Lobby, in the craft store’s lawsuit against President Obama’s Affordable Care Act. Gorsuch ruled that the retailer could opt out of an ACA provision that required companies to cover the cost of employees’ birth control if it went against the religious faith of a company’s owners to do so.
This doesn’t bode well for how Gorsuch might rule on future women’s and LGBTQ issues, as protection for both are often positioned as "an assault on religious freedom.” Before his confirmation, critics warned that Gorsuch’s ruling in favor of Hobby Lobby’s “religious freedom” would foreshadow similarly regressive rulings on contraceptive access, LGBTQ discrimination and abortion access, if such cases make it to the highest court.
Wait no more. This month, two cases that involve religious freedom are scheduled to come before the court.
On April 19, the court will hear arguments in Trinity Lutheran Church of Columbia, Inc. v. Pauley, a case that has the potential to profoundly change the constitutional definiton of "separation of church and state.” The case began when Trinity Lutheran Church in Columbia, Missouri tried to participate in a state program to replace the gravel in its playground with softer, safer rubber padding. The state denied the request because Missouri’s constitution forbids state funds from going to religious organizations, which are tax-exempt. The church sued.
The Supreme Court agreed to hear this case more than a year ago but delayed hearings until this month—just in time for a new conservative majority to determine whether religious organizations have a right to state funds. This, of course, will have huge implications across the country.
In a case that’s similar to Hobby Lobby’s, the court will then decide whether or not to hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case involves a Colorado bakery’s refusal to make a cake for a same-sex wedding; the bakery’s owners said doing so would infringe upon their religious beliefs. The lower courts found that the shop violated Colorado’s Anti-Discrimination Act; the Colorado Court of Appeals upheld that decision. The case has been under consideration for acceptance by the Supreme Court since January, but now that Gorsuch is on the bench, he may tip the scale in favor of hearing this issue.
During the confirmation process, the most contentious detail about Gorsuch was the fact that he had been nominated for what became known as Garland’s “stolen seat.” Democrats believe he should have never been allowed a hearing in the first place. It didn’t matter that Gorsuch was qualified and that he actually seems like a relatively moderate choice compared to some of the others on Trump’s shortlist. Now that that battle is over and he’s on the bench, it’s time to see what kind of justice he’ll be.