As I walked down a dazed K Street two days after Donald Trump won, I ran into a priest friend. He was no Trumpist, but there was no doubt in his mind that America had picked the lesser of two evils.
“It feels like we’ve been given a reprieve,” he said, speaking for himself and some of his brother priests. He was talking about the Left’s assault on religious liberty and on the Church, using big government as its weapon.
The Obama administration was still fighting nuns in court for not providing contraception for convent staff. The administration had fought the family that owns Hobby Lobby, trying to force them to provide morning-after contraception for their employees. Obama’s administration was suing a Catholic school that had fired a gay teacher after he got married to another man. The ACLU was suing Catholic hospitals to force them to abort babies.
Religious people and religious institutions were under siege. And now, many of the faithful felt, that siege might abate.
Donald Trump gave Christian conservatives plenty of reasons for apprehension, but he gave them this one promise: He would appoint a Supreme Court justice in the mold of Antonin Scalia.
In naming Neil Gorsuch, Trump has delivered on that promise. Gorsuch has taken the side of liberty over the side of state power again and again.
Twice in the Hobby Lobby case Gorsuch ruled against the Obama administration’s efforts to force the Green family to violate its conscience. Liberals will hold up his rulings on religious liberty as some sign of bigotry: He’s against women! He stands for Christian supremacy!
These charges are either partisan slander or a misunderstanding of a judge’s role. Many liberals seem to think a judge’s job is to be a left-wing legislator, creating policies that advance elite ideals. They see the “correct” side in Hobby Lobby as being about advancing women’s “access to” (a weasel phrase that means “subsidies for”) contraception. They imagine Gorsuch was, in essence, ruling for bosses, or against contraception.
Wrong. Gorsuch was ruling for religious liberty, specifically because the law — the Religious Freedom Restoration Act — prescribes religious liberty.
If you doubt Gorsuch’s commitment to the law on this point, and believe he was just standing up for rich Christians, check out the judge’s rulings in favor of men named Andrew Yellowbear and Madyn Abdulhaseeb.
Andrew Yellowbear is not exactly Neil Gorsuch’s type of guy. He is nobody’s type of guy. Yellowbear is serving a life sentence for the brutal and protracted beating death of his own two-year-old daughter.
Yellowbear is a member of the Northern Arapaho Tribe, and his federal prison has a sweat lodge in the main prison yard. But Yellowbear is kept separate from the prison’s general population — not because of any disciplinary infractions, but for his own protection. The prison denied Yellowbear access to the sweat lodge, arguing that escorting him there would be too costly and disruptive. A federal district court agreed with the prison and threw out Yellowbear’s suit on summary judgment.
But when the case came before him, Gorsuch noted that prisoners in protective custody are escorted daily through gen-pop for medical or legal issues. Gorsuch asked “why is this religious exemption offensive to the prison’s putatively compelling no-lock-down interest when other secular exemptions are not?”
Gorsuch vacated the lower court’s summary judgment and ordered them to hear out Yellowbear’s religious liberty case.
Gorsuch based his ruling on RFRA and the related Religious Land Use and Institutionalized Persons Act. “The whole point of RFRA and RLUIPA,” he wrote, “is to make exceptions for those sincerely seeking to exercise religion.
Then there was the case of Madyn Abdulhaseeb, a Muslim man serving 150 years for rape and burglary. Abdulhaseeb sued the prison for not providing halal meals. Gorsuch ruled in Abdulhaseeb’s favor and, in a concurring opinion, laid out a clear method, based in the text of the two laws, for weighing the state’s interest against the individual’s religious-liberty interests.
So the liberal talk about protecting the powerless, looking out for religious minorities, curbing the abuse of police power — Gorsuch has walked that walk, because that’s what the law prescribes.
In Neil Gorsuch’s America, the powerless will be more protected from the state. Gorsuch has shown he’ll apply the law not only to protect Christians and businessmen, but Muslims, native Americans, inmates, and yes, even a baby-killer and a rapist. Because they have rights too.
With his nomination of Gorsuch, Donald Trump really has provided a reprieve to many who feel threatened by state power — including many you wouldn’t even expect.
Timothy P. Carney, the Washington Examiner’s senior political columnist, can be contacted at [email protected]. His column appears Tuesday and Thursday nights on washingtonexaminer.com.
