Freedom to Believe + Freedom to Act

NOTE: this’ll be a bit nerdy, and you’d likely benefit from reading the totality of Gorsuch’s opinions in Bostock (majority opinion) and Espinoza (concurring opinion). But hopefully I write this clearly enough for you to benefit from reading this alone.

tl;dr while some are unhappy with the outcome of Bostock insofar as it seems to restrict liberty, this is largely because Title VII restricts liberty and Gorsuch’s judicial philosophy follows the law as strictly as possible, but within that opinion and his recent concurring opinion in Espinoza he hints at the fact that in a case such as Masterpiece Cakeshop he would likely side with the majority, and he’d likely support protection for religious exercise exceptions to a host of laws.

I’m thankful for a nation that (generally) provides freedom to both believe AND practice one’s belief largely without governmental burden. And the Court is continuing to protect these freedoms. On June 30th, the Court decided a case regarding a scholarship program in Montana (Espinoza). The majority ruled well. Gorsuch joined the majority and added a noteworthy concurrence.

Justice Gorsuch garnered some attention a few weeks ago with an interesting and logically coherent but likely overly stringent ruling in Bostock (Title VII case a few weeks ago). Though I myself felt Kavanaugh made a good case against Gorsuch (arguing Gorsuch was getting caught up in literalism rather than focusing on the obvious ordinary meaning of the phrase both then and now), I enjoyed Gorsuch’s writing and very much respect his judicial philosophy. It seems obvious from reading his decision he was simply trying to call balls and strikes, but some, who I suspect fail to appreciate the role of a judge, called foul on Gorsuch.

Gorsuch is a judge not a legislator, and admittedly, his approach may be a bit extreme. This is a bit scary when we have poorly crafted laws (like Title VII) but wonderful when we have good ones. As a judge, his role is not to craft good laws but to interpret and apply the laws we have to the best of his ability. This doesn’t mean he always does so perfectly, but he ought to try (and from my observation thus far, he is).

A concluding thought by Gorsuch in Bostock:

Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

Embracing the role of judge rather than legislator is admirable in and of itself, but it is particularly encouraging to me when I consider that the highest law of the land is the US Constitution, and it contains many brilliant protections of liberty to help ensure free persons may live in voluntary associations as God leads them. And Gorsuch’s stringent approach is on display in his concurring opinion for Espinoza. He isn’t content to simply find the right decision but to most robustly defend our First Amendment freedoms while doing so. He specifically states, “The right to be religious without the right to do religious things would hardly amount to a right at all.”

Given his clear interest in free exercise indicated in his concurring opinion in Espinoza, he may well be setting things up for robust First Amendment exceptions to Title VII. Consider this statement in Bostock: “While other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”

Some excerpts from Gorsuch below (emphasis mine to highlight important words to help connect the dots without posting the entire opinion):

Today, the Court explains how the Montana Constitution, as interpreted by the State Supreme Court, violates the First Amendment by discriminating against parents and schools based on their religious status or identity. The Court explains, too, why the State Supreme Court’s decision to eliminate the tax credit program fails to mask the discrimination. But for the Montana Constitution’s impermissible discrimination, after all, the legislature’s tax credit and scholarship program would be still operating for the benefit of Ms. Espinoza and everyone else. I agree with all the Court says on these scores and join its opinion in full. I write separately only to address an additional point.
. . .
Discrimination on the basis of religious status raises grave constitutional questions for the reasons the Court describes. But I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way.
. . .
Our cases have long recognized the importance of protecting religious actions, not just religious status. In its very first decision applying the Free Exercise Clause to the States, the Court explained that the First Amendment protects the “freedom to act” as well as the “freedom to believe.”
. . .
In Sherbert v. Verner, 374 U. S. 398 (1963), for example, a State denied unemployment benefits to Adell Sherbert not because she was a Seventh Day Adventist but because she had put her faith into practice by refusing to labor on the day she believed God had set aside for rest. See id., at 399–401. Recognizing her right to exercise her religion freely, the Court held that Ms. Sherbert was entitled to benefits.
. . .
The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways? What does it mean to tell an Orthodox Jew that she may have her religion but may be targeted for observing her religious calendar? Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all.
. . .
In the century before our Nation’s founding, Oliver Cromwell promised to Catholics in Ireland: “‘As to freedom of conscience, I meddle with no man’s conscience; but if you mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted.’”
. . .
Of course, in public benefits cases like the one before us the stakes are not so dramatic. Individuals are forced only to choose between forgoing state aid or pursuing some aspect of their faith. The government does not put a gun to the head, only a thumb on the scale. But, as so many of our cases explain, the Free Exercise Clause doesn’t easily tolerate either; any discrimination against religious exercise must meet the demands of strict scrutiny. In this way, the Clause seeks to ensure that religion remains “a matter of voluntary choice by individuals and their associations, [where] each sect ‘flourish[es] according to the zeal of its adherents and the appeal of its dogma,’ ” influenced by neither where the government points its gun nor where it places its thumb.
. . .
Montana’s Supreme Court disregarded these foundational principles. Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.