The leading contenders to become Donald Trump‘s Supreme Court nominee, the name of which he said he would reveal a week from today, have troubling records when it comes to church/state separation. All of them would likely move the Court to the right on those issues, so it’s worth looking into what they’ve done in the past.
49-year-old Neil Gorsuch sits on the 10th Circuit Court of Appeals and has been dubbed the “most natural successor to Justice Antonin Scalia” in all the wrong ways. However, due to his strong academic background and legal renown, it’s hard to see how Democrats would stop him from taking the seat.
He was a judge who ruled in favor of Hobby Lobby before the company’s case reached the Supreme Court, essentially saying that the Christian owners had every right to impose their beliefs on their employees by denying them comprehensive health insurance that included birth control — even when the owners falsely claimed that birth control was a form of abortion. SCOTUSblog put it more technically: Hobby Lobby was “likely to prevail on claims that the contraception mandate in the Affordable Care Act substantially burdened their religious exercise in violation of [the Religious Freedom Restoration Act].”
That case, along with his decision in Little Sisters of the Poor Home for the Aged v. Burwell, shows that if your religious beliefs come into conflict with facts and the law, Gorsuch believes your religion should take precedence.
He also joined a dissent in Summum v. Pleasant Grove City. In that case, officials in Pleasant Grove, Utah allowed a privately donated Ten Commandments monument to be placed on public property… while refusing a monument from the (non-Christian) Summum church. That led to a lawsuit that went all the way to the Supreme Court, where the justices unanimously ruled in favor of the city, though they did it on free speech grounds, not church/state separation ones. Before the case got there, however, Gorsuch made a similar argument on the 10th Circuit, saying that the city had every right to say no to Summum because accepting all private monuments would basically lead to chaos.
54-year-old William “Bill” Pryor, currently sitting on the 11th Circuit Court of Appeals, has a much lengthier paper trail, and he is every conservative stereotype rolled into one. In addition to wanting to abolish abortion rights entirely — even for rape victims — he has compared homosexual acts to “prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.”
He’s just as bad on Establishment Clause issues:
Mr. Pryor is probably best known as a zealous advocate of relaxing the wall between church and state. He teamed up with one of Pat Robertson’s organizations in a court effort to defend student-led prayer in public schools, and he has vocally defended Alabama’s chief justice, who has insisted on displaying the Ten Commandments in state court facilities.
Defending Roy Moore, who snuck a Ten Commandments monument into the Alabama State Courthouse in the middle of the night, is disturbing enough. But don’t be misled by his support of student-led prayer. That’s already legal. What he actually wanted was students to be able to take over the public address systems before football games in order to say those prayers. He joined several other attorneys general in an amicus brief in the case of Santa Fe Independent School District v. Doe. Thankfully, the justices struck that type of prayer down in 2000.
In a 1997 speech, he channeled pseudo-historian David Barton in claiming this nation was a Christian one: “The challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective.”
The final nominee being considered by Trump is 51-year-old Thomas Hardiman, who sits on the 3rd Circuit Court of Appeals. His rulings haven’t touched on too many religious cases, but he did once rule on the side of an evangelical mother and her child who wanted to read from the Bible during a “show and tell” activity in kindergarten. The school said no, the family sued, and Hardiman said the school had no right to stop the student from talking about his faith in class because that constituted “viewpoint discrimination.” (The District, however, eventually won the case.)
SCOTUSblog also points out one other relevant decision:
… in another case, he joined a decision against a school district and in favor of a child who was barred from distributing at school invitations to a Christmas party to be held at her church.
These are not earth-shattering church/state separation issues, but he seems to side with students who want to express their religious beliefs in school, even when it may cross the line into proselytizing.