海角大神

Of all the people to speak on the first day of what promises to be a grueling week of hearings, Judge Neil Gorsuch 鈥� the man whose confirmation to the US Supreme Court is being deliberated 鈥� was notably concise.

After thanking his family, his law clerks, and his mentors, he grew emotional talking about his late Uncle Jack, an Episcopal priest, and his childhood in Colorado.

鈥淚n my childhood it was God and Byron White,鈥� he said, referencing the former Supreme Court justice whom he clerked for. 鈥淎 product of the West, [Justice White] modeled for me judicial courage.鈥�

Indeed, 鈥淕od and Byron White鈥� could be a succinct description for the lines of inquiry Republicans and Democrats can be expected to take when the Senate Judiciary Committee begins questioning Judge Gorsuch Tuesday.聽As the minority, Democrats can't boycott him the way Senate Republicans did with Judge Merrick Garland, nominated by former President Obama. Instead they have tasked themselves with probing for weak spots in a nominee who for many legal observers has a close-to-spotless paper trail.

One line of inquiry that Democrats seem intent on pursuing concerns Gorsuch鈥檚 reputation as a staunch defender of religious liberty.

His broad interpretations of the rights and protections of religious believers 鈥� sometimes at the expense of large numbers of other citizens 鈥� have been a cornerstone of his jurisprudence during a decade serving on the US Court of Appeals for the 10th Circuit.

鈥淭hat he comes down on side of religious liberty, even when it significantly infringes on the autonomy and liberty interests of large numbers of people, I think that鈥檚 an interesting area worthy of further explanation,鈥� says Sen. Chris Coons (D) of Delaware, a member of the Judiciary Committee, in an exclusive interview with the Monitor.

For a country founded as a sanctuary for people fleeing religious persecution and marginalization around the world, 聽鈥淚 think [those questions] should be subject to special consideration,鈥澛爃e adds.聽鈥淭he balance of faith and freedom, the balance of free exercise rights and autonomy or self-determination rights, are pretty fundamental questions that go back to the foundation of our country.鈥�

'The problem of complicity'

Gorsuch has pushed the envelope on this question, not least in perhaps his most noteworthy case from the 10th Circuit: 鈥淗obby Lobby Stores, Inc. v. Sebelius.鈥�

The case involved a family-owned company based in Oklahoma City that claimed that a mandate in the Affordable Care Act to provide contraception to its 28,000 employees made it complicit in an act that violated its religious beliefs. The 10th Circuit, with Gorsuch in the majority, sided with the company, and the Supreme Court narrowly upheld the decision 5 to 4.

Along two other judges in the majority, Gorsuch said that he would have gone even further, and that individual business owners under the mandate should be able to make similar claims.

鈥淎ll of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others,鈥� he wrote in his opening. 鈥淲hether an act of complicity is or isn鈥檛 鈥榯oo attenuated鈥� from the underlying wrong is sometimes itself a matter of faith we must respect.鈥�

Conservatives who oppose such ideas as abortion rights, transgender bathroom access, and same-sex marriage often base their objections on religious grounds.聽And what concerns people like Senator Coons 鈥� who is a devout Presbyterian with both law and divinity degrees from Yale 鈥� is the interpretation that religious freedom rights outweigh the rights and protections of others.

鈥淥ne of the things I鈥檓 interested in is essentially allowing the complicity concerns of a small family to trump the liberty concerns of thousands and thousands of people,鈥� says Coons.

His judicial privileging of religious freedom has seen Gorsuch produce opinions that would likely appeal to liberals 鈥� including a majority opinion he wrote ruling that a Wyoming prison must allow a Native American inmate access to the prison鈥檚 sweat lodge. But his jurisprudence on religious freedom has .

Many conservatives also share Gorsuch鈥檚 view on public displays of religion, with the judge dissenting from majorities in the 10th Circuit on cases that struck down an Oklahoma county鈥檚 Ten Commandments display (Gorsuch said the Commandments are not 鈥渏ust religious鈥� and thus don鈥檛 violate the Constitution), and that ruled the Utah Highway Patrol couldn鈥檛 erect 12-foot crosses to memorialize fallen officers. (Gorsuch believed that a 鈥渞easonable observer鈥� would not think the crosses promoted 海角大神ity.)

In his opening statement at Monday鈥檚 hearing, Sen. Jeff Flake (R) of Arizona said Gorsuch has 鈥渄emonstrated support for religious freedom,鈥� and then quoted the judge鈥檚 concurrence in the Hobby Lobby case that religious freedom law 鈥渄oesn鈥檛 just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation鈥檚 long-held aspiration to serve as a refuge of religious tolerance.鈥�

'Faith has played a big part in our lives'

Besides the observation that he is clearly a man of faith, Gorsuch鈥檚 own religious leanings aren鈥檛 that clear. He was raised Catholic and attended Catholic schools, but now attends a progressive Episcopal church in Boulder, Colo. Comments from family members and friends of a man who is quietly, but deeply, spiritual.

Coons acknowledges that, and adds that 鈥渋t鈥檚 my responsibility to keep an open mind.鈥�

鈥淲e鈥檙e both people for whom faith has played a big part in our lives,鈥� he says. But 鈥渨e may reach very different conclusions about what that means for the judicial role in privileging religious freedom over individual autonomy.鈥�

鈥淚 genuinely enjoyed my [earlier] meetings with Judge Gorsuch,鈥� he adds. 鈥淗e鈥檚 a very engaging person, but I haven鈥檛 reached any conclusions yet.鈥�

In his statement on Monday, Coons pointed to 鈥渄isturbing trends in affronts to religious liberty,鈥� including President Trump鈥檚 campaign promise of a 鈥淢uslim ban鈥� and the Justice Department鈥檚 withdrawal of guidance allowing transgender students to use the bathroom that matches their gender identity.

鈥淚 am considering your nomination with an open mind, and I would ask that you would be forthcoming in your responses,鈥� he said.

鈥淚 believe we must balance our respect for the significance of faith and free exercise with concerns about impacts on other's liberty,鈥� he added. 鈥淎merica needs a Supreme Court justice who will protect the Constitution, not one who will countenance faith or fear of some, as a justification for infringing the liberty of many.鈥�