Gorsuch proves himself strong defender of religious freedom

Justice Neil Gorsuch has been on the Supreme Court for only a couple of months, but he's already made his mark as a strong conservative voice.

Gorsuch asserted himself in writing concurring and dissenting opinions, aligning himself most frequently with Justice Clarence Thomas and positioning himself to the right of Chief Justice John Roberts.

Washington Times:

"The guy's not afraid to write," said Josh Blackman, an associate professor at South Texas College of Law. "He's not afraid to assert himself."

Confirmed to the court in April, Justice Gorsuch participated in only a small fraction of the cases this year. But in a year that lacked big-name rulings, his ascendance was the biggest story of the court's term. He is already cutting an outsized figure by asking his fair share of questions and taking stances that suggest he will carve out his own jurisprudence on the high court.

In one brief dissent Monday, he chided his colleagues for moving quickly to overturn an Arkansas law refusing to list the name of a same-sex partner when a child is conceived through artificial insemination. He said the court should have at least heard the state's justifications.

In another dissent, Justice Gorsuch complained of the court's timidity in defending religious freedoms. The court ruled that a Missouri church couldn't be barred from receiving government money under a program designed to improve playgrounds.

Justice Gorsuch, though, said the court was creating bizarre distinctions suggesting there is a difference between "religious status and religious use" when it comes to church and state interactions.

"Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner?" he wondered. "The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him)."

He concluded that the First Amendment's protections of religious freedom shouldn't care about the distinction either way.

"After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status)," he wrote, in an opinion joined by Justice Thomas.

The two justices also dissented from the court's refusal to take up a gun rights case. They said the court was copping out by refusing to give clear guidance on whether the Second Amendment protects Americans' right to carry a firearm outside the home.

They said the court was treating Second Amendment rights as lesser guarantees than other Bill of Rights protections.

For those on the right who were less than enthusiastic supporters of Donald Trump for president but realized the vital importance of electing someone who would name conservatives to the court, the Gorsuch opinions are eliciting a sigh of relief.  No matter how good a nominee looks on paper, the test of the conservative mettle of a justice occurs when his votes and opinions are closely examined.  Chief Justice John Roberts has been a reliable conservative vote on some issues, but he will never be forgiven for the legal somersaults he turned in approving Obamacare.  Justice Anthony Kennedy, who started out to be a conservative justice, grew into a swing vote on the court – especially on abortion and gay rights, where he reliably swings left.

The Gorsuch opinions place him more in the intellectual orbit of deceased Justice Scalia, who frequently pointed out the inconsistencies in the court's decisions.

Unlike Scalia, who had the misfortune of serving on a narrowly divided court and found himself frequently in the minority, President Trump will have the opportunity to replace one or perhaps two liberal justices with conservatives.  That will give Gorsuch the opportunity to shine and could bring some much needed sanity and prudence to the court's decisions.