Not All Gorsuch Religious Liberty Decisions Are Alike

Although the Senate Judiciary Committee has delayed the vote on his nomination until next week, it's worth taking a closer look at the Supreme Court nominee's record on protecting the faith of people in prison.

Judge Neil Gorsuch's record is especially troubling given growing concerns about his ruling in favor of corporations at the expense of individuals. Justin Sullivan/Getty Images

Supreme Court nominee Neil Gorsuch has gained a reputation as a religious liberty advocate. In two of his most renowned decisions as a Tenth Circuit judge, Gorsuch ruled in favor of religious organizations seeking exemptions from laws that conflicted with their beliefs. But in at least one area, Gorsuch appears less amenable to religious exemptions: when the plaintiffs are prisoners. This inconsistency is troubling and reflects a larger concern that Gorsuch may protect the rights of corporations more robustly than those of individuals.

The clearest example of Gorsuch treating religious employers differently from religious people who are incarcerated can be seen by contrasting his analyses on one important legal question—when the government has imposed a “substantial burden” on religious faith. Both the Religious Freedom Restoration Act (RFRA), which provides a broad right to religious exemptions from federal law, and the Religious Land Use and Institutionalized Persons Act (RLUIPA), which offers religious accommodations to federal and state prisoners, only exempt practitioners from laws that “substantially burden” their religious exercise. In interpreting RFRA and RLUIPA, Gorsuch has held that monetary fines on large corporations constitute a greater burden on religion than the denial of benefits—including food—to prisoners. He has also been more deferential to claims made by companies than by prisoners that their religious beliefs are substantially burdened.

In Hobby Lobby v. Sebelius, which was heard by the Tenth Circuit before being appealed to the Supreme Court, for-profit companies argued that the birth control benefit of the Affordable Care Act (ACA) imposed a substantial burden on their religious exercise. The benefit required the companies to cover all FDA-approved contraceptives, some of which they found morally objectionable, in their employee health insurance plans.

The government argued that the companies’ beliefs were not being burdened, as they had a legal alternative to paying for contraception: They could decline to offer health insurance altogether and incur an annual fine of $2,000 per employee (less than the cost of providing health insurance). Thus the companies were not being forced to abandon their beliefs. Additionally, the government argued that any requirement to pay for contraceptive coverage was too attenuated from the core religious belief of Hobby Lobby’s owners—opposition to abortion—to constitute a substantial burden.

The Tenth Circuit disagreed. The court held that imposition of the fine and the “competitive disadvantage” of not providing health benefits did constitute a substantial burden on the companies, and pressured them to violate their faith. Ironically, while the court held that a monetary penalty substantially burdened the companies’ religious practices, it claimed that employees’ religious beliefs were not burdened, as the companies “do not prevent employees from using their own money to purchase” contraceptives.

Judge Gorsuch wrote a concurring opinion in the case that called the fines “crippling.” Rejecting the government’s argument about attenuation, Gorsuch countered that it is “not for secular courts to rewrite the religious complaint of a faithful adherent.” In other words, courts needed to defer entirely to the objectors’ claim that their beliefs were burdened. He emphasized the need to respect the religious beliefs of Hobby Lobby’s owners—the Greens—explaining that while “some may even find the Greens’ beliefs offensive,” RFRA “doesn’t just apply to protect popular religious beliefs.”

In the subsequent Little Sisters case, a nonprofit organization objected to the existing religious accommodation of the ACA, which allowed religious objectors to fill out a form exempting them from paying for contraceptive coverage. This coverage would then be provided to employees by their health insurance companies. The Little Sisters argued that even filling out the exemption form violated their religious beliefs.

A Tenth Circuit panel (which did not include Judge Gorsuch) found that the Little Sisters were not substantially burdened by the existing accommodation, and the full Tenth Circuit subsequently voted not to rehear the case. Gorsuch joined a dissenting opinion from the decision not to hold a rehearing. The dissent states flatly, “When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.” It additionally argues that courts must defer entirely to claimants’ assertions that their religious freedom is burdened—no matter how tenuous the link between the challenged law and the objectors’ specific moral belief—stating “it is not the job of the judiciary to tell people what their religious beliefs are.”

In contrast to his deep concern with financial penalties imposed on companies that decline to provide health benefits to their employees, Gorsuch’s RLUIPA decisions show he is less concerned with burdens placed on religious inmates. He also appears less willing to accept at face value prisoners’ assertions that their religious beliefs are burdened.

Judge Gorsuch has heard a handful of RLUIPA cases, most of them dismissed for procedural reasons (that we expect unrepresented prisoners to be able to navigate the judicial process is a blog post for another day). However Gorsuch has ruled on the substance of at least a few claims brought by religious prisoners. Most notable is a concurrence he wrote in Abdulhaseeb v. Calbone, in which a Muslim inmate argued that a prison violated his RLUIPA rights by (among other things) denying his requests for religious books and a halal diet.

The court held that Abdulhaseeb’s request for a halal diet had merit. This is no surprise, as RLUIPA is almost universally understood to require prisons to offer kosher or halal meals to religious inmates. However the opinion dismissed several other claims for procedural reasons and ruled that the prison’s policy of not paying for Islamic books was not a violation, as “RLUIPA requires governments to refrain from substantially burdening religion, not to affirmatively subsidize religion.” It also ruled that “failing to host an Islamic revival, while hosting a Christian revival” was unobjectionable as “there is no evidence that the defendants’ failure to host a revival substantially burdened his religious exercise.”

In his concurring opinion, Gorsuch wrote “The court today holds that [RLUIPA] prohibits the government from forcing a prisoner to choose between following his sincerely held religious beliefs and staying alive. With this, I agree.” He was unwilling to take a stronger stance, however, later stating “Whether and to what extent the statute goes further is a question for another day.”

While Gorsuch concedes that starvation constitutes a substantial burden, he argues that RLUIPA does not guarantee a prisoner the right to eat every meal. In response to Abdulhaseeb’s claim that the prison “sporadically placed questionable foods … onto his cafeteria tray, thus rendering all of the tray’s contents inedible,” Gorsuch found that this imposed “only a moderate impediment to … his religious exercise. It’s surely a burden to forgo an occasional meal. But it’s not a substantial burden.”

Gorsuch also reiterated the majority opinion’s point that the court “certainly [does] not suggest that RLUIPA requires the state to provide prisoners—even indigent prisoners—with everything they need for religious purposes.”

In another Tenth Circuit opinion, Ciempa v. Jones, Gorsuch wrote the majority opinion involving a “member of the Nation of Gods and Earths (NGE), a group derived from the Black Muslim movement that Mr. Ciempa claims is religious in nature.” Ciempa asserted several RLUIPA rights, including requests for religious books, headware, and a halal diet. In a brief opinion upholding the lower court’s denial of Ciempa’s claims, Gorsuch wrote “we find no persuasive reason to fault the district court’s careful analysis or much we might add to it.”

The district court, in turn, had ruled that most of the inmate’s complaints did not amount to a substantial burden on his religious belief. For example, in response to a complaint that the prison had denied him copies of a religious periodical, the court held, “While failure to receive The Five Percenter may make it somewhat more difficult to engage with other members of the NGE community and receive religious teaching, the burden is not substantial.”

While the court acknowledged that denying Ciempa another religious book was a substantial burden, it nevertheless found that banning it was “the least restrictive means of achieving the compelling interest in prison order and safety” as it contained “instructions [that] could be used to facilitate prison escape.” The court did not appear to consider other options, such as censoring the book. The opinion also noted that RLUIPA did “not require prison authorities to actively facilitate Ciempa’s religious exercise.”

Finally, in Thomas v. Parker, Gorsuch was on a panel that again rejected an inmate’s numerous RLUIPA claims, dismissing some procedural reasons and others for failing to demonstrate a “substantial burden” on his beliefs. The Tenth Circuit deferred entirely to the district court opinion, which held that the prison’s broadcasting of Christian television and refusal to use the claimant’s Muslim name were not substantial burdens, as the inmate “fail[ed] to identify how this conduct has substantially burdened any religious exercise of his own Muslim faith.”

While in Hobby Lobby Gorsuch held the imposition of a fine on a company with multibillion dollar revenue unfairly pressured the company to defy its beliefs, in Abdulhaseeb he found that going hungry did not pressure a prison inmate to break his halal diet. Furthermore, while employees (or, presumably, the government) could be expected to subsidize the religious beliefs of companies by paying for birth control, Gorsuch was clear that prisons had no responsibility to “subsidize” religious practice by providing inmates with books or other materials. Judge Gorsuch also appears far more willing to second-guess inmate’s claims that their religious practice has been burdened, upholding district court findings that claimants have failed to provide sufficient evidence of any burden.

Gorsuch did write a favorable opinion for at least one religious inmate, in Yellowbear v. Lampert, which he recently included in a list of his ten most significant cases for the Judiciary Committee. Frankly, however, Yellowbear was—like 2015’s Holt v. Hobbs—an “easy” case. As Gorsuch himself wrote, “In this case, it doesn’t take much work to see that Mr. Yellowbear has satisfied his obligations under … the substantial burden test.”

The claimant, a member of the Northern Arapaho tribe, was denied any access to a sweat lodge that the prison already had on its grounds. The prison’s justifications for the denial—that the sweat lodge was dangerous, and that bringing Yellowbear to the lodge would require burdensome lock-downs—was obviously undercut by the fact that the prison already used the lodge, and already had lock-downs on a regular basis. Thus while the case came out in favor of the religious claimant, it hardly proves that Gorsuch has interpreted RFRA and RLUIPA cases without regard to the identity of the claimant.

Neither questioning a religious practitioner’s “substantial burden” claim nor holding that the government need not subsidize religious are unreasonable. In fact, in analyzing RFRA and RLUIPA courts should consider how an exemption will affect the government and third parties, such as a company’s employees or a practitioner’s fellow inmates. However religious exemption claims should not depend on the status of the claimant—judges should not treat suits brought by prisoners with skepticism while declining to question the claims of more “respectable” plaintiffs.

Although the Senate Judiciary Committee has delayed the vote on his nomination until next week, it’s worth taking a closer look at Gorsuch’s record on protecting the faith of people in prison. His record is especially troubling given growing concerns about his ruling in favor of corporations at the expense of individuals.