We live in an age of quick and polarized judgments. This
post does not lead to any endorsement or condemnation of Judge Gorsuch’s
nomination to the Supreme Court. It’s simply a small point of information for
those who want to learn a little more.
Judge Gorsuch believes that religious freedom laws (there
are several, if not numerous statutes) should be interpreted broadly. Most legal cases involve
the right of fundamentalist Christians.
I came to work today with this question: Where is Judge Gorsuch’s thinking with respect to observant Muslims?
The preliminary answer is that Judge Gorsuch respects the
rights of Muslim worshipers—to the extent that one case tells us anything.
On
the other hand, I’ve marked out a paragraph that troubles me because I wonder
if he’ll take the same view with Christian petitioners.
Here’s the case (Abdulhaseeb v. Calbone). Madyun
Abdulhaseeb, an Oklahoma inmate who follows the Islamic faith, filed suit under
the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). In substance
he claimed various violations of his dietary religious rights. The trial court
threw out his lawsuit. The Tenth Circuit Court of Appeals reversed significant
parts of the ruling. In doing so, they reasoned he presented enough evidence to
merit a trial on his claims.
It’s a lengthy case; but Abdulhaseeb argued that he had a
right to a halal diet, and as part of the right, the state could not put
pudding or gelatin on his plate (because they contain prohibited pork
byproducts).
Three judges—including Judge Gorsuch— ruled in favor of the
Muslim prisoner on the main thrust of his dietary claims.
Judge Gorsuch wrote a concurring opinion. He didn’t have to
do this. This is reminiscent of Justice Scalia. Basically, he’s saying that his
brethren didn’t fully explain their ruling. This is just one case, but when a
judge does this frequently it tends to have a polarizing effect on an appellate
court, where judges sit in groups (called panels). It’s kind of like one-upping
a colleague at work.
Here’s a paragraph that encourages me, followed by a paragraph
that concerns me:
Encouraged to see this from Judge Gorsuch: “Mr. Abdulhaseeb
deserves the benefit of the doubt. Accordingly, we charitably interpret Claim
10 to allege only the first, most troublesome scenario—that Mr. Abdulhaseeb
requires a halal-certified diet that he is not currently receiving and that
ODOC (Oklahoma Department of Corrections) has provided no means for him to
procure for himself. Or, put another way, that he has been forced to choose
between violating his religious beliefs and starving to death. Whatever else
might be said about RLUIPA, redressing this sort of Hobson's choice surely lies
at its heart.”
Worried about this from Judge Gorsuch: “Claim 2, on the
other hand, doesn't meet that threshold. By alleging that ODOC sporadically
placed questionable foods, such as jell-o and pudding, onto his cafeteria tray,
thus rendering all of the tray’s contents inedible, Mr. Abdulhaseeb has
described only a moderate impediment to—and not a constructive prohibition of—his
religious exercise. It’s surely a burden to forgo an occasional meal. But it's
not a substantial burden, and RLUIPA proscribes only government actions that
substantially burden religious exercise.”
The bottom line is that Judge Gorsuch views religious rights
for this Muslim in a way that prohibits substantial impairment but not moderate
impairment.
Now my question is, what happens when a Christian florist,
baker, or photographer is requested to serve a gay or lesbian wedding ceremony.
Is doing one ceremony against one’s Christian beliefs a substantial or moderate
impairment? By the reasoning here, serving one gay/lesbian wedding is
equivalent to missing one Halal meal—a moderate impairment. But who knows what
Judge Gorsuch says? We’ll find out, in time.
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