Gor­such to quickly make im­pact on court; re­li­gious lib­erty case loom­ing

The Washington Times Daily - - POLITICS - BY ALEX SWOYER

The Supreme Court still has 13 cases it will hear this term, in­clud­ing a sig­nif­i­cant re­li­gious lib­erty case loom­ing next week. This gives newly minted Jus­tice Neil Gor­such a chance to make his mark.

Jus­tice Gor­such, who was sworn in Mon­day, can also weigh in on any cases where the court has al­ready heard ar­gu­ments but is fac­ing a 4-4 tie. Ties on the Supreme Court leave the lower court’s rul­ing in­tact.

And he can be­gin shap­ing the court’s caseload, pro­vid­ing yet an­other vote for which cases the jus­tices will hear. Four jus­tices must vote to con­sider a case for it to be granted cer­tio­rari, or “cert,” as court-watch­ers have come to la­bel the high court’s grant of a hear­ing.

“He’s never had the op­por­tu­nity to rule on some­thing like cert in the past, so I don’t re­ally know what his phi­los­o­phy will be on that,” said Car­rie Sev­erino, chief coun­sel at the con­ser­va­tive Ju­di­cial Cri­sis Net­work.

Jus­tice Gor­such had been a cir­cuit ap­peals judge for the last decade, where he gen­er­ally had to hear all cases as­signed to him. But the Supreme Court is se­lec­tive about its docket.

The big­gest case still loom­ing in­volves Trin­ity Lutheran Church in Mis­souri, which had sought money to ren­o­vate its play­ground from a state pro­gram de­signed to im­prove park safety for chil­dren.

The state’s Depart­ment of Nat­u­ral Re­sources (DNR), and later the fed­eral courts, ruled that al­low­ing the church to col­lect grant money would be in vi­o­la­tion of the state’s con­sti­tu­tion.

Trin­ity Lutheran has ap­pealed, ar­gu­ing that the money isn’t just help­ing the church but rather all mem­bers of the broader com­mu­nity who use the play­ground.

Al­liance De­fend­ing Free­dom (ADF), a re­li­gious lib­erty law firm that’s rep­re­sent­ing the church, said Mis­souri is try­ing to treat the church as sec­ond-class cit­i­zens by ex­clud­ing it from a pro­gram open to all non-re­li­gious play­grounds.

“We’re hope­ful that Jus­tice Gor­such will un­der­stand that and see the sig­nif­i­cance of it,” said ADF se­nior coun­sel Erik Stan­ley.

While on the Tenth Cir­cuit Court of Ap­peals, Jus­tice Gor­such ruled on a num­ber of cases con­cern­ing re­li­gious lib­erty, often is­su­ing rul­ings that pro­tected the re­li­gious prac­ti­tion­ers.

Dan Gold­berg, le­gal di­rec­tor at the pro­gres­sive Al­liance for Jus­tice, said that given Judge Gor­such’s views on re­li­gion and his record while on the lower court, it’s po­ten­tially “very trou­bling” the im­pact his vote could have in this case.

Han­nah Smith, an at­tor­ney with the Becket Fund, told The Wash­ing­ton Times that the Trin­ity Lutheran case is sig­nif­i­cant be­cause the last time the court con­sid­ered a sim­i­lar kind of ques­tion deal­ing with the Free Ex­er­cise Clause was more than 10 years ago.

“The court’s com­po­si­tion has changed sig­nif­i­cantly since then, so I think it will be in­ter­est­ing to see how the cur­rent court grap­ples with this ques­tion,” she said. “I think it will be a close case.”

As for cert pe­ti­tions, court-watch­ers won­der whether Jus­tice Gor­such will make the dif­fer­ence in a Colorado case in­volv­ing a baker who re­fused to dec­o­rate a cake for a same-sex wed­ding, cit­ing re­li­gious be­liefs.

“As it cur­rently stands, most court watch­ers think it’s likely that a jus­tice is writ­ing a dis­sent from de­nial of cert,” said Ms. Smith. “But if Jus­tice Gor­such were in­deed the fourth vote in fa­vor of a grant, then the case could be granted.”

Other pe­ti­tions to the high court in­clude gun and vot­ing rights.

Curt Levey, pres­i­dent at the Com­mit­tee for Jus­tice, said he would like to see the court con­sider the Sec­ond Amend­ment is­sue now that Jus­tice Gor­such fills out the court at nine jus­tices.

“He’s prob­a­bly on the con­ser­va­tive side of the Sec­ond Amend­ment cases,” Mr. Levey said.

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