What we really know about US Supreme Court nominee Neil Gorsuch based on his controversial Hobby Lobby decision

Word surgeon.
Word surgeon.
Image: Reuters/Joshua Roberts
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Appellate judges like Neil Gorsuch follow logical propositions to conclusions, based on an existing set of rules. It’s a very narrowly circumscribed gig.

Of course, judges have personal outlooks and philosophies, too. Gorsuch—nominated by US president Donald Trump on Jan. 31 to fill the vacancy on the US Supreme Court left by the late justice Antonin Scalia—is a conservative and a strict constructionist when it comes to textual analysis. If confirmed, he’ll stick to the language of the law, attempt to discern the intent of its writers, and let the text dictate his conclusions.

Liberal judges see more leeway in interpretation, viewing text as guidance. But they also employ a mode of analysis and follow rules. Either way, conservative or liberal, that’s legal reasoning, and appellate judges are masters at it.

The method behind the madness is generally not apparent, however, and there’s not much room for extensive reasoning in news reports covering the rulings. So, incredibly complex decisions tend to end up boiled down to outrageous nuggets.

Hobby Lobby v. Sebelius, Gorsuch’s controversial 2013 case, is one such matter. It’s characterized by many as evidence that he’s a disaster for women and supports the idea of treating corporations like people.

But the case doesn’t hinge on the judge’s position on women. Nor did Gorsuch invent the notion of corporations as people; there’s precedent for that in American law, which the majority of the 10th Circuit Court of Appeals relied on in its decision. Five judges agreed on the three major issues at stake, and Gorsuch wrote a concurrence to clarify his view on religious freedom.

Here’s the short story of the case.

The Hobby Lobby health insurance challenge

Hobby Lobby is a chain of arts-and-crafts stores owned by the Green family of Oklahoma City. The family also owns a Christian bookstore chain, Mardels. The Greens sought an injunction on behalf of their corporations, claiming an exemption from state-mandated insurance because it included payment for four abortifacients (contraceptions that abort fetuses), which they said violates their faith and their right to free religious exercise.

Failure to provide the insurance to employees subjected the companies to daily fines. The request for an injunction was denied by the district court and the Greens appealed.

Issues on appeal

Gorsuch and the appellate court were called upon to decide three major issues. The first was whether the corporations were “persons” exercising religion under the Religious Freedom Restoration Act (RFRA). Second, if they were people, was their right to religious exercise substantially burdened by the government’s insurance requirements? Finally, if there was a substantial burden on the plaintiffs, had the government demonstrated a narrowly tailored, compelling interest for it?


The majority of the court held that the companies were entitled to protection under RFRA—in other words, the corporations were legal people. They also found the government mandate to provide insurance that violated their beliefs substantially burdened the companies’ exercise of religious freedom. Finally, they said the state showed no compelling interest for this burden as evidenced by the fact that there were numerous other exceptions to the requirement Hobby Lobby was challenging (the insurance requirement only applied to businesses of a certain size, for example).


To arrive at these conclusions, the court went through an extensive analysis in dozens of pages. Take the corporate person question, for example. The court’s discussion is technical—a textual analysis that does not address the morality of corporations as legal people, but looks at rules about how to find a definition when it’s missing.

Since the RFRA statute itself doesn’t define “person,” the court referred to The Dictionary Act. It instructs: “In determining the meaning of any Act of Congress, unless the context indicates otherwise, the word ‘person’…include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” The opinion states, “Thus, we could end the matter here since the plain language of the text encompasses ‘corporations.'”

But it went on analyzing the issue in prior cases that found corporations entitled to the same protections as people under the law. In other words, no one made any of this stuff up; judges, as a rule, look to prior decision to make decisions.

The majority concluded that the Supreme Court has settled that individuals have Free Exercise rights with respect to their for-profit businesses, writing “[S]incerely religious persons could find a connection between the exercise of religion and the pursuit of profit. Would [a] kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?”

Gorsuch’s concurrence

Gorsuch’s concurring opinion addressed the religious freedom question. He urged understanding, not because he agreed with the religious views held by the plaintiffs necessarily.

“All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others,” Gorsuch wrote. Religion provides an essential source of guidance for some, including the plaintiffs, whose faith dictates what is wrongful conduct and their moral culpability in other’s acts. He explained, “Understanding that is the key to understanding this case.”

The government in challenging the injunction didn’t dispute the fact that its insurance mandate forced the Greens to violate their faith. Gorsuch noted that why the family drew the line at those four contraceptives was not for the court to judge, based on Supreme Court precedent.

He acknowledged that the family’s views were reprehensible to some. ”No doubt, the Greens’ religious convictions are contestable,” Gorsuch wrote. “Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs…And to know this much is to know the terms of the Religious Freedom Restoration Act apply.”

The Act doesn’t just apply to protect popular religious beliefs, Gorsuch reminded. “It does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance,” he wrote.

On judges and judgment

In assessing Trump’s pick of Gorsuch for the masses, the media is turning Hobby Lobby into something of a dog whistle for feminists. Slate called Gorsuch “hostile to women’s health care” based on the case. Bustle asked if he’d be a “good bet for women” and Cosmopolitan warned that his decision was “the canary in the coal mine” signaling the beginning of the end for women’s rights to contraception.

This ignores the fact that contraception wasn’t really the question—religious freedom was. Gorsuch called for tolerance of unpopular religious views, which is not quite the same as condemning birth control, or women. For now, his positions on abortion, for example, are unknown; he hasn’t opined on Roe v. Wade.

Reasonable conclusions require reflection and knowledge, and Gorsuch seems too complex to sum up in fast facts. It’s tempting to rush to judgment, but as any good judge knows, circumspection is usually best.