Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
WASHINGTON—Judge Neil Gorsuch, President Trump’s nominee for the U.S. Supreme Court, survived his first day of confirmation hearings on Monday as the Senate Judiciary Committee dug in for battle.
Added to the tension of the high-wire televised proceedings is a tight time frame: Republicans want Gorsuch to be confirmed by April 19, when oral arguments are scheduled for a major church-state case, Trinity Lutheran Church of Columbia, Inc. v. Comer.
Newly confirmed justices must be in court for the oral arguments in a case, or they are not permitted to rule on it.
Missouri-based Trinity Lutheran Church challenged a state law that bars religious schools from receiving public funds. The high court will be asked to address this question: “Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”
In the case, Trinity Lutheran’s preschool applied for a public benefit grant to a state program that helps schools with playground safety improvements, and then filed suit after its application was turned down because the preschool is church-affiliated.
If the justices rule in the school’s favor, the decision could pave the way for school voucher initiatives in states where such efforts have been successfully challenged as a violation of the Establishment Clause.
“Trinity Lutheran is major,” Douglas Laycock, a leading expert on religious freedom issues at the University of Virginia Law School, told the Register. A “win for the church in Trinity Lutheran would be a very big deal, even if they write it narrowly. A win for the state would be nothing much new.”
Can Gorsuch reach the finish line before April 19?
“I will be surprised if the Republicans can push him through by the evening of April 18. Not astonished. But surprised,” said Laycock.
Today, the New York Times laid out the complicated process that lies ahead:
“The confirmation hearings started on Monday and will last several days,” the Times reported.
“In the last three decades, it has taken a median of 15 days from the start of the hearings for the Senate Judiciary Committee to vote, and another nine days for the full Senate to act, according to the Congressional Research Service,” the Times noted.
“That works out to April 13, after the Senate is scheduled to leave town.”
The chairman of the Senate Judiciary Committee, Sen. Charles Grassley of Iowa, has said he will cancel the recess, if necessary, to get Gorsuch to the high court in time.
Still, Teresa Collett, a professor at the University of St. Thomas Law School, questioned whether the Republicans could accomplish this feat.
“I doubt he will be confirmed and sworn in by April 19, when the case is due to be heard,” Collett told the Register.
So what happens if the eight justices rule on the case without Gorsuch?
In the wake of Hobby Lobby’s successful legal challenge to the HHS contraceptive mandate, religious freedom has joined abortion and same-sex marriage as another radioactive “hot button” issue. That means liberal justices will likely vote against Trinity Lutheran, though in 2o12 they joined the rest of the court in a uanimous decision in a landmark case that affirmed a Lutheran school's right to hire teachers without interference from the courts.
The Trinity Lutheran case doesn’t deal with sexual or gender rights. Rather, it provides a chance for a definitive ruling on the constitutionality of a “Blaine Amendment” — a type of state constitutional provision once enacted to marginalize Catholics, with many such laws still on the books.
“The Missouri state constitutional provision at issue in this case is, like many state Blaine Amendments, designed to exclude religious institutions from equal participation in government programs,” explained Mark Rienzi, associate professor at The Catholic University of America, Columbus School of Law, in a 2016 post on SCOTUSblog.
Laycock, for his part, believes the justices – sans Gorsuch—“will be split four-four.”
“This may be one of those cases where they all vote with their tribes,” he said. “But it’s not inevitable.”
The Times suggested that if the court is deadlocked, the justices might get another chance to rule on the case in the fellowing term.
And what happens if Gorsuch is on the court when oral arguments begin on April 19?
If the nominee's record is any indication, Trinity Lutheran may well prevail. Exhibit A for Gorsuch's supporters and his opponents is the judge's appellate-court ruling in favor of Hobby Lobby.
That decision has sparked the wrath of Senate Democrats and their allies who will frame him as an ememy of women and sexual minorities.
“[P]ro-abortion rights groups that have mobilized against the nominee argue that installing Gorsuch on the nation’s most powerful court would erode key health protections for women,” Politico reported on March 20. “Gorsuch’s opponents also worry about what his views on religious freedom could mean for gay rights cases.”
But Gorsuch's ringing edorsement of Hobby Lobby's free exercise rights has also inspired strong support from Republican senators, and that will surely help him complete his mission in record time.