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August 17th, 2017

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Kaine defends distortion of Gorsuch's views

Ramesh Ponnuru

By Ramesh Ponnuru Bloomberg View

Published April 4, 2017

Kaine defends distortion of Gorsuch's views

Sen. Tim Kaine is going to great lengths to pretend that Judge Neil Gorsuch may wish to overturn the right to contraception that has been part of the Supreme Court's jurisprudence for more than 50 years. The Virginia Democrat is twisting Judge Gorsuch's words for this purpose.

Those words come from a case in which Hobby Lobby, the craft-store chain, sought an exemption from the Obama administration's requirement that its health-insurance coverage include forms of contraception to which it objected. The Religious Freedom Restoration Act says that a government may impose a substantial burden on a believer's exercise of religion only when it is the least restrictive means of furthering a compelling governmental interest. Otherwise, the believer has to be exempted from the policy that imposes the burden.

A district court in the 10th Circuit held that Hobby Lobby did not qualify for the exemption because its exercise of religion was not substantially burdened. It was not substantially burdened, the court held, because the government policy did not require Hobby Lobby's owners to use or encourage the use of the contraceptives.

Gorsuch, one of the judges reviewing the decision, explained why he disagreed with this reasoning. Given that the owners objected to the use of contraceptives, he wrote, requiring them to provide coverage for them made them, in their own view, unacceptably complicit in a wrong. And it was not for a court to tell the owners that their view of the demands of their religion-based morality was mistaken.

Gorsuch begins his opinion by highlighting the key issue: "All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others."

He explained that the Green family, Hobby Lobby's owners, rely on their faith to help them answer that question:

"As they understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows....

"No doubt, the Greens' religious convictions are contestable. Some may even find the Greens' beliefs offensive. But no one disputes that they are sincerely held religious beliefs....

"[I]t is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes "too much" moral disapproval on those only "indirectly" assisting wrongful conduct. Whether an act of complicity is or isn't "too attenuated" from the underlying wrong is sometimes itself a matter of faith we must respect."

No fair reader will conclude from any of these words that Gorsuch intends to endorse the view that using the contraceptives in question is "wrongdoing." He is very obviously presenting the Greens' view that it is wrongdoing, and their view that the Obama administration's regulation requires them to comply with wrongdoing. He is saying that the religious-freedom law protects these views.

Kaine, seeking to justify a filibuster against Gorsuch, tweeted that the judge "has cavalierly referred to contraceptive use -- a constitutionally protected right for 50+ yrs - as 'the wrongdoing of others.'" But Gorsuch did not call contraceptive use "wrongdoing" at all, let alone do so "cavalierly."

Several media outlets, including the Richmond Times-Dispatch, pointed out Kaine's distortion. So he has produced 1,300 words of misdirection and bluster to make it sound as if his characterization is a thoughtful conclusion rather than political hackwork.

It worked on The Washington Post's fact-checker Michelle Ye Hee Lee, who concluded that while Kaine's tweet was in itself misleading, his essay in defense of himself makes it "clear that Kaine is making an interpretation of Gorsuch's phrasing, and arguing why he interprets it as such." Since his interpretation and argument are matters of opinion, she declines to fact-check them.

Kaine makes two arguments in passing. One is an appeal to his authority: He has clerked for appeals courts, practiced law, and read many Gorsuch opinions. This is evidence that Kaine is capable of reading Gorsuch's opinion in Hobby Lobby competently. It is not evidence that he is doing so honestly.

The senator's second argument is that Gorsuch could have ruled that Hobby Lobby had a right to sue under the Religious Freedom Restoration Act, but that he went out of his way to rule that the Green family also had that right. So did three other judges in Gorsuch's circuit, including an Obama appointee. But even if Gorsuch's judgment on this issue was as "unusual" as Kaine claims, it does nothing to establish that Gorsuch takes the view of contraception that Kaine attributes to him.

Kaine's main argument is that Gorsuch didn't have to write about complicity and wrongdoing at all to decide the case, and his doing so was "gratuitous and insulting." All he had to do, according to the senator, was decide whether Hobby Lobby could sue the Obama administration under the religious-freedom law. Kaine claims that's how other courts, including the Supreme Court, decided the issue.

He is demonstrably wrong about all of this. First, many courts that considered the case did not confine themselves to the question of whether Hobby Lobby could sue under the act; they also considered whether Hobby Lobby should win the suit, as the Supreme Court concluded.

Second, answering that question -- whether the company should win the suit -- did indeed require courts to consider the exact issues Gorsuch took up. They had to try to accurately describe the Greens' objection to the Obama administration's regulation: which is, again, that compliance would make them immorally complicit in wrongful acts. And the courts had to decide whether fining the company for failing to act in what the owners considered to be complicity with wrongdoing amounted to a "substantial burden" under the law.

Third, other courts raised these issues, too. The district court ruled the way it did because it didn't take seriously the Greens' concern about complicity. Gorsuch had to explain that concern in order to argue against the district court's ruling. When the Supreme Court took up the case, it split over this exact issue: Is the company subject to the regulation because it's only indirectly involved in contraceptive acts, or is it exempt from it because it considers that indirect involvement immoral in itself?

Liberal academics who side with Kaine about Hobby Lobby, by the way, have been clear in explaining that the issue is whether religious believers should be required to do things they think render them "complicit" in wrongdoing. These academics think the answer is yes.

You can agree with them, although I wouldn't recommend it. What you can't honestly maintain is that Gorsuch's argument about complicity is gratuitous, insulting or out of line with the Supreme Court. Nor can you honestly maintain that Gorsuch ever wrote that the use of contraception amounts to "wrongdoing."

Kaine wants to have his distortion, and his reputation for being a nice, thoughtful, high-minded guy. That's why he's hiding behind flimflam dressed up in the language of the law.

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Ramesh Ponnuru has covered national politics and public policy for 18 years. He is an author and Bloomberg View columnist.


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