After a Supreme Court vacancy of more than a year, on Friday April 7, Judge Neil Gorsuch, 49, of Colorado’s 10th Circuit of Appeals was confirmed 54-45 to fill the Associate Justice seat held by Antonin Scalia who passed away in February 2016. The votes were cast on party lines with all Republicans and three Democrats voting affirmatively. Gorsuch’s confirmation, which was made possible through Senate Majority Leader Mitch McConnell deploying the so called “nuclear option” which enabled confirmation through a simple majority instead of the previous threshold of 60 votes, follows months of a contentiousness between Republicans and Democrats who were upset that President Obama’s nominee Merrick Garland never received a hearing.
Gorsuch, who holds the originalist view of the Constitution espoused by Justice Scalia restores the conservative-liberal balance of the court. Gorsuch who once served as a clerk to Justice Anthony Kennedy will be the first Supreme Court justice to serve alongside a justice for whom he previously clerked. He will be sworn in on Monday April 10.
One of Gorsuch’s first cases will be Trinity Lutheran Church of Columbia, Inc. v. Pauley, which is reported to be one of the biggest church-state cases in recent history. The 2013 lawsuit concerns the Trinity Lutheran Learning Center, a preschool at Trinity Lutheran Church in Columbia Missouri which was denied state funds to improve the surface at its playground by replacing gravel with a recycled rubber material. The state of Missouri denied the funds on the basis of the Blaine Amendment, an 1875 Missouri Constitutional amendment which prohibits federal funds from being used “in aid of any church”. The lower court’s ruling was upheld by the 8th Circuit Court of Appeals in 2015.
Trinity has significance in that it raises the question of whether excluding churches and church affiliated institutions from a neutral and secular aid program violates the “Free Exercise and Equal Protection clauses” when a state has no valid “Establishment Clause” concern. Said another way, the envelope could be pushed to the point where a religious affiliated institution is denied government funded fire or police protection. Furthermore, the case has tremendous national importance in that 37 states have a law similar to Missouri’s on their books.
Judicial analysts maintain that Judge Gorsuch’s past record shows a propensity for supporting the concept that religious institutions should still be eligible to receive government funding.
Suffice it to say, Trinity will be a very closely watched case as the ruling could set a super precedent. Trinity is scheduled to be heard by the Supreme Court on April 19.
Image: Modified from: White House official photographer – https://twitter.com/POTUS/status/826643298022522880, Public Domain, https://commons.wikimedia.org/w/index.php?curid=55708982