Gorsuch's impact on divided Supreme Court will begin immediately

April 9, 2017 3 AM PT

Reporting from Washington — Neil M. Gorsuch joins the Supreme Court just in time to cast potentially significant votes in cases that pit religious liberty against gay rights, test limits on funding for church schools and challenge California’s restrictions on carrying a concealed gun in public.

Such issues arise either in appeals filed by conservative groups that have been pending before the justices for weeks or in cases to be heard later this month.

Gorsuch’s votes in those matters may give an early sign of whether the court’s conservatives — with their 5-4 majority restored by his confirmation — will pursue an activist agenda.

The cases include a Colorado baker’s claim that he deserves a faith-based exemption from the state’s anti-discrimination law after he refused to design a wedding cake for a gay couple. The justices have been considering his appeal behind closed doors since December, but have taken no action.

The delay may mean one of the justices has been writing a dissent from the majority’s refusal to hear the appeal, or perhaps that the conservatives have been awaiting the ninth justice. Gorsuch is set to be sworn in Monday morning, and when the justices meet in their next private conference on Thursday morning, the new justice will be there.

If the court agrees to take up the issue, “I think Justice Gorsuch would be with us,” said Jeremy Tedesco, a lawyer for the Alliance Defending Freedom, the Arizona-based group that appealed on behalf of the Masterpiece Cakeshop and its owner, Jack Phillips.

Meanwhile, gun-rights advocates are challenging a California law that requires gun owners to show “good cause” before they are issued a permit to carry a concealed gun in public.

County sheriffs enforce this policy, and in San Diego, Los Angeles and other urban counties, permits are rarely granted. In San Diego, for example, officials have taken the position that simply fearing for one’s personal safety is not enough to demonstrate “good cause.”

Gun-rights lawyers have sued, contending this policy violates the 2nd Amendment and its implied “right to self-defense.” But last year, the U.S. 9th Circuit Court of Appeals upheld San Diego’s refusal to grant concealed carry permits and ruled “the 2nd Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.”

In January, Paul Clement, the former U.S. solicitor general under President George W. Bush, filed an appeal in Peruta vs. California, arguing that “millions of … ordinary law-abiding citizens” are being denied their rights to carry guns for self-defense. The justices are set to reconsider that appeal on Thursday. It takes four votes to grant an appeal and decide the case.

This “could be the most important 2nd Amendment case since D.C. vs. Heller,” said UCLA law professor Adam Winkler, referring to the 2008 ruling that for the first time upheld an individual’s right to have a handgun. Since then, “the court has not said the right extends beyond the home and out into the public,” he said.

Meanwhile, on April 19, the court will hear arguments in a long pending religious-rights challenge to state bans on the funding of church schools. About three-fourths of states have constitutions that prohibit spending taxpayer money “directly or indirectly, in aid of any church, sect or denomination of religion,” as Missouri’s Constitution puts it.

Advocates of “school choice” say these laws stand in the way of public funding for religious schools. In January 2016, shortly before Justice Antonin Scalia died, the court voted to hear a Missouri case that challenged these funding bans as reflecting unconstitutional discrimination against religion.

The dispute looks minor at first glance. The Trinity Lutheran Church operates a daycare and preschool center in Columbia, Mo., and it applied to a state program that donates old tires used for “rubberizing” playgrounds. Other nonprofits could obtain the tires, but Missouri officials turned down Trinity’s application because of the state’s ban on funding for churches.

Lawyers for the Alliance Defending Freedom, the Arizona group representing the Colorado baker, sued on behalf of Trinity, contending that the state’s funding ban conflicted with the 1st Amendment’s protection for the “free exercise of religion.”

Despite granting the appeal, the justices did not schedule the case for argument last year after Scalia’s death. And this year, they kept it off the schedule until late April, the final arguments for this term. That led many to assume the justices knew they were split 4-4 on this issue and needed a ninth justice to break the tie.

The Trinity case could mark a major shift in public funding for religious schools. During the 1970s, the high court frowned on tax funds flowing to religious schools on the grounds this aid violated the 1st Amendment’s ban on “an establishment of religion.” Since then, the court has slowly backed away from what was formerly described as the “wall of separation between church and state.”

In 2002, the justices upheld a state’s policy of giving money vouchers to parents to pay for tuition at private and parochial schools. The 5-4 opinion stressed that this money went to parents, not directly to religious schools.

But Justice Clarence Thomas, joined then by Justices Scalia and Anthony M. Kennedy, said the court should go further and strike down the state bans on funding religious schools. He said these so-called Blaine amendments were “born of bigotry” against Catholics in the late 19th century. The name refers to Rep. James Blaine, a House speaker and unsuccessful Republican presidential candidate who had sponsored a constitutional amendment to forbid public funding of religious schools. His amendment died in the Senate, but it was adopted by many states.

The theme of anti-Catholic bias is echoed in the Trinity case. “The Blaine amendments are vestiges of 19th century bigotry, not some high-minded statement about church-state relations,” said Richard Komer, a lawyer for the Institute for Justice, a libertarian group that promotes school choice and has urged the court to strike down the state funding bans.

Among those arguing in defense of Missouri are lawyers for the ACLU and other liberal groups. They say the U.S. Constitution has never been read to require public funding for a church. “The Missouri Constitution reflects a tradition of not supporting churches and religions that dates back to the founding generation,” said Daniel Mach, director of the ACLU’s Program on Freedom of Religion. “The church is asking the court for the first time to force state taxpayers to give direct grants to houses of worship.”

But Stanford law professor Michael McConnell, a former federal judge who served with Gorsuch, said the court may want to make clear that the government may not discriminate against religious entities. States need not offer subsidies to private schools, he said, or in this case, donate scrap tires to nonprofit organizations. But once they do so, he contended, they may not exclude a church-run daycare center. “This involves a singling out a religious entity for disfavorable treatment,” he said.

Gorsuch took a pro-religion position as a federal appeals court judge in Denver. In the Hobby Lobby case, he voted in dissent for giving a religious exemption to a Christian family business that refused to pay for certain contraceptives for its employees. And he dissented twice when the appeals court ruled against a county’s official display of the Ten Commandments and a state’s program for erecting crosses along the highway to honor fallen state troopers.

Though the high court may opt to bypass the cases of the Colorado baker and California gun laws, the justices are expected to issue a written ruling in the Trinity case before leaving on their summer recess.

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