The Nomination of Neil Gorsuch to SCOTUS – Part II

The Value of Human Life, and Religious Liberty – concerns and hope

Judge Gorsuch’s judicial record does not indicate a jurisprudential position on abortion.  Troubling many Christians and constitutional conservatives, Gorsuch,  in one case, disconcertingly referred to an unborn child using the fetal viability vernacular of the secular left. Of further concern, Gorsuch admits that his position on the value of human life is founded on “secular moral theory and the common law….” These facts and others (e.g., he attends a liberal church that openly supports the pro-abortion and pro-LGBTQ agendas) have many concerned about the jurisprudential worldview lens through which he sees the world. Others worry he might hide behind the importance of following precedent (wearing it like a fig leaf) to let the Court’s unconscionable Roe v Wade abortion decision stand. To be sure, we cannot know for certain.

In his book “The Future of Assisted Suicide and Euthanasia” he shared his personal values concerning the protection of life:

We seek to protect and preserve life for life’s own sake in everything from our most fundamental laws of homicide to our road traffic regulations to our largest governmental programs for health and social security.

 In this regard, he states “that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” Again though, he reaches this conclusion using “secular moral theory and the common law….” And so Gorsuch would  “preserve life for life’s own sake” rather than because we are made in the very image of God.  If constitutionally conservative Christians were hoping that Gorsuch sees the world through the same worldview lens as they do, they may be disappointed. They should at least be encouraged that he concludes that, at least for the time being, all human life is intrinsically valuable.

If he sees intrinsic value in all human life (albeit through a secular worldview lens), and if the evidence supporting his asserted understanding of the proper role of the Constitution is truthful, then some hope exists that he will end the American jurisprudential tragedy that ends so many lives of unborn sons and daughters.

Judge Gorsuch also has a record that seems to reflect a willingness to protect the free exercise of religious conscience as a limit on the exercise of government power promoting abortion. His concurring opinion in Hobby Lobby v. Sebelius (10th Cir. 2013), and his involvement in Little Sisters of the Poor Home v. Burwell (10th Cir. 2015), recognized the Religious Freedom Restoration Act as a limit on the government’s authority to force citizens to violate their sincerely held religious beliefs – in the context of Obamacare’s abortifacient mandate. This is important in that Congress enacted RFRA to restore a high level of judicial scrutiny on government actions that substantially interfere with a citizen’s free exercise of religious conscience.

What remains unclear is what Judge Gorsuch will do when faced with the inevitable collision of First Amendment rights expressly stated in the Constitution, and LGBTQ personal autonomy/ identity rights judicially invented by the Court. Will two men have a right to get married in your church by your pastor or will the First Amendment continue to protect your pastor’s sincerely held religious conscience to not participate in a worship service that violates God’s sacred teachings. Will American pastors, like those in the United Kingdom, face criminal prosecution for quoting passages of the Bible concerning sexuality – or will Freedom of Speech continue to serve as a limitation on the exercise of Government power? Underlying these issues is a more important question: What is the jurisprudential worldview lens through which Judge Gorsuch views law, liberty, and constitutional good governance? Perhaps somebody during the confirmation process might ask him.

Written by 

William (@Prof.WWJD) serves as President of Salt & Light Global and Editor-in-Chief of SLG Witness. Together, he and his bride Marilyn home educated their children. Prof. Wagner holds the academic rank of Distinguished Professor Emeritus (Law and Constitutional Governance) where, as a tenured professor, he received the Beattie Award for Teaching Excellence. A frequent speaker at world conferences, Professor Wagner has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression. Professor Wagner’s writing is published a number of articles, books, and other publications, including a national best seller (#1in its category). As lead amicus counsel a variety of matters before the United States Supreme Court, he authored briefs on behalf of various Christian organizations. He also authored written testimony, evidence, and briefs in such forums as the Swedish Supreme Court, the U.S. Congress, and the U.K. Parliament. He has further addressed many executive, legislative, parliamentary, and judicial audiences throughout the world, and presented at various diplomatic forums including the United Nations Human Rights Council in Geneva. Professor Wagner previously served in the United States Courts as a federal judge. Prior to his appointment on the federal bench, he served as a legal advisor and the chief American diplomat for the Department of Justice at an American Embassy in Africa. There he led a diplomatic mission charged with strengthening good governance and the rule of law. His international service also includes an appointment by the United States Courts as Commissioner to Canada. Over the years, Professor Wagner has provided international assistance to the justice sector institutions of numerous countries on five continents. Professor Wagner also served as Senior Assistant United States Attorney, litigating hundreds of federal cases and serving as chief of appellate litigation for the Office of the United States Attorney. Prior to serving in the Justice Department, Professor Wagner served as legal counsel in the United States Senate and as chief counsel to the Senate Judiciary Committee of the Michigan legislature. As chief counsel, he supervised all legislative issues involving the separation of powers, due process, and other protections of individual rights and liberties, including the right to free expression and the free exercise of religious conscience. Professor Wagner received the post-doctoral Danforth Fellowship in Law after earning his J.D. in 1986. He serves, or has served, on the executive governing boards of a number of international and national ministries. Soli Deo Gloria.

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