The Nomination of Neil Gorsuch to SCOTUS – Part II


Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

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.

About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

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