Gorsuch calls this "the duty of candor."
Sassa says civics teachers are using these hearings as lesson, so asks Gorsuch to explain why we have a bill of rights.
Gorsuch: Constitution is negative document. Theory was to divide power, the better to protect liberty. Founders had "too much evidence" of that in their time.
Gorsuch: Combination of Enlightenment theory and "battlefield," practical experience
Gorsuch: "You," Congress, Article I, write laws, then signed by president, Article II, who executes. Our role is to decide cases and controversy among people of law as is. Then federalism -- what federal government doesn't enjoy, left to states as sovereigns. Also tribes.
Gorsuch: Founders saw this structure as main way to protect liberty, but suspicious, so added bill of rights.
Now we move to Sen. Chris Coons (D-Del.)
Coons: Through concurrence, you added that owner family entitled to religious protections, not just company. Why did you choose to discuss "complicity" as concept in your decision?
Gorsuch: Higher protection in American law -- strict scrutiny -- granted by Congress because it wasn't happy with earlier court decision (by Scalia), case called Employment Decision v. Smith.
Coons insists on this idea of complicity.
Gorsuch: What is a sincerely held religious belief? People involved were Christian, as they interpreted their religion, it was a sin to allow certain contraceptive devices violates belief.
Coons: Doesn't complicity open up a very broad connection -- through a trust, or for-profit corproation -- from these sincerely held beliefs?
Coons quotes Judge Brisco -- says there was no support that for-profit corp had free exercise protections. Coons: Won't this open up floodgates?
Coons: How far does this "newly-injected concept" of complicity go?
Gorsuch: Not a new concept at all. In enacting RFRA, Congress returned to earlier case law. For instance, complicity in war-making.
Coons: Those cases don't implicate others' liberty interests.
Coons: 13,000 individuals affected in Hobby Lobby issue.
Gorsuch: We're mixing apples and oranges. First question is sincerely held belief -- no one doubted that the Greens (who own Hobby Lobby) sincerely believed.
Coons: Refers again to Judge Brisco, says "category-shattering" to extend protections to for-profit, previously only non-profits had been protected
Coons: Why did you include as person a for-profit corp?
Gorsuch: RFRA is a statute, uses term "person," but doesn't define. So we turn to Dictionary Act, which includes corporations as person.
Gorsuch: The law as drafted does not distinguish between natural persons and corporations. In fact, government conceded that non-profit corporations have been given protections.
Coons: Yes, but a big leap to go to for-profit corporations. Also, Dictionary Act says it only applies unless context indicates otherwise. Congress wanted to restore strict scrutiny with RFRA, not open door for for-profit corporations. Does Congress' intent have any relevance to your interpretation?
Gorsuch: SCOTUS had recognized challenge by Orthodox Jewish shopkeeper to Sunday closing laws -- that's a for-profit corp, so there is precedent.
Gorsuch: Your position is a fine one that was adopted by some justices, but not a majority.
Coons: When do we stop with allowing right of one to implicate right of others?
Coons: How do you find a limiting principle?
Gorsuch: Court acknowledged that gov had compelling interest, so suggested a compromise could be reached that wouldn't implicate the Greens. Other groups had exceptions (like churches).
Coons: In 10th Circuit, you hadn't recognized this contraceptive access as compelling interest.
Gorsuch: Believe it was a matter of previous cases.
Coons is now going through some hypotheticals of more minority groups (like scientologists).
Gorsuch: Congress could say RFRA doesn't apply to a statute, or variety of other decisions. Congress controls. "It's your decision, not mine."
Coons: How do you draw compelling interest line? If Greens knew employees would spend paychecks on gambling or prostitution, could they not endorse paychecks?
Gorsuch: We would do the same analysis. Is this a sincerely held belief? Sometimes plaintiffs don't.
Coons: What's difference between spending paycheck on things versus using it to make decision between multiple contraceptive options, only some of which Greens may object to
Gorsuch keeps saying would need to look at facts
Coons: Case of Amish man who refused to pay social security taxes. Court rejected. Still good law?
Gorsuch: In deciding RFRA case, would certainly need to look at this case, yes.
Coons: Scheme for social security compelling but health care isn't?
Gorsuch: The problem in latter was about being narrowly tailored -- government could have gotten health-care goal without implicating Greens.
Coons: Because of Hobby Lobby do we have to see laws as presumptively invalid if it offends religious belief?
Gorsuch returns to the steps of analysis -- sincere belief, legitimate interest, narrowly tailored
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