It’s bad enough that Virginia Sen. Tim Kaine has decided to oppose the nomination of Neil Gorsuch, a superbly qualified candidate for the Supreme Court. But it’s even worse to smear the man in the process.
Kaine’s statement announcing his decision focuses on a single issue: reproductive rights. In it, he says Gorsuch “has cavalierly referred to contraceptive use as ‘the wrongdoing of others.’ ” Then he repeats the point, claiming that Gorsuch has framed “women making their own health decisions as ‘the wrongdoing of others.’ ”
This is simply false. And Kaine should know it.
The “wrongdoing of others” language comes from Gorsuch’s 10th Circuit opinion in the Hobby Lobby case, which asked whether the Religious Freedom Restoration Act (RFRA) gave protection to a company that did not want to provide contraception health benefits as required by Obamacare regulations.
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In his opinion, Gorsuch begins with a general observation about moral obligations, then explains what Hobby Lobby’s owners, the Green family, believe to be theirs.
Here is what Gorsuch wrote (emphasis added):
“All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.
“As the Greens explain their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong. No one before us disputes that the mandate compels Hobby Lobby . . . to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg. No one disputes that the Greens’ religion teaches them that the use of such drugs or devices is gravely wrong.”
Had Gorsuch been writing about, say, Employment Division v. Smith, he would have noted that Alfred Leo Smith and Galen Black felt morally obliged to use peyote in their Native American religious rituals. Would Kaine then accuse Gorsuch of endorsing hallucinogens?
To conclude from the passage above that Gorsuch himself views contraception as morally wrong is pure nonsense. Kaine’s policy views and ours differ in several respects, but we have always thought of him as a deeply honorable public servant — which is why his smear against Gorsuch is so disappointing. It suggests he can’t come up with a defensible reason to oppose the nomination. But inventing one like this is indefensible.