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An Insider’s View on Big Cases Before the U.S. Supreme Court


David Cortman, Senior Counsel & Vice President of U.S. Litigation at Alliance Defending Freedom, speaks about President Trump’s nominee to fill the seat of late Justice Antonin Scalia on the United States Supreme Court, as well as some of the most important cases related to religious liberty on which the court is likely to rule or to take up in the near future.

David Cortman speaks about Supreme Court

Family Policy Matters
Transcript: An Insider’s View on Big Cases Before the U.S. Supreme Court

INTRODUCTION: Thanks for joining us this week for Family Policy Matters. Our guest today is David Cortman, Senior Counsel and Vice President of U.S. Litigation with Alliance Defending Freedom, an alliance-building non-profit legal organization that advocates for the right of people to freely live out their faith. We will be talking with David about President Trump’s nominee to fill the seat of late Justice Antonin Scalia on the United States Supreme Court, as well as some of the most important cases, especially those related to religious liberty, on which the court is likely to rule or to take up in the near future.

David, welcome to Family Policy Matters. It’s great to have you with us on the show.

DAVID CORTMAN: Thanks for having me on again.

JOHN RUSTIN: It’s a pleasure. David, the Supreme Court currently has one vacant seat as a result of the passing of Justice Antonin Scalia last year. President Trump, of course, has nominated Judge Neil Gorsuch. Tell us a bit about the credentials and qualifications of Judge Gorsuch that have prepared him to be considered for a seat on our nation’s highest court?

DAVID CORTMAN: They’re very impressive when you look at them. Starting at his education, he’s got degrees from Columbia and Harvard and Oxford—so very impressive on the educational background. He was a judge on the 10th Circuit Court of Appeals; he clerked for several Supreme Court Justices. So all the way back, he worked for the attorney general’s office; he worked in private practice—so a pretty substantial and impressive resume going back to his education.

JOHN RUSTIN: That does sound impressive, also, considering he’s only 49 years old. So a lot of great experience there and a lot that seems to have prepared him well for a seat on the nation’s High Court.

DAVID CORTMAN: I think so and I think that’s one of the things that we always look at, is what is the track record of the person that is nominated. Sometimes you have people that are running for office or for a judicial seat and there’s simply no record of their background or where they stand on different types of issues, and so it’s certainly helpful to have someone who has such a deep and impressive record.

JOHN RUSTIN: Absolutely. And speaking of track record, has Judge Gorsuch ruled on any of the cases of particular interest to the work of organizations like Alliance Defending Freedom and NC Family, particularly relating to topics like religious freedom, free speech, marriage, school choice, or sanctity of human life? What do we know, or what can we infer, about his judicial philosophy from those or other rulings?

DAVID CORTMAN: There’s quite a bit out there. First of all, with what you mentioned about judicial philosophy, he has written about Originalism. In other words, what he said was that judges are charged with applying law according to its original public meaning, so he talks about Originalism. He’s got writings about Conservatism and judicial restraint. For example, about judges to apply the law as it is focusing backward what the Constitution says, not forward, but then looking into the text and structure in history to decide what that document means. So, we have these principles in play of Conservatism and Originalism, and then we also have specific opinions. For example ADF worked on the Conestoga Wood case which was matched up with the Hobby Lobby case that many people know about. And he wrote an opinion when it was at the 10th Circuit of Appeals, and the impressive part of that was that the government was second-guessing the religious beliefs of those families involved in that case. And Judge Gorsuch basically said, “It’s not for secular courts to rewrite the religious complaint of a faithful inherent.” In other words, the courts are not supposed to second-guess whether some activity is conformity with your religious beliefs or not. And so, there’s been several opinions where that theme comes out about the freedom of religion and people to practice it, but not have the government second-guess that freedom.

JOHN RUSTIN: Has Judge Gorsuch done any writing on issues related to life? I seem to recall that he has written something about assisted suicide for example.

DAVID CORTMAN: That’s exactly right. He’s actually written about issues in life and about protecting life, and as you mention, wrote about assisted suicide. And so it’s one of those things, not only in the cases that were before him that you could read his views, but also in what are called extra-judicial writings. Whether in different types of documents he’s written, but also a protector of life, and of course that’s something that we think is extremely important.

JOHN RUSTIN: David, of course, President Trump has nominated Judge Gorsuch. What is the confirmation process that he must go through now with the United States Senate and do you have any expectation of how long that process might take?

DAVID CORTMAN: Hehe. I mean it’s…. I laugh because it really depends on what the Democrats do. And so my understanding is hopefully the confirmation hearings will begin sometime in the beginning to the middle of March. And then, once it comes out of the confirmation committee, then it goes to the full Senate. So depending on how long it’s taking, if the Democrats decide to filibuster. This is a mainstream candidate who has his views already known, his writings are out there, excellent reviews from every type of body that’s accredited him, intellectual, just high marks all the way around. So it shouldn’t take that long. My guess is the proper time should be about a month to a month and a half, but I’ll be interested to see, as many people are, what the Democrats will do, if they’ll try to filibuster and stop the nomination.

JOHN RUSTIN: In the meantime, the Supreme Court is continuing to consider cases of great import to our nation. I know that you serve as lead counsel on one of those cases,Trinity Lutheran Church of Columbia v. Pauley. Tell us a little bit about that case and how the timing of this confirmation process might have an affect on it.

DAVID CORTMAN: The case is basically about—people have heard of the separation of church and state, the Establishment Clause, and of course, the Freedom of Religion/Free Exercise principles—and in this case, what’s interesting is we represent a church who was improving its playground. They actually—the church—runs a pre-school center and they decided to improve their playground. The state of Missouri had a recycling program. It was a great program where they take recycled tires, trying to get them out of dumps and off the sides of highways and different places, and they recycle those and use the rubber for playground surface so it’s safer for the kids when they fall off the monkey bars or whatever. The church applied for a grant, basically just to resurface the playground, to put this rubber surfacing on. And although they complied with all of the criteria, all the application process, everything that the state required, once they realized that this pre-school was operated by a religious organization, they said because of their state constitution, the state ‘separation of church and state,’ they could not receive this grant even though every other similar organization could. And even though they ranked better than all but four of the different organizations that applied for it. So, we filed the lawsuit arguing that it violated both their Free Exercise and Equal Protection rights and the reason for that is, in our opinion, a religious organization shouldn’t be treated worse than a secular organization. It should be given equal access on an even playing field and someone should not be punished or excluded from a general government benefit program— especially when it relates to safety—merely because of their religious faith.

JOHN RUSTIN: Interesting! We’ll definitely be watching that with great interest. Another case that the High Court is poised to hear in late March could certainly have direct implications for North Carolina and that is the case of Gloucester County School Board v. G.G. or Gavin Grimm, which involves restroom and locker room access policies in public schools. This is an identifying transgender student who is biologically female but wants to identify as a male and have access to boys’ bathrooms in public schools in Virginia. What is at stake in that case and how do you think the makeup of the Supreme Court could impact the result here?

DAVID CORTMAN: A very, very important case for all over the country—for the entire country! And that is when we leave the education of our kids in the hands of local and state officials, the question is: do we want students of a particular sex, for example, in that case if someone is born a female, just because they self-identify as the opposite sex, in this case a male…. In fact, ADF has several cases across the country where there are students who are biologically male who perceive themselves, in other words they just think that they’re females, that they should have legal access to restrooms, locker rooms, showering facilities, sleepovers with the opposite sex…. And our point at ADF is that we should respect the privacy of all students. And there’s ways to accommodate these transgender students who are professing the opposite sex but not to basically give them unfettered access to restrooms of the opposite sex. So, this is a case with giant implications, safety concerns and privacy concerns for students all around the country.

JOHN RUSTIN: No doubt and particularly in North Carolina, as we have been battling the whole issue surrounding House Bill 2, which the North Carolina General Assembly passed to ensure exactly what you’re talking about: privacy, safety and dignity of all citizens in public bathrooms, showers, locker rooms and similar facilities in North Carolina.

David, ADF has also petitioned the Supreme Court to consider a case involving a cake shop owner in Colorado who has been punished for declining to promote and celebrate same-sex marriage though his business. In other words, baking cakes for same-sex weddings and really, what he believes, would be a violation of his religious liberties. What has happened in this case and similar cases and have any of them made it all the way up to the Supreme Court?

DAVID CORTMAN: Yes. Another greatly important case for the freedoms of Americans to live and work according to their faith. This case is actually sitting at the Supreme Court where we’ve asked them to review the case. They’ll conference, I believe, at the end of the week and we should know by next week. It’s extremely important. And the easiest way to describe this is we’ve seen for example when President Trump had his inauguration, there were people who didn’t want to, for example, bake the cake, didn’t want to make the First Lady’s dress. They said, ‘Look, this is something we don’t agree with and so because this is our creative talent and our expressive messaging, our speech, we refuse to do so and we think they have a right to do so. Yet, what happens is the left doesn’t apply those same courtesies to folks who don’t want to participate, for example like our client Jack Phillips, in promoting and participating in a same-sex marriage. And so we have this kind of double standard going on where people who have a religious belief that marriage is between a man and a woman should be forced to endorse the message, or speak a message that they disagree with, and yet they take those same freedoms to oppose, for example in this case, President Trump and his election. And so the point of the case is, look, people look should have the right to express messages they agree with. They shouldn’t be forced by the government under penalties—some of our cases, there’s fines and jail time and bankruptcy that loom for the clients. And we just think that all Americans should have the freedom to live and work according to their faith without punishment from the government.

JOHN RUSTIN: We have actually seen in the early days of our legislative session this year, bills introduced in the North Carolina General Assembly that would not only repeal House Bill 2 in it’s entirety, but this legislation would actually impose upon the state a standard that recognizes sexual orientation and gender identity as legally protected classifications, like civil rights protections. And we have been working to convey to legislators and others, that these are exactly the kinds of laws and ordinances that have been used in states and municipalities across the country to go after these business owners who are simply trying to operate their business in a peaceful way in accordance with their deeply and sincerely held religious beliefs.

DAVID CORTMAN: Absolutely, and in fact our country has long accommodated religious belief on a lot of different issues. And what’s interesting here, which I think is either not grasped purposefully by some on the left is this type of freedom protects everyone: It doesn’t matter whether you hold religious beliefs or not. If there’s no religious freedom protection, there are no other types of protection. You look at any country that doesn’t have true religious freedom; they also don’t have free speech, freedom of the press, free exercise, everything else falls. And so, in these types of instances, the principle that we’re fighting on behalf of protects everyone, regardless of your religious beliefs and that you shouldn’t be punished to participate in a message, to participate in an act that violates your religious beliefs or violates your rights of conscience, or whatever it happens to be. And that principle protects everyone! Whereas now, we have folks on the left trying to force people to accept different messages and different events and promote those they disagree with. We just think that not only is it wrong but it violates fundamental fairness for the government to punish people to act in the way that they choose not to.

JOHN RUSTIN: With that, unfortunately David, we are just about out of time. But I want to give you an opportunity to let our listeners know where they can go to learn more about Alliance Defending Freedom as well as the status of these cases in the Supreme Court and lower courts across our nation.

DAVID CORTMAN: Absolutely! Our website is You can contact us toll free at 1-800-telladf. And if anyone is aware of situations where their religious liberties are being violated, we’ll certainly look into helping them free of charge. We appreciate all that you do and all that you continue to do.

JOHN RUSTIN: And with that, David Cortman, I want to thank you so much for joining us on again on Family Policy Matters and wish you all the best. I know that we and our listeners will be watching with great interest the confirmation hearings and also the future activities of the United States Supreme Court.

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