Supreme Court nominee Neil Gorsuch on Tuesday declined to comment on whether he would uphold President Donald Trump’s controversial travel ban. He said that the “government must meet strict scrutiny” before implementing any regulation based on religious belief.
“Does the First Amendment allow the use of a religious litmus test for entry into the United States?” Sen. Patrick Leahy (D-VT) asked Gorsuch during his Senate confirmation hearing.
“That’s an issue that’s currently being litigated actively,” Gorsuch replied.
When pressed to answer the question generally, as opposed to in connection with the case in the 9th Circuit Court of Appeals, he cited the clause of the First Amendment that protects the free exercise of religion.
“If you’re asking me how I’d apply it to a specific case, I can’t talk about that for understandable reasons,” Gorsuch said.
“Judge, do you agree with me that there should not be a religious test in the United States?” Leahy asked.
“I need to know more specifics,” Gorsuch said.
He said a religious test for military service would be “inappropriate” but declined to comment on whether it would be similarly inappropriate to ban people from the United States based on religion.
“We also have the Religious Freedom Restoration Act,” Gorsuch said. “It says that if there’s any sincerely held religious belief, earnestly held religious belief, the government must meet strict scrutiny before it may regulate on that basis, strict scrutiny being the highest standard known in American law.”
“President Trump promised a Muslim ban,” Leahy said. “And a Republican congressman recently said the best thing the President can do for his Muslim ban is to make sure he has Gorsuch on the Supreme Court before the appeals get to that point.”
“Senator, a lot of people say a lot of silly things,” Gorsuch said.
“This congressman wants you on the court so that they can uphold a Muslim ban,” Leahy pressed.
“He has no idea how I’d rule in that case,” Gorsuch said. “I’m not going to say anything here that would give anybody any idea how I would rule in any case like that.”