J. Reuben Clark Law Society

Law Society Member Hannah Smith Testifies on
Religious Liberty at U.S. Supreme Court Nomination Hearing

On March 23, 2017, Law Society member Hannah Smith testified before the United States’ Senate Judiciary Committee during the confirmation hearings for United States Supreme Court nominee Neil M. Gorsuch. Smith was invited to testify as an an expert witness on the subject of religious liberty.

Smith, Senior Counsel at The Becket Fund for Religious Liberty, is also a two-time Supreme Court clerk having previously clerked for Justices Clarence Thomas and Samuel Alito. Through her work at Becket, a non-profit, public-interest law firm dedicated to protecting religious liberty for people of all faiths, Smith has been involved in litigating several high profile U.S. Supreme Court religious liberty cases including EEOC v. Hosanna -Tabor, Holt v. Hobbs, and Burwell v. Hobby Lobby.

To prepare for the hearings, Smith reviewed all forty religious liberty related cases in which Gorsuch wrote an opinion or cast a vote during his ten years as a judge on the U.S. Tenth Circuit of Appeals.

Her testimony focused on an analysis of several of Gorsuch's religious liberty decisions under the Religious Land Use and Institutionalize Persons Act (RLUIPA), Religious Freedom Restoration Act (RFRA), and the Establishment Clause of the United States Constitution. Smith provided analysis of Gorsuch's decisions under RLUIPA's prisoner provisions which protected the religious liberty of incarcerated Native Americans, Muslims and Jews. Smith also discussed Gorsuch's opinions in the well-known cases of Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) and Little Sisters of the Poor v. Burwell, 799 F. 3d 1315 (10th Cir. 2015), which both involved the Affordable Care Act's regulatory contraception mandate and were both decided under RFRA.

Smith also analyzed Gorsuch's opinions in Establishment Clause cases involving public displays of the Ten Commandments and roadside memorial crosses. In discussing these cases, Smith pointed out that the Supreme Court has made it clear that the government may recognize religious elements as important contributions to a community's values, culture and history, and that "government recognition of religious culture is not only historically justified, it is far preferable to the hyper-secular alternative of attempting to whitewash religious expression from our communities and our history." Smith testified that "religious liberty is fundamental to freedom and to human dignity, and that protecting the religious rights of others--even the rights of those with whom we may disagree--ultimately leads to greater protections for all of our rights."  

Smith believes that this was the first time the Senate Judiciary Committee has dedicated a witness on an expert panel entirely to the subject of religious liberty during a Supreme Court nomination hearing, resulting in significant air time for religious liberty discussions during a national event.  

The text of Smith's written testimony can be found here.

A video of Smith's testimony which includes her answers to questions by Senator Orrin Hatch and Chairman Chuck Grassley can be found here.

By Wendy F. Jerdon, Media Committee

Posted: May 31, 2017