The president has packed the courts with judges friendly to the Christian right — and they could roll back LGBTQ rights as we know them
In August, Justin Walker, a federal judge in Louisville, Kentucky, issued an unusual order in favor of Chelsey Nelson, a local wedding photographer and blogger. Nelson, a Southern Baptist, claimed in a lawsuit that her Christian faith dictates “that God ordained marriage to be a covenant between one man and one woman so that this relationship would point people to the special relationship between God and His bride, the church.” Because of this, Nelson contended, she could not provide photography services to same-sex couples, or write about her views of same-sex marriage on her website. Nelson did not report receiving requests for her photography services from any same-sex couples, nor had any government agency investigated Nelson’s business or sought to prevent her from writing about her religious views or any other subject. The Louisville Metro Human Relations Commission, which is charged with enforcing the municipality’s nondiscrimination ordinance prohibiting discrimination on the basis of, among other factors, sexual orientation and gender identity, had never heard of her.
Nelson had a powerful defender in addition to her lawyers at Alliance Defending Freedom, the formidable legal firm that has pioneered the argument that religious freedom collides with LGBTQ rights. The United States Department of Justice filed a “statement of interest” in the case, arguing: “Forcing Ms. Nelson to create expression for and to participate in a ceremony that violates her sincerely held religious beliefs invades her First Amendment rights.
Judge Walker, who had been nominated to the federal bench by President Donald Trump in 2019, waved away the Commission’s argument that Nelson had no viable legal claim. He allowed Nelson’s suit to go forward and entered an order preemptively barring the government from taking an action it had never even contemplated while the case proceeds. Just like gay and lesbian Americans cannot be treated as second-class citizens under the Constitution, Walker wrote, neither can Christians who oppose the Constitutional right to marry. “America is wide enough for those who applaud same-sex marriage and those who refuse to,” he wrote.
The opinion was a victory for Christian-right legal activists who have spent the better part of the past decade building lawsuits to give conservative Christians who oppose LGBTQ rights wide latitude to opt out of complying with state and local laws that prohibit discrimination based on sexual orientation or gender identity. And now, with a growing number of sympathetic judges on the bench, Christian-right activists more firmly established the legal precedent for those claims, carving out exemptions for conservative religious objectors refusing to issue LGBTQ marriage licenses or photograph weddings, or to place foster or adoptive children with same-sex couples. On the Supreme Court’s docket this term is a case, Fulton v. City of Philadelphia, in which the court will decide whether the city of Philadelphia violated the constitutional rights of a Catholic foster care placement agency when it declined to work with the agency because of its refusal to place foster children with same-sex couples. The case “is of great concern to advocates for children in foster care, the LGBTQ community, members of minority faiths, and states and cities that contract out important government services like foster care to the private sector,” says Leslie Cooper, deputy director of the American Civil Liberties Union’s LGBT & HIV Project. “There is simply no support in the law for the argument that the constitutional right to religious liberty entitles an organization to screen out people based on religious criteria when providing a government service.”
The partisans who claim civil rights for others violate their religious freedom are poised to see a possible 6-3 majority for their position on the nation’s highest court. President Donald Trump’s selection of Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg on the Supreme Court is an unambiguous motivator for his Christian-right base that demands justices not just committed to overruling Roe v. Wade but also justices who will be champions of this “religious freedom” agenda. Barrett has long signaled her ideology on such issues. In 2012, she signed an open letter that argued that the Obama administration’s accommodation — which allowed religious employers with objections to birth control to sign a form to shift the Affordable Care Act’s contraception coverage requirement to their insurers — was “unacceptable” and “a grave violation of religious freedom.”
Barrett’s 2017 confirmation hearing to the Seventh Circuit Court of Appeals made her a heroine to the Christian right; after Democratic Sen. Dianne Feinstein mused that the “dogma lives loudly within you,” Republicans attacked Democrats as “anti-Catholic.” Barrett’s membership in a charismatic Catholic sect, the People of Praise, has also drawn scrutiny — including from fellow Catholics — in part because it requires members to enter into a “covenant,” which its founder, Paul DeCelles, has described as “a full commitment, a commitment that involves our whole lives. We are not simply committing ourselves to certain activities or obligations, but we are committing ourselves to a relationship which reaches to everything in our lives.” People of Praise, DeCelles has said, “has a particular call and a mission from the Lord.”
While senators questioning nominees for public office about their religious beliefs is constitutionally and politically fraught, Barrett’s legal career is a window into her relationships with the Christian-right lawyers advancing the “religious freedom” agenda in the courts. On her financial disclosures during her Seventh Circuit confirmation process, Barrett noted that she had received honoraria from Alliance Defending Freedom for speaking at its Blackstone Legal Fellowship program for law students. Questioned by Sen. Al Franken about some of ADF’s anti-LGBTQ positions, Barrett said she was unaware until she received her honoraria check that ADF sponsored Blackstone, and that “I don’t know what all of ADF’s policy positions are.”
But a paper trail shows Barrett would have not only known about ADF’s policy positions, but would have had to agree with them to speak at the seminar. Documents obtained by Type Investigations since that time show that Barrett, while a professor at Notre Dame Law School, spoke twice at Blackstone seminars, in 2013 and 2015, delivering a speech titled, “Construction and/or Interpretation: Navigating the Scylla & Charybdis.” ADF sent faculty emails regarding rules and logistics for the gathering, and thanking them for “your commitment to the Lord’s Kingdom work through Blackstone.” The materials included a confidential “lexicon” containing a list of phrases participants should and should not use when speaking. Participants were told to use the phrase “defending biblical, religious principles, convictions,” but not “bigotry, anti-tolerance;” and to use “demands of/by the homosexual legal agenda, demands of/by advocates of homosexual behavior, special privileges,” but not “homosexual/gay rights, hate-crimes legislation, anti-discrimination laws,” noting that Alan Sears, one of the co-founders of ADF, has written that “the goals and agenda of advocates of homosexual behavior are not ‘rights,’ but ‘demands.’” Similarly, ADF’s lexicon called for using “homosexual behavior,” not “homosexuality or gay,” because “homosexuality is a personal struggle” and “the word ‘gay’ was conceived by advocates of homosexual behavior to destigmatize their behavior and advance their agenda.” Because ADF frequently litigates Supreme Court cases, taking positions against abortion, LGBTQ rights, and church-state separation, it is likely that if Barrett, who is only 48, is confirmed, she will be hearing arguments from ADF attorneys for many years to come.
Sealing a decades-long mission of the Federalist Society and allied advocacy organizations, Trump, aided by Republican Senate Majority Leader Mitch McConnell, is remaking the federal judiciary far beyond the Supreme Court. During Trump’s tenure, more than 200 judges have been confirmed to lifetime appointments in trial and appellate courts, including the Supreme Court. Trump has nominated more judges, and most consequentially, more appellate judges, than any other president since the process became hyper-politicized after the failed Supreme Court nomination of Robert Bork in 1987. Many of Trump’s judges are young, too, often in their thirties or forties, meaning that the lifetime appointment affords them potentially many decades more on the bench than their predecessors.
More than a quarter of active federal judges now have been appointed by Trump, and several have shown they hold extreme views on religious freedom. Last year, the Eighth Circuit Court of Appeals ruled in favor of two wedding videographers who said they would refuse to shoot at an LGBTQ wedding. In an opinion authored by David Stras, a Trump nominee, the court held that the state law barring discrimination against LGBTQ people infringed on the videographers’ rights.
Never before has the Christian right’s goals for the federal courts — eviscerating the separation of church and state, undermining LGBTQ rights, reversing Roe v. Wade, and expanding religious liberty rights for anti-abortion and anti-LGBTQ Christians — been so tantalizingly within reach, raising the stakes ever higher for November’s election and putting judicial nominations front and center in the campaign to turn out the Christian right base for Trump’s reelection. Kelly Shackelford, president and chief counsel for First Liberty Institute, one of several Christian-right legal firms that have forged these religious-liberty arguments in the courts, recounted to a February 2020 gathering of the agenda-setting conservative Council for National Policy the millions of dollars the right has spent to ensure that Trump had the right list of potential judicial nominees from which to choose. “I am watching history change on its axis,” he said. “Every American alive, in my opinion, is about to have more religious freedom than they’ve ever had in their lifetime. And it’s because of what’s happening with the judges.”
The notable trend among Trump appointees is that they are “not bringing what I would consider to be a healthy balance between rights,” says Katherine Franke, director of the Law, Rights, and Religion Project at Columbia University. “They have brought, from the beginning, a kind of biased concern for the fabricated or possible violation of rights of evangelical Christians.” In this area of the law, she says, “we now have tiered levels of rights,” where “speech and religion appear to be the first-class rights, whereas 14th Amendment and equality rights are given second-class status and are subject to override if they butt heads with religious liberty rights.”
Supreme Court Justice Neil Gorsuch — Trump’s first judicial nominee as president — is a key proponent of more expansive religious liberty rights. This spring, he authored the majority opinion in Bostock v. Clayton County, a landmark case in which the court ruled, 6-3, that Title VII of the 1964 Civil Rights Act, which prohibits sex discrimination in employment, includes a prohibition on discrimination based on sexual orientation and gender identity. But Gorsuch’s opinion included a wide-open door to religious employers who might object to complying with this new interpretation of the law. John Bursch, an attorney with Alliance Defending Freedom, which represented an employer in the group of employment discrimination cases consolidated in Bostock, says “the opinion does intentionally signal to the American people that religious rights are still going to be an important consideration in these things, just as the Obergefell opinion did when Justice Kennedy wrote the majority opinion creating a constitutional right to same-sex marriage and noted the importance of protecting religious beliefs.” Gorsuch’s words, Bursch says, were “certainly an invitation for folks to bring those claims.”
The “common thread” running through cases in which Gorsuch has authored the majority or a concurring opinion, is “signaling and maybe pushing the court to take a much more deferential approach” to the claims of religious objectors that government action burdens their religious exercise, says Jenna Reinbold, a professor of religion at Colgate University and an expert on law and social policy. Reading all his opinions together, Reinbold says, “Gorsuch will be comfortable carving out exemptions from nondiscrimination laws, especially things involving LGBTQ rights.”
Christian-right lawyers in the trenches have spun the trend as a conservative embrace of diversity, painting conservative Christians’ opposition to LGBTQ rights as part of the fabric of a pluralistic democracy. “I think what you’re seeing is a broad embrace of religious liberty as a key tool to advancing pluralism, and not having the zero-sum game approach to these things,” says Mark Rienzi, president of the Becket Fund for Religious Liberty, which is representing Catholic Social Services in the foster-care-placement case on the court’s docket this term. The court is instead “saying we can have a live-and-let-live world, where people are allowed to be different,” Rienzi says.
Led by McConnell, the Senate has confirmed Trump’s nominees to appellate courts who had records of anti-LGBTQ positions and who have advanced the right’s religious freedom arguments in their opinions, including signaling more extreme positions in concurrences and dissents. When Trump nominated Lawrence VanDyke to the Ninth Circuit Court of Appeals in 2019, 25 LGBTQ rights organizations opposed it, citing his record of hostility to LGBTQ rights, including statements asserting that “gay rights cannot always trump religious liberty.” The majority of the American Bar Association’s Standing Committee on the Federal Judiciary rated him “not qualified,” based on interviews with fellow lawyers assessing him to be “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice.” Some interviewees, the committee noted, “raised concerns about whether Mr. VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.” (VanDyke cried when questioned about it in his confirmation hearing, telling senators: “It is a fundamental belief of mine that all people are created in the image of God, and they should all be treated with dignity and respect.”) The Senate confirmed him, 51-44.
In 2017, on a party-line vote, the Senate confirmed John K. Bush, a co-founder of the Louisville, Kentucky, chapter of the Federalist Society, over the vociferous opposition of civil rights groups. Bush, who has political links to McConnell, was installed to a seat on the United States Court of Appeals for the Sixth Circuit; the same court had had another vacancy since 2013, owing to the obstruction of McConnell and Kentucky Sen. Rand Paul during Obama’s presidency. Bush’s past record included a speech, given to a private club in Louisville, in which he used the slur “faggot.” In a 2006 paper he co-authored for the Federalist Society, Bush excoriated the Kentucky state supreme court for, among other things, refusing to criminalize “consensual homosexual sodomy,” even though, by the time he wrote the paper, the United States Supreme Court’s decision in Lawrence v. Texas, striking down such criminal laws as unconstitutional, had been on the books for three years.
As an appellate judge, Bush has questioned the reach of Obergefell v. Hodges, the court’s landmark 2015 case striking down bans on same-sex marriage, signaling that he would be open to limiting it. In a concurring opinion in a 2019 case holding that Kim Davis, the county clerk who refused to issue marriage licenses to same-sex couples in Kentucky, was not entitled to qualified immunity from the suit, Bush agreed with the result, but nonetheless warned in a concurrence that he believed “Obergefell answered some questions, but it also left many unanswered.”
The Supreme Court has denied review in the Davis case, but two of the Court’s most conservative justices, Clarence Thomas and Samuel Alito, issued a “statement,” citing Bush’s opinion, which reinforces, said Columbia’s Franke, “the concern that the rights secured in Obergefell v. Hodges are viewed by at least two members of the Court as inferior to religious-liberty rights secured under the First Amendment to the Constitution.” That, she added, is a “radical reading,” of Obergefell and “an unprecedented assault on the integrity and authority of the Supreme Court’s power to interpret the constitution.”
Even with a 6-3 majority, Columbia’s Franke does not believe there is a risk the Supreme Court would directly overrule Obergefell: “It is more likely that a new conservative majority of the court will solidify marriage-equality rights, like abortion rights, as a second-class constitutional right that religious objectors are entitled to ignore if they have a faith-based reason for doing so,” she says. “In this sense, I expect the court to further entrench a kind of tiering of constitutional rights,” with religious rights elevated, “while others such as privacy, sexual liberty, and equality being no match for the weight of the court’s preferred rights.”
Other Trump appointees have used opinions to expound on their political or religious views, or to register their disagreement with Supreme Court precedents the Christian right has been aiming to dismantle for years. In a 2018 case challenging a Texas law requiring fetal remains to be buried, the Fifth Circuit Court of Appeals granted the Texas Conference of Catholic Bishops’ appeal of a discovery order requiring it to produce documents related to the legislation. The TCCB had argued that the law would not require women or their health care providers to expend money, since the Bishops agreed to foot the bill if money were an issue. In a concurrence, James Ho, a Trump nominee, amplified the majority opinion with his view that the Bishops actually had a constitutional right to offer to pay for the burials. “The First Amendment expressly guarantees the free exercise of religion — including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains.” In another 2018 concurring opinion, Kevin Newsom, nominated by Trump to the Eleventh Circuit, called the Supreme Court’s jurisprudence on the Establishment Clause — the provision guaranteeing a separation of church and state — a “hot mess,” all but calling for its reversal.
These concurring opinions, Franke says, demonstrate “a real absence of judicial temperament.” Language like Newsom’s — using pejorative phrases like “hot mess” and “wreck” to describe Supreme Court precedent — she says, is “injudicious, apart from where the language takes you. That absence of temperament appropriate for a federal court is itself problematic, because it doesn’t generate trust of the people in the rule of law, which is a larger problem we have with this administration generally.”
Of the nearly 200 judges the Republican Senate has confirmed to the federal bench under Trump, McConnell has bestowed his most ardent attention on Walker, his fellow Kentuckian and protégé. Walker, a Federalist Society loyalist and longtime friend of McConnell’s, has proven himself to be a stalwart of the Christian right’s “religious freedom” agenda. At the time Trump nominated him to the trial court in 2019, he had been teaching at the University of Louisville Brandeis School of Law for four years, teaching legal research and writing. Well-liked by his colleagues and students, he was known as conservative, but was an affable and uncontroversial presence at the law school. He kept a low enough profile, said one former colleague, that many of his fellow professors did not realize the extent of his political connections, even as they found it curious that someone with his pedigree — a law degree from Harvard, and two high-status clerkships — would end up at Louisville, a less prestigious school that is “under market in terms of salary.”
When Trump nominated Brett Kavanaugh to the high court, the former colleague said, he texted Walker to congratulate him. The extent of Walker’s political contacts came into view when Walker texted back a photo — from the White House, at the official presidential announcement of Kavanaugh’s nomination. While the colleague knew that Walker had clerked for Kavanaugh and later Supreme Court Justice Anthony Kennedy, he was unaware of the extent of Walker’s political connections. It was then, the former colleague said, that “I knew we were on a whole different level.”
When the right-wing news site The Federalist published an anonymous column accusing Kavanaugh of having a “troubling record on religious liberty,” churning doubt in Trump’s religious right base, Walker leapt to his defense. He wrote a widely circulated op-ed that declared Kavanaugh a “warrior for religious liberty,” and making 162 media appearances on his behalf. Nine months after Kavanaugh’s contentious confirmation hearings, Trump tapped Walker, who was only 37, to fill a trial court seat in the Western District of Kentucky.
Led by Sam Marcosson, a professor at the University of Louisville Law School, 16 of Walker’s colleagues supported his nomination, although the American Bar Association gave the young law professor a “not qualified” rating, owing to “the absence of any significant trial experience” on his résumé. Marcosson said he believed that Walker would grow into the job. “So I didn’t find his lack of those experiences disqualifying,” he said. Walker had already proven himself to the Republican Party, if not to the nation’s largest legal professional association. Texas Sen. Ted Cruz had recently accused the American Bar Association — which claims more than 350,000 member lawyers, and is widely seen as nonpartisan — of being “an openly liberal advocacy group.” The Senate confirmed Walker 50-41.
McConnell flew from Washington to Louisville with Kavanaugh for Walker’s formal swearing-in to the Kentucky federal trial court. The ceremony took place on March 13th, the same day President Trump declared a national emergency for Covid-19; later that night, the House would pass a massive relief package, the Families First Coronavirus Response Act, with the support of the White House. But McConnell, rather than shepherding the bill through the Senate that weekend, had other plans. In Louisville that morning, on a stage in front of an oversize American flag, as Walker and Kavanaugh, clad in their black judges’ robes, looked on, McConnell did not mention the escalating public-health crisis that was already forcing the closure of businesses, universities, and soon, K-12 schools, leaving families scared, uncertain and strapped for cash. Instead, he gave a distinctly partisan speech, recalling how, at age 18, Walker wrote a paper on the 1994 Republican Revolution, the midterm election when the GOP regained control of both the House and Senate during President Clinton’s first term. McConnell recounted how Walker, as a high school student, called it “the most exciting thing that had ever happened in my life.” Pausing to allow the knowing laughter from both Walker and the audience to subside, McConnell added, “Clearly, he had excellent political taste from quite a young age.” McConnell followed these remarks with a lament about the “threat that partisanship poses to our independent judiciary.” By contrast, McConnell portrayed Walker as nonpartisan, hailing his “extraordinary intelligence, coupled with a compassionate heart.”
Three weeks later, after Walker had been serving just five months on the trial court in Kentucky, Trump nominated him to the powerful Court of Appeals for the District of Columbia Circuit. When the Senate confirmed him in June, McConnell tweeted his approval, along with a photograph of himself and Walker sitting in the Oval Office speaking with the president.
Amid the coronavirus crisis, Walker, still awaiting his confirmation hearing to the appellate court, found another way to further the religious freedom cause. On Easter weekend, Walker preemptively barred the City of Louisville from preventing On Fire, a Christian Church, from holding drive-in Easter Sunday services due to Covid-19, even though the state’s March 19th order banning all mass gatherings, did not bar drive-in services. In the week before Easter, Louisville’s Mayor, Greg Fischer, reached out to the community “reluctantly, but emphatically, asking our faith leaders not to hold in-person or drive-thru services this weekend.” It was a plea on the grounds of public health, but not a demand or a threat of government enforcement.
But Walker ignored the absence of an actual enforcement threat, just like he did in the Chelsey Nelson case. Walker entered a temporary restraining order ex parte — meaning that the judge heard only from the church’s lawyers, but not from the government’s — accusing government officials of having “criminalized the communal celebration of Easter.” Afterward, Fischer lamented to local media that the city “twice attempted to contact the court” about the case. “I regret that the judge did not allow us to present evidence that would have demonstrated there has been no legal enforcement mechanism communicated,” Fischer said. Conservative law professor Josh Blackman criticized Walker for “numerous, unforced errors,” notably failing to allow the city to have its say. Instead, Walker delivered a 20-page, 86-footnote decision containing a “thorough exegesis of religious freedom from biblical times, to Plymouth Colony, to slavery, to Latter Day Saints, to Blaine Amendments, to Harvard’s quotas for Jewish students, to the KKK,” Blackman wrote. That case, Marcosson said, also gave his former Louisville colleagues pause over his nomination to the D.C. Circuit; this time, only three colleagues supported the nomination. A little over a week after Walker’s blistering temporary restraining order, the city agreed to a settlement of the case, promising it would not penalize it for drive-in services with social distancing. Mayor Greg Fischer tweeted, “My goal all along has been to protect the citizens of Louisville Metro from this dreadful COVID-19 virus, and I believe this Agreed Order accomplishes that goal.”
But even as Walker startled legal experts, he won plaudits from another, more important constituency. In response to the ruling, McConnell tweeted: “Grateful for this strong, eloquent ruling defending Kentuckians’ religious liberty from Judge Justin Walker.” McConnell appeared on Washington Watch, the radio program hosted by Tony Perkins, the influential leader of the Christian-right Family Research Council, calling Walker “brilliant” and accusing Democrats of having “gone hard left on so many different issues, and religious liberty is of course an example of it.”
Walker’s decisions have made his name a staple across Christian-right radio, websites, and podcasts. Albert Mohler, an influential Southern Baptist theologian and the president of the denomination’s flagship seminary in Louisville, emphasized Walker’s record, and the critical importance of the election in an August episode of his daily podcast, The Briefing. Mohler reminded his audience: “It’s not only the president of the United States who makes those decisions. It is in the United States Senate, which has the power of confirmation, advice and consent, and thus, elections have consequences.”
Republicans have long recognized that the structure of both the Senate and the Electoral College has given them outsize power to stack the courts with right-wing judges. Never before has this anti-democratic structure mattered more for their quest to tilt the courts far to the right of the views of the majority of Americans. The American public is more supportive of LGBTQ rights than ever before, is growing less Christian, and majorities reject allowing people or businesses to refuse service to LGBTQ people on religious grounds. Yet Trump judges are poised to give conservative Christians greater latitude to flout laws protecting those rights, opening the door for potentially undermining laws protecting other marginalized groups from discrimination, including members of minority faiths. If Trump and his Senate collaborators have another four years to install young conservative ideologues on the courts, the protection of civil rights could be upended into an inconsistent patchwork, as the federal courts favor sectarian objectors who complain their religious rights are offended by the rights of their fellow citizens to equality under the law.
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