Republicans have essentially ceded the legislative agenda for the remainder of this term and will not push a single important issue other than nominating judges. Even on the judicial front, they will not fight back against judicial power-grabs and the practice of judicial supremacy. Rather they will focus on “getting our guys” on the super-legislative bench of the judiciary. As such, one would expect that at least all the nominees of this administration would be ironclad originalists who interpret the Constitution as it was adopted in 1789. Right?
Well, nothing says “interpret the Constitution as it was adopted in 1789” like state-sanctioned discrimination against those who believe a marriage is, well, a marriage. Michael Bogren, a First Amendment lawyer from Michigan, has been nominated to serve as a federal judge for the Western District of Michigan. He believes in the latest trend of governments discriminating against Catholic adoption agencies or businesses because, in his estimation, “discriminators need not apply.”
Government contracts should be open to all citizens, and many citizens are allowed to bring discrimination lawsuits based on nonsensical and frivolous claims. But somehow when cities like East Lansing openly say they will not do business with a farmer who doesn’t host gay weddings on his property, that is perfectly fine.
Steve Tennes was kicked out of the Lansing farmers’ market for his religious beliefs and is now suing in the very federal court where Bogren seeks a judgeship. Bogren represented East Lansing and wrote a brief comparing government’s termination of contracts with Tennes to the government barring work with the KKK, a group that discriminates based on immutable traits. “The message isn’t Catholics need not apply,” Bogren said. “The message is discriminators need not apply … This is not about religion. This not about speech.”
Senator Josh Hawley confronted Bogren with those comments this week at his confirmation hearing before the Senate Judiciary Committee. Bogren reiterated that “the point I was trying to make was that religious beliefs trying to justify discrimination – if extended to sexual orientation, which the city of East Lansing protects – could be used to try to justify any other sort of discrimination, whether it be gender or race.”
Folks, that is the whole enchilada of what we are fighting in the courts today. Governments are codifying the homosexual – and now, the transgender – agenda into civil rights, thereby trampling the foundational freedom of religion in this country. Once we accede to the point that sexual behavior is just like race, that would mean that even private businesses who are not seeking government work but just merely want to be left alone would also be forced to directly serve homosexual weddings.
Bogren said very clearly, “I stand by those comparisons” of religious beliefs against gay marriage to discriminating based on race and gender.
You can watch the back-and-forth between Hawley and Bogren here:
Senator Josh Hawley grilling judicial nominee over his anti-Catholic rhetoric:
"No, you specifically compared this Catholic family's adherence to their religious beliefs with the views of the KKK."
Senator Hawley then reminds everyone of the Masterpiece Cake Shop SCOTUS Case pic.twitter.com/4YsoDKy8x0
— The Columbia Bugle 🇺🇸 (@ColumbiaBugle) May 22, 2019
Hawley concluded, “I am shocked by the statements that I read in your briefs; I’m shocked by this kind of language. I’m particularly shocked by it in light of the Supreme Court’s clear teaching that this kind of animus and these kind of hateful comparisons are out of step with the protections of our law.” Referring to the landmark Surpeme Court ruling last year, Hawley said, “The Masterpiece Cakeshop case turned on these issues, it turned on this kind of animus. The fact that you stand by these comments is extraordinary to me.”
It’s also quite extraordinary that so few Republicans bother to even check whether these nominees, whether Supreme Court picks or lower court picks, even comport with our basic legal principles on issues like religious liberty, life, marriage, and sovereignty. Hawley previously expressed concern about another lower court pick because she had some socially liberal beliefs. Hawley was roundly criticized by Republican groups for holding up a Trump nominee.
Whether it’s Mitt Romney, Susan Collins, or Tim Scott, there are plenty of Republicans who are willing to challenge Trump’s nominees from the Left, but nobody aside from Hawley seems to be aggressively vetting Trump’s nominees to see if all of them are true originalists.
If the entire purpose of the GOP controlling the Senate is to confirm judicial nominees, shouldn’t we at least see if they are worth fighting for?
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.