The Volokh Conspiracy

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Senator Josh Hawley Is Becoming a First-class Demagogue


President Trump nominated attorney Michael Bogren for a position as a federal district court judge. As an attorney in private practice, Bogren represented the City of East Lansing in litigation against Country Mill Farms. The city excluded Country Mill from its farmers' market because its owner publicly announced that he would not host a same-sex wedding on his farm, and the city therefore deemed Country Mill to be out of compliance with its public accommodations antidiscrimination statute, which prohibits discrimination based on sexual orientation. Country Mill sued, arguing that East Lansing was violating the religious freedom of the company and its owner.

As VC readers know, I have no sympathy for the ever-expanding scope of public accommodations law, and I generally believe that in disputes like this the government should err on the side of religious freedom. Indeed, I wrote a whole book arguing that civil liberties should be protected against the ever-growing antidiscrimination legal edifice.

Nevertheless, precedent generally favored the city (and indeed it won a motion to dismiss), and Bogren's brief in support of East Lansing's motion to dismiss makes an unremarkable argument: if the government is required to refuse to enforce antidiscrimination laws based on what many see as mainstream, sincere and relatively benign religious beliefs, the government will also have to accommodate discriminatory actions based on sincere religious belief that almost everyone recognizes as noxious, such as the beliefs of the Nation of Islam and the KKK.

Two things should be obvious here. First, that Bogren was acting as an attorney making the best legal argument he can on behalf of his client, which doesn't necessarily represent his personal beliefs. Bogren may very well think that East Lansing should lay off Country Mill Farms and similarly-situated business, and it's unreasonable to think that an attorney always agrees with the position he asserts on behalf of his client. It's not proper to publicly ask an attorney to state that he personally disagrees with an argument made in court on behalf of a client, especially, as in this case, when the litigation is ongoing. Second, the argument Bogren made is the standard legal argument anyone would make in his position, and does not reflect any demonstrated hostility to Country Mill Farms' owners' religious beliefs.

I assume that as an attorney and former law professor, all this was obvious to Senator Hawley as well. Nevertheless, at Bogren's confirmation hearing, Hawley chose to demagogue the issue, accusing Bogren of comparing traditional Catholic beliefs to those of the KKK, and more generally of exhibiting hostility toward Catholicism. There's no excuse for (a) misrepresenting Bogren's arguments; and (b) treating arguments made on behalf of a client in a brief as if they represent the attorney's personal opinion.

You can watch a video of Hawley's appalling performance here, and I've reprinted Bogren's argument on behalf of East Lansing below as well. This is not the first time Hawley has demagogued a judicial nomination, and the trend doesn't bode well.

The argument from Bogren's brief:

There can be no constitutionally sound argument that sincerely held religious
beliefs would permit a secular business to avoid the prohibitions against racial
discrimination or gender discrimination found in Federal, State and local laws. The Bob Jones Univ. decision put such an argument to rest. Similarly, other courts have held the gender anti-discrimination provision of Title VII could be constitutionally enforced against religious entities. E.E.O.C. v. Fremont Christian School, 781 F.2d 1362, 1369 (9th Cir. 1986)("Because the impact on religious belief or practice is minimal and the interest in equal employment opportunities is high, the balance weighs heavily in favor of upholding Fremont Christian's liability under Title VII for its sexually discriminatory health insurance compensation program."); E.E.O.C. v. Tree of Life Christian Sch., 751 F. Supp. 700, 711 (S.D. Ohio 1990)("However, although the application of the Equal Pay Act would burden Tree of Life's freedom to select the manner in which it will bear witness to the belief that the husband is the head of the household, in the Court's view the burden imposed upon defendant's central religious beliefs would be limited. . . . Congress' purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.").

One of the tenets of the religious group Nation of Islam is: "We believe that
intermarriage or race mixing should be prohibited." There can be doubt that if a member of that faith ran a business similar to the plaintiffs' business, but instead of refusing to accommodate same sex couples (or in addition to), refused to accommodate interracial couples, such a refusal would be subject to the antidiscrimination laws of the Federal, State and local governments. The other side of that discriminatory coin is found on the website of the White Camelia Knights of the KKK, which is "a Texas based KKK organization composed of White Christian Men and Women dedicated to the advancement and protection of the same Christian beliefs that were the foundation of this once great nation." That group states: "The Klan has always taken a strong stance against interracial marriage. What most people don't understand is
it's against our Heavenly Father's law." Again, an adherent of that particular brand of Christianity who ran a business similar to the plaintiffs' business would not be able to invoke the free exercise clause to avoid the antidiscrimination  provisions of Federal, State and local laws that apply to public accommodations if interracial couples were refused service.

Certain imams of the Islamic faith have opined that women may not drive
automobiles. Shaykh Ibn 'Uthaymeen was asked to explain that ruling. His lengthy
response concluded: "Based on these two principles, the ruling on women driving should be clear, because women driving includes a number of evils . . ." If a practitioner of the Islamic faith who was a follower of that rule operated a business that taught driver's education, he could not refuse to accept a female customer on the basis that doing so would interfere with his right to freely exercise his religion.

None of these propositions are in any way remarkable from a constitutional
standpoint. Thus, the plaintiffs' only response to why the City of East Lansing's
antidiscrimination policy would not fall within this unremarkable constitutional
proposition must be that the subject of the nondiscrimination policy (sexual orientation) is not worthy of the same level of protection as race or gender. Plaintiffs might well believe that – and such a belief might be based on their religion – but those beliefs are certainly no more sincere than the beliefs held by the religious adherents in the prior examples. The plaintiffs' beliefs themselves, or their degree of sincerety, cannot be the deciding factor. Since the Supreme Court has explicitly stated the States (which includes local governments) have the power to enact legislation banning sexual orientation discrimination, Hurley, supra, it is difficult to conceive of a viable rationale that would support plaintiffs' position. In point of fact, there is no rationale that supports plaintiff's position. To the contrary, the courts have utterly rejected any suggestion that sexual orientation is not entitled to the same level of protection as other protected classes:
The Council determined that a person's sexual orientation, like a person's
race and sex, for example, tells nothing of value about his or her attitudes,
characteristics, abilities or limitations. It is a false measure of individual
worth, one unfair and oppressive to the person concerned, one harmful to
others because discrimination inflicts a grave and recurring injury upon
society as a whole. To put an end to this evil, the Council outlawed sexual
orientation discrimination . . . Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ. supra, 536 A.2d at 32.