Did Judge Reyes Impose An Unconstitutional Religious Test?

Can a federal judge ask a DOJ lawyer "What do you think Jesus would say"?

Judge Ana Reyes (DDC) may be having some issues right now. On Valentine's Day, in a case concerning fired inspectors general, she threatened to sanction former Solicitor General Seth Waxman.

"Mr. Waxman, I am really debating right now whether to order a show cause on sanctions," Judge Reyes said right before the call ended. "I'm not going to do it, because I've got other things to deal with, but this was totally unacceptable." . . .

"You are an experienced, experienced individual," she said of Mr. Waxman, adding that "there is no universe in which I would ever be qualified enough to be hired by the solicitor general's office, much less be the solicitor general." . .  .

"Why on Earth did you not have this figured out with the defendants, before coming here and burdening me and burdening my staff on this issue? Are we really here right now on the sixth hearing of this day for me to decide whether to grant a TRO, given the circumstances that you guys could not even bother filing a TRO for 21 days?"

Four days later, Judge Reyes held another hearing about President Trump's executive order in gender dysphoria in the military.

This is an actual question Judge Reyes asked a DOJ lawyer:

What do you think Jesus would say to telling a group of people that they are so worthless, so worthless that we're not going to allow them into homeless shelters? Do you think Jesus would be, 'Sounds right to me'? Or do you think Jesus would say, WTF? Of course let them in.

WTF, for those who may not know, stands for "What the fuck?" How far we have come from Cohen v. California. A person wearing a jacket that said Fuck the Draft, to protest bombs being dropped in Vietnam, was arrested. Now, a judge is dropping f-bombs from the bench.

DOJ has submitted a complaint to Chief Judge Srinivasan concerning Judge Reyes's conduct.

I hope Judge Reyes is doing well. This sort of conduct is extremely troubling. Maybe she should be given the Pauline Newman treatment, and not receive any further cases until she undergoes mental screening? Call it an "administrative stay" of her Article III commission. Apparently, you can administratively stay anything!

Apart from the ethical issues, I wonder whether Judge Reyes may have inadvertently tripped across a seldom-mentioned provision of the Constitution. The Religious Test Clause provides:

but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Torcaso v. Watkins (1961), more-or-less held that that Religious Test Clause is coextensive with the Free Exercise Clause. Yet, the Religious Test Clause remains part of the Constitution. (I'll table for now whether the DOJ lawyer would fall within the ambit of the phrase "Office or public Trust under the United States"; I am not certain what kind of position he holds.)

Traditionally, we think of a religious test as a government official having to pledge a belief in a particular faith, or to a deity more generally. For example, Seth Barrett Tillman has written about the Religious Test Clause in the North Carolina Constitution of 1776. It provided:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

What about Judge Reyes's question? Asking a government lawyer "What would Jesus do" is a purely theological question. It is, in every sense, a test about religious belief. And the question is premised on the existence of Jesus as a deity. Does the lawyer have to take a position on that question? I do not know what the lawyer's religion is, if any at all. As a Jew, I would certainly have struggled with that question. If Judge Matt Kacsmaryk asked a government lawyer "What would Jesus do?", articles of impeachment would already have been filed.

Ultimately, I do not think Judge Reyes actually cared what Jesus thought. She was making a rhetorical point that a conservative administration, which purports promotes morality, was being hypocritical by not helping certain people. This same rhetorical trap is used whenever a conservative favors restrictive immigration policies. There is no there, there.

In any event, I hope Judge Reyes is well. Her conduct here is cause for concern.

Comments

[Pooblius]

There goes ol' Josh Crackman, praying a Thune or Cruz aide reads this blog, auditoning for a judgeship. He's really been checking the "no law, only own the libs" box recently!

[Ed Grinberg]

"no law, only own the libs"

Hmmm... Isn't this (see below) a glaring example of ignoring the law and, instead, deciding a case based on one's personal notions of right and wrong (i.e., one's ideology)?

What do you think Jesus would say to telling a group of people that they are so worthless, so worthless that we're not going to allow them into homeless shelters? Do you think Jesus would be, 'Sounds right to me'? Or do you think Jesus would say, WTF? Of course let them in.

[Yankev]

I’m pretty sure that certain man that she mentioned was not recognized by the constitution as supplanting any of the 3 branches of government, much less all 3.

[Ama Valde Intellectum]

Just because she doesn't say it doesn't mean she doesn't think it.
Scalia and Thomas and Alito have made 'Jesus' comments related to law many times.
This seems to be very common on REASON: If you can stop people saying and acting on what they believe --- while defending their right to think as they want --- you preserve law.

But Justices Waite and Clark mocked such idiocy
" the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe” (Zorach v. Clauson)."

"This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?"

These lawyers on here surprise me daily with what they don't know. WE are built on Biblical and Christian basis , that is why we don't have bigame or slavery.

[Squirrelloid]

Are you implying there wasn't bigamy and slavery in the bible? You may want to check again.

[Doug Heffernan]

Set aside whether the Jesus question was rhetorical or not, and whether or not Judge Reyes actually cared what Jesus thought. I'm still interested in the answer that question. I suppose one can do what J.D. Vance does, and select certain passages of some religious text that support these policies as purely morally good.

But blackman seems wrong about there not being a there, there. There certainly is a there, there. The choices are ignoring the there, rationalizing it as good, accepting it as wrong, or somewhere in between good and wrong. But it doesn't seem to be an issue without moral valence, or just a trap like blackman says.

[Ama Valde Intellectum]

But he doesn't do that. His most famous comment was on ORDO AMORIS, which says there is no purely morally good.

Lawyers don't get this.
Is it good that I ran into a burning building and saved a cat?
Not if you chose the cat over the baby sitting next to it.

Surprsed you don't see the illogcallity of your position. Are you saying your answer has to bring in the entire BIble? Rather silly don't you think. Neither Moses nor Jesus EVER delivered their whole message at one time to one audience

[John Rohan]

The answer is that the question had a false premise. The order wasn't about keeping trans people out of homeless shelters. It was about not requiring female-only shelters to take in males that identify as female. They go to the male shelters instead.

[Bored Lawyer]

Thank you. I am not even sure that it dealt with that. The order being challenged has to do with admittance into the military, not homeless shelters. Can someone point to where any issue about homeless shelters was before this judge?

In any case, the question shows that either the judge does not understand what's at stake in the case before her, or is biased.

[Bruce Hayden]

So, Judge Reyes is asking a Jew (or at least someone ethnically Jewish raised Jewish), what Jesus would have said. Not very culturally sensitive (ignoring that Jesus at the time was Jewish, because the Judge no doubt was looking at it from our current understanding of Jesus, and not in view of his Jewish origins 2k years ago).

[Dr. Ed 2]

She has no right to demand a discussion of theology.

[hobie]

Just pretend the court is the 50 yard line of a high school football game, Blackman. You can get through this, Blackman.

[arbitrary aardvark]

Equitable factors are still part of judging. Jesus, Marcus Aurelius, Plato, Aesop, etc. are relevant to these discussions. It was a clear reference to the historical Jesus, not an invocation of a deity.

[Ama Valde Intellectum]

But that reply offends both Jewish and Christian understanding as much of the Bible is natural law, law available to reason. Thou shalt not steal, that shalt not commit murder, Thou shalt not commit adultery. This is Lincoln's Civil Relgion

[David Nieporent]

So, Judge Reyes is asking a Jew (or at least someone ethnically Jewish raised Jewish),

What is the basis for the claim that Jason Lynch is Jewish or was raised Jewish?

[Bored Lawyer]

He went to a Catholic college, so I doubt it.

It's still reflects very poorly on the judge.

[David Nieporent]

I think the reaction to the judge (particularly by the Trump lawyers) is over the top, but I do agree that her talk about WWJD was injudicious, both metaphorically and literally.

[Yankev]

I’d have to answer with all due respect, your honor, I don’t know and it would violate my religious beliefs to go find out or to use it as a moral barometer for my actions.

[santamonica811]

In a vacuum; I'd be bothered by a judge asking any party (or counsel for party), "What would Jesus do if . . . ?" That does seem improper.

Did you accidentally or intentionally fail to give the context? For instance, if counsel had referenced religious values directly before this; then I see nothing at all wrong with a judge following up, and asking the same question as above.

If a judge asked someone on the stand, out of the blue, "How often do you take your child to church/mosque/synagogue?", that would be bizarre and really problematic. But if it's a child custody hearing, and the witness is wanting X, or Y to happen, due to his religious beliefs, then it could suddenly become perfectly reasonable (or even necessary) for the judge to ask the same exact question.

Context matters. (Since I have no idea of the context in Josh's referenced case; I have no idea if this actual judge's question was, in fact, troublesome or not.)

[TwelveInchPianist]

"Did you accidentally or intentionally fail to give the context?"

No, he liked to be complaint the DOJ filed, which provided all the context that is available.

"Since I have no idea of the context in Josh's referenced case; I have no idea if this actual judge's question was, in fact, troublesome or not."

I think you do.

[santamonica811]

??? No, I really don't. I can easily imagine scenarios where asking such a question is not the slightest bit worrisome. And I can imagine ones where it would be a huge honking problem. I even gave an analogy where (I hope) you agree that the context completely changes your opinion of if it's okay if a judge asks it. Why on Earth do you think I'd lie about this? That's an uncharacteristically uncharitable conclusion from you.

[TwelveInchPianist]

"I even gave an analogy where (I hope) you agree that the context completely changes your opinion of if it's okay if a judge asks it."

I think it's questionable even in your analogy. If a party is seeking religious accommodation, courts might have to inquire into the sincerity of their beliefs, although doing so by asking how often the person brings their child to church seems problematic. But this is a government lawyer.

Perhaps you can elaborate on why you think such a line of questioning would be proper "if counsel had referenced religious values directly before this?"

In any event, the context given in the complaint is this:

After a long screed about how she believes President Trump has discriminated against individuals with gender dysphoria (including a claim that he was “literally erasing transgender people”) Judge Reyes describes receiving an email suggesting that she develop a relationship with Jesus. She then uses this aside as an excuse to randomly pivot to questioning the DOJ attorney about his religious views: “What do you think Jesus would say to telling a group of people that they are so worthless, so worthless that we’re not going to allow them into homeless shelters? Do you think Jesus would be, ‘Sounds right to me’? Or do you think Jesus would say, ‘WTF? Of course, let them in?”

[santamonica811]

If the context was that she was replying to an email sent to her by a non-party, then I agree that her rhetorical question to counsel was improper. About a 2 on a scale of 1-10. But definitely not a zero.

[TwelveInchPianist]

"About a 2 on a scale of 1-10"

10 being "drop the case now or I'll kill your family?"

I see you agree that it's a rhetorical question, and it sounds like she believes that Jesus would not want men to be kept out of women's intimate spaces in homeless centers, and she plans to use that as a basis for her ruling. 2 or 10, she has no business judging the case.

[Ama Valde Intellectum]

Wow , it immediately jumps out at me that you won't take religious data at face value but you will take scientific statements at face value. Gender dysphoria is taking entire lives away from children, ruining their identity and ability to have children forever but if Neil deGrasse Tyson says it , there's your science Moses or Jesus.
YIKES

[Yankev]

Moses would say keep men-with or without gender dysphoria-out of women’s intimate spaces.

[Krayt]

The purpose is to shame them in their behavior vs. the religion they (presumably) profess.

"That which you do to the least, you do to me."

Be ye kind.

I have a whole cannon (canon cannon) to direct at either side, but this is sufficient for now.

The Other Side: Yeah! Yeah! Let them have it!

Jesus: STFU! You don't care about them, you just want more voters to secure power more easily, so you can line your pockets more assuredly.

The Other Side: You can't prove any of my millions are ill-gotten.

Jesus: I can see into your hearts. I'm Jesus.

The Other Side: Ooooooh, I hadn't thought of that.

Jesus: Would you like a dose of Wonder Woman's magic lasso? Just answer one question: tell me all your corruptions.

The Other Side: Get away from me!

[CJColucci]

Wonder Woman has been very sparing in her use of the magic lasso precisely because so many of the men she lassoed told the truth.

[LoganMankins]

Blackman concern trolling is my favorite pastime because only morons fall for it.

Dude is just another unskilled hack.

[Judge Magney]

Apparently Josh Blackman didn't bother to review Cohen , because SCOTUS ruled that the term which raised his hackles was not forbidden, even in a courthouse.

[Thrax]

Seeing as the judge wasn't determining the lawyer's eligibility to hold an office, I don't see that the religious test clause has any relevance here.

[No One Of Consequence]

She quizzed him about Jesus. That is literally a religious test.

[JoeFromtheBronx]

The constitutional clause involves a test for office:

no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

It wasn't an interview about the person's qualification to hold office. Any "quiz" about religion is not a violation of the clause.

[TwelveInchPianist]

He can't answer the question, and thus fulfill the duties of his office, unless the believes in Jesus.

[JoeFromtheBronx]

As I noted below, that isn't true.

People talk about the beliefs of historical figures regularly without believing in their causes. It is a common question in school.

[TwelveInchPianist]

OFFs. No one knows what the historical Jesus, if any, would have thought, and it doesn't matter. The only way the question could have any relevance is if it refers to Jesus as a deity.

[MollyGodiva]

For a breakdown of the filing see:
https://www.lawdork.com/p/on-dojs-petty-and-smallbut-also-alarmingcomplain

"At one point, Reyes referenced an email she received in chambers suggesting that she develop a relationship with Jesus. As detailed by Mizelle, Reyes told Lynch: “What do you think Jesus would say to telling a group of people that they are so worthless, so worthless that we’re not going to allow them into homeless shelters? Do you think Jesus would be, ‘Sounds right to me’? Or do you think Jesus would say, ‘WTF? Of course, let them in.’?“ By Mizelle’s telling, this was “questioning [Lynch] about his religious views.”

What Mizelle ignored is that this is a case that turns in part on whether animus motivated Trump’s executive order. It was in that context — and in light of a Trump administration decision reversing protections for transgender people in need of space in homeless shelters — that Reyes raised the question. While Mizelle attempted to turn it into some sort of attack on Lynch’s faith, it was clear that Reyes was using the email in an admittedly ham-handed attempt to generalize the courtroom discussion about the motivations behind Trump’s policies. When he didn’t bite, she moved on."

Context matters, the judge was commenting on an e-mail she received.

[TwelveInchPianist]

How is an email she received relevant to the proceeding?

[Ama Valde Intellectum]

NOw you are just being a Hilllary hag naysayer.
To anything that is said , you can reply " How is that relevant?"

[wvattorney13]

Right? If the judge got an email from some guy in his mother's basement saying that women shouldn't be judges, should the parties have to submit supplemental briefing on gender equality in the federal judiciary?

[Savagely Average]

During the hearing the judge also denied that there are two sexes. While declining to offer an opinion as to the actual number of sexes humans have, she reportedly requested additional briefing and evidence from the government on the administration’s claim that there are only two sexes.

I’m finding it hard to imagine the awkwardness of needing to draft a brief explaining the ‘facts of life’ to a United States District Court Judge.

[TwelveInchPianist]

"Ultimately, I do not think Judge Reyes actually cared what Jesus thought..."

If the judge didn't care what Jesus thought, she wouldn't have asked the question. She believes that Jesus wants women to be required to share intimate spaces with men in homeless shelters, and she intends to base her ruling on that belief.

And according to the complaint, she appears to harbor other bizarre beliefs that should disqualify her from the case, including the belief that Trump's EO "literally eras[es] transgender people" (I'm pretty sure they're still around after Trump signed it).

In addition, she says that as a biological matter, there are 30 sexes.

If the "Pauline Newman treatment" is indeed constitutional, she sounds like an excellent candidate.

[RabbiGabriel]

Seems kind of obnoxious of the author to assume that a judge needs “mental screening” just for saying something he finds problematic.

[Savagely Average]

Suggesting an opinionated woman is crazy. Hackneyed and dull - par for the course for the unfunny Blackman.

Judge Reyes is evidently passionate about gender ideology. I disagree with her and I think her advocacy from the bench crossed a line.

But saying that that means she’s crazy? What a boring and lame take.

[Dr. Ed 2]

Impeach the DC

[hobie]

Good to see you hayseeds finally accept separation of church and state

[Bored Lawyer]

"Why on Earth did you not have this figured out with the defendants, before coming here and burdening me and burdening my staff on this issue? Are we really here right now on the sixth hearing of this day for me to decide whether to grant a TRO, given the circumstances that you guys could not even bother filing a TRO for 21 days?"

WOW. What an utter moron. So she took six days to figure out that filing a TRO after 21 days had lapsed is a good reason to deny a TRO. I know some judges who would figure that out in five minutes and deny the TRO in less than an hour. You'd better have a very good explanation of why a TRO was sought so late if you don't want to be laughed out of court.

[CJColucci]

I once went into court on the Friday before a three-day holiday weekend for a TRO hearing. (We were minor players tagging along while the big players fought.) The plaintiff's papers were about a foot thick and even a cursory reading showed that this was a long-simmering dispute that didn't require any relief that could not have been sought weeks before, if it were necessary at all.
The district judge (later elevated to the circuit) who was on emergency duty that day, denied the TRO explicitly, and on the record, precisely on the grounds that it had been brought on the afternoon of the Friday before a three-day weekend for no good reason, and put it over for the regularly-assigned judge's Tuesday calendar.
I have long wanted to be a judge just so I could make a ruling like that.

[wolfefan]

The question isn't premised on the deity of Jesus. There are plenty of people who don't believe in Jesus as God or the son of God who nevertheless regard him as an important moral and ethical teacher.

[ReadMore]

You have to better regulate your adderall usage, Josh

[wvattorney13]

The judge is way out of line. How is any litigant responsible for the content of an email she gets from some rando and how does that then become an issue in the case?

If she was simply asking what would Jesus do, that would be problematic enough, but the crux of the question is more of an accusation: Jesus would not act this way and your side claims to be on the side of Jesus. Therefore why don't you act like him?

It is more than a religious test but an insult towards counsel that his client was not practicing his religion on its own terms, as the judge has defined them.

The judge is out of control and should be sanctioned for such conduct.

[John F. Carr]

It's not a religious test. It's closer to attempted state establishment of a religion, implying that government policy should be what modern Americans think Jesus would have liked.

[TwelveInchPianist]

Yeah, but if you don't believe in Jesus, you can't answer the question.

[JoeFromtheBronx]

People who "don't believe in Jesus" (which apparently means not that he existed but Christian understandings) discuss and analyze his teachings like those who don't believe in communism discuss what Karl Marx "believed" about something.

[Stuart]

Oh yes Josh I am sure you are deeply concerned about her well-being.

[John Rohan]

They should have answered with a question of their own: "do you think Jesus would approve of forcing females in shelters for battered women to take in male roommates?" And yes that has happened.

https://www.them.us/story/trans-shelter-roommate-complaint

[MaddogEngineer]

If we didn't have double standards, we'd have none at all...

I am often hesitant to give Blackman too much credit here, but he's perhaps unintentionally stumbled across something here: the usual suspects would be losing their minds if a "Republican" judge asked a (progressive) lawyer whether Jesus would approve of liberal issue Y. Some people would be screaming about religious tests and the mythical wall of separation.

[wvattorney13]

Imagine at oral argument in Lawrence v. Texas if Scalia had asked counsel if Jesus would have approved of homosexual sodomy. There would have been cries for impeachment.

[JoeFromtheBronx]

He asked multiple inappropriate questions, don't worry, and there wasn't really any serious talk of impeachment when he did so.

[Sorcer23]

Don't know the name of the DOJ lawyer, but if he or she was not a Christian a correct response would be: "I can't say, Jesus is not part of my religion. I am not a Christian.".

[CJColucci]

Jesus is a recognized prophet in Islam, under the name Issa. So if the DOJ lawyer were Muslin he or she couldn't say that. My understanding is that Jews, by contrast, don't recognize him (or Him) at all, but I could be mistaken

[Alpheus W Drinkwater]

We tried, but he'd grown that beard and long hair.

[ReaderY]

Looking strictly and narrowly at the Religious Test argument, and resolving doubts in favor of the accused, the comment could potentially be based on Jesus as a historical and ethical rather than a theological figure. It would not be implicated if the judge had asked, for example, what Abraham Lincoln or Martin Luther King Jr. would do.

[JoeFromtheBronx]

The judge's questioning about Jesus was at least ill-advised but the level of trolling here is counterproductive if a person actually cares.

[Alpheus W Drinkwater]

It's almost as if every argument they make is in bad faith.

[damikesc]

The judge is CLEARLY showing a prejudging of the case. Should be removed from this case post haste.

[Ridgeway]

"Mr. Hilton, are you the second coming of our savior?"

"Excuse me?"

"Are you Jesus Christ come back to Earth?"

"uuuh"

[gavel]

Now THAT's a religious test!

https://www.youtube.com/watch?v=a_zJDJGJ82M&ab_channel=TheWireEps

[JKillion]

To those who view Jesus as just a 1st century Jewish rabbi, the question raised has nothing to do with religion. And why would a Jew have an issue with such a question regarding the supposed views of a Jewish rabbi?

That being said, that question, which had nothing to do with case, was absolutely inappropriate.