The Trump administration has spent the past four years stacking the courts with anti-gay judges, according to a new report from LGBTQ civil rights group Lambda Legal.
Nearly 40 percent of President Donald Trump’s confirmed federal appellate judges have demonstrated anti-LGBTQ bias, the organization claimed, from opposing same-sex marriage and protecting businesses’ rights to reject gay customers to helping implement the military’s transgender ban.
Lambda Legal CEO Kevin Jennings said the report is a “call to action” for President-elect Joe Biden.
“While Donald Trump’s presidency may be coming to end, his devastating impact on our federal courts will take decades to reverse,” Jennings said in a statement. “When the basic human rights of LGBTQ+ Americans are so often challenged in court, we cannot accept a judiciary stacked with judges who would disenfranchise these vulnerable groups.”
The report, Courts, Confirmations & Consequences, also claims that the outgoing administration has seated judges faster than any other in recent history: 54 of Trump’s circuit court nominees were confirmed in four years, while President Barack Obama had only 55 confirmed in his eight years in office.
Of Trump’s 57 nominees for federal appellate judgeships, Lambda Legal opposed 22 because of their anti-LGBTQ records, including three who received lifetime appointments in 2020.
Among them is Andrew Brasher, who was confirmed in February to the 11th U.S. Circuit Court of Appeals. Previously, Brasher worked with the Alliance Defending Freedom on an amicus brief that argued that same-sex marriage was “harmful to children.”
In another amicus filing, Brasher claimed that a New Mexico wedding photographer had the right to turn down a gay couple because her involvement would suggest “approval, validation and celebration of the ceremony.”
Lambda Legal senior attorney Sasha Buchert called Brasher’s appointment an “affront to civil rights.”
“Judge Brasher’s record to undermine the rights of LGBTQ people and years of advocacy to suppress voting rights should not have been rewarded with the lifetime promotion that he just received from Republicans in the U.S. Senate,” Buchert said in a statement at the time.
Cory Wilson, who was appointed to the 5th Circuit court in June, called same-sex marriage “a pander to liberal interest groups” in a 2012 op-ed for the Press-Register of Mobile, Alabama. In another piece the same year, he defended Chick-fil-A CEO Dan Cathy’s donations to anti-LGBTQ causes, complaining that private citizens were being “bashed, banned, and bankrupted, simply for expressing their views.”
As a state legislator, Wilson backed Mississippi’s HB 1523, a controversial religious freedom law that allows businesses, state employees and even health care providers to refuse service to LGBTQ people based on “deeply held religious beliefs or moral objections.”
A month before Justin Walker was appointed to the D.C. Circuit court in September, he ruled in favor of a Christian photographer who ran afoul of the Fairness Ordinance in Louisville, Kentucky, when she advertised that she shoots only heterosexual weddings.
“America is wide enough for those who applaud same-sex marriage and those who refuse to,” Walker, then a district judge for western Kentucky, wrote in a 27-page opinion. “The Constitution does not require a choice between gay rights and freedom of speech. It demands both.”
Other confirmed Trump nominees whom Lambda Legal has opposed are D.C. Circuit appeals Judge Gregory Katsas — who, as deputy White House counsel, provided legal advice for the administration’s ban on transgender service members — and 5th Circuit appeals Judge Kyle Duncan, who represented the Virginia school district that tried to ban transgender student Gavin Grimm from using the bathroom aligning with his gender identity.
Lambda Legal did not oppose the nomination of Patrick Bumatay, now the first openly gay judge on the 9th Circuit appeals court. In February, Bumatay issued a dissent saying the Idaho Corrections Department was under no obligation to approve a prisoner’s request for gender-affirming surgery.
The country’s 13 federal appellate courts (12 circuit courts representing different regions across the U.S. and the Federal Circuit Court in Washington, D.C.) sit just one level below the Supreme Court. They are the final arbiters in tens of thousands of cases annually, because the Supreme Court traditionally takes up only a hundred or so.
“Circuit court judges exert tremendous influence in shaping our nation’s laws and have a profound impact on the everyday lives of Americans,” the report reads.
Trump appointees account for nearly a third of the 179 circuit judges. In nine of the 13 circuits, his picks are a quarter of the active-duty (i.e., non-senior status) judges. He also appointed 174 of the 644 judges on federal district courts.
White House deputy press secretary Judd Deere praised Trump’s “unmatched record” of appointing judges who believe in applying the Constitution “as written, not legislating from the bench.”
“The President has always been transparent with the American people about the qualifications he considers paramount and who he would consider for a seat on the High Court in order to ensure this exceptional nation built on the rule of law continues for generations to come,” Deere said in an email.
Before he leaves office on Jan. 20, Trump will also have appointed three Supreme Court justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
While Lambda opposed all three, Gorsuch issued the majority opinion last year in Bostock v. Clayton County, Georgia, a landmark decision that determined that the Civil Rights Acts of 1964 barred workplace discrimination based on sexual orientation and gender identity.
“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” Gorsuch wrote in the ruling in June. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
Sharon McGowan, Lambda Legal’s chief strategy officer and legal director, warned that there are many other areas in which Gorsuch has “been much more skeptical about the rights of LGBT people.”
She pointed to his joining Justice Clarence Thomas’ concurring opinion in the 2018 Masterpiece Cakeshop case, in which Thomas argued that the Colorado Civil Rights Commission violated baker Jack Phillips’ right “to freely exercise his religion” by requiring him to sell a wedding cake to a gay couple.
And in a dissenting opinion in Pavan v. Smith, Gorsuch argued in 2017 that the court’s landmark 2015 Obergefell v. Hodges ruling, which made gay marriage legal nationwide, didn’t guarantee the right of same-sex parents to have both their names appear on their children’s birth certificates.
“While some arguments can reach him … he’s certainly not a reliable vote,” McGowan said.
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