Senate Confirms Religious Liberty Expert For Seat On 5th Circuit

The U.S. Senate yesterday by a vote of 50- 47, confirmed Stuart Kyle Duncan, of Louisiana, to be United States Circuit Judge for the Fifth Circuit. (Senate vote details).  Duncan has an extensive record of research and litigation on church-state and religious liberty issues. (See prior posting.)  In a press release from Becket, where Duncan served as general counsel for two years, the advocacy group's current president said in part:

At Becket, Kyle was a steadfast defender of religious liberty for people of all faiths and was known for his intelligence and evenhandedness. His generosity and respect for others has made him a great advocate, and will make him a fair and respected judge.

UPDATE: In a statement issued April 24, the Human Rights Campaign took a different view of Duncan's record, calling him an "extremist, anti-LGBTQ nominee."

At Hearing Judicial Nominee Retreats From Prior Pro-Life Comments

Yesterday the Senate Judiciary Committee held a hearing on the nomination of Wendy Vitter to be United States District Judge for the Eastern District of Louisiana.  NPR reports on the hearing:

Wendy Vitter, nominated by President Trump for a federal judgeship, tried Wednesday to walk back several controversial comments she made about abortion and birth control.

Questioned by skeptical Democrats at her confirmation hearing, she maintained she could "put aside" her long-held "pro-life" advocacy, and as a judge enforce the Supreme Court's Roe v. Wade decision on abortion rights.

In particular, Vitter sought to distance herself from a brochure she had appeared to endorse while leading a panel at a pro-life conference in 2013. The panel was called "Abortion Hurts Women," and the brochure promoted a variety of unsubstantiated claims linking birth control pills to breast cancer, cervical and liver cancers, and "violent death."

Judge Suspended, In Part For Refusal To Conduct Same-Sex Weddings

In In re Day, (OR Sup. Ct., March 15, 2018), the Oregon Supreme Court in a 91-page opinion suspended state circuit court judge Vance D. Day from his judicial office for three years without pay. The state's Commission on Judicial Fitness and Disability had recommended the harsher penalty of removal from office. (Commission report).  A number of unrelated charges were involved; the court concluded that six of the counts had been proven.  One of those was described as follows by the court in its press release on the case:

Count 12 concerned a change in respondent's chambers relating to marriage requests that he received after issuance of a federal court ruling, in May 2014, that had invalidated Oregon's constitutional ban on same-sex marriage. Before that ruling, respondent had made himself available to solemnize marriages. After that ruling, he told his staff that, upon receiving any marriage request, they should check for any personal gender information available in the court's case register system, to try to determine whether the request involved a same-sex couple. If so, they should tell the couple that he was not available on the requested date or otherwise notify him so that he could decide how to proceed. If the request were from an opposite-sex couple, however, then they should schedule the wedding date.  Respondent's judicial assistant checked the system one time and determined that a requesting couple might be a same-sex couple, but respondent had an actual scheduling conflict, so she truthfully told the couple that he was not available.  Several weeks after that, respondent stopped solemnizing all marriages. The Court concluded that respondent's conduct had been willful and had violated Rule 3.3(B) (prohibiting manifestation of bias or prejudice in the performance of judicial duties) and related constitutional provisions. The Court did not address a number of constitutional challenges that respondent had raised as affirmative defenses to Count 12. It explained that, in light of the other, notably serious misconduct that the commission had proved by clear and convincing evidence, the misconduct at issue under Count 12 would not affect its consideration of the appropriate sanction, regardless of whether those constitutional challenges were meritorious or not.

Progressive Secular Humanist blog reports on the decision.

Suit Over Opening Prayers In Courtroom Survives Motion To Dismiss

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 19, 2018), a Texas federal district court refused to dismiss a an Establishment Clause challenge to the practice by a Texas Justice of the Peace of opening each court session with a lengthy Christian prayer by a guest chaplain from his chaplaincy program. The court concluded that two of the three plaintiffs had standing, and that they had stated a plausible claim that the judge's prayer practice violates the Lemon test.  the judge had campaigned on a platform of reinstituting religious values within the office.  Both Freedom From Religion Foundation and First Liberty issued press releases announcing the decision. First Liberty also has links to some of the pleadings in the case.  (See prior related posting.)

Trump Renominates Brownback for International Religious Freedom Post, Kacsmaryk For District Court

Yesterday President Trump sent a large number of renominations to the Senate, a step required after Democrats refused to consent to last Senate session's nominations rolling over into the new session.  As reported by the Kansas City Star, these included the renomination of Kansas Gov. Sam Brownback to be  Ambassador-at-Large for International Religious Freedom.

Last week, the President renominated 21 individuals for federal judgeships.  Among them is Matthew J. Kacsmaryk, nominated for Northern District of Texas.  Kacsmaryk specializes in religious liberty litigation as Deputy General Counsel at the First Liberty Institute.  Dallas Morning News reports on the renomination.

Australian Imams Publish Guidance For Muslim Witnesses In Judicial Proceedings

The Australian National Imams Council announced yesterday the release of a document titled Explanatory Note on the Judicial Process and Participation of Muslims (full text).  Prepared in cooperation with the Judicial Council of New South Wales, the document is designed to:

a) give practical guidance and explanation to members of the Australian Muslim community of the etiquette and behaviours expected of persons engaging in the judicial processes so that they may act consistently with these without compromising their religious beliefs; and,

b) provide information to judicial officers on Islamic concepts and practices as they relate to matters which may be raised in connection with Muslims participating in the court processes.

Among other things, the document says that there are no religious prohibitions on a Muslim standing up for the Magistrate or judge as a sign of respect.  It also announces:

It is not contrary to Sharia law for a woman to uncover her face when she is giving testimony in court, whether she is a witness in a case or is there to witness a deal, and it is not contrary to Sharia law for the Magistrate or Judge (male or female) to look at her in order to know or identify who she is, make assessments as to credibility where this is an issue and protect the rights of all concerned.

The document also outlines the appropriate way to swear in a Muslim witness. Daily Telegraph, reporting on the document, outlines some of the situations in Australian courts that led to the need for these clarifications.

Trump Adds 5 Names To List of Potential Supreme Court Nominees

On Friday, just before White House Counsel Donald F. McGahn delivered the Barbara K. Olson Memorial Lecture at the Federalist Society National Lawyers Convention, the White House issued a release announcing the addition of five names to the President's list of potential Supreme Court nominees. Among the five is Amy Coney Barrett who on Oct. 31 was confirmed for a position on the 7th Circuit after controversy over her views on reproductive rights, abortion, LGBTQ rights, as well as controversy over her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) Other new names on the President's list are: Britt C. Grant (Georgia Supreme Court Justice); Brett M. Kavanaugh (Judge on the D.C. Circuit);  Kevin C. Newsom (11th Circuit Judge); and Patrick Wyrick (Oklahoma Supreme Court Justice).  The Hill reports on these developments.

Barrett Confirmed For 7th Circuit After Controversy Over Her Religious Beliefs

The Hill reports that the U.S. Senate yesterday confirmed the nomination of Notre Dame Law Professor Amy Coney Barrett for a seat on the U.S. 7th Circuit Court of Appeals.  Three Democrats joined Republicans to approve the nomination by a vote of 55-43.  Barrett's nomination had become controversial because of her views on reproductive rights, abortion, LGBTQ rights, as well as her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) After the Senate's confirmation vote, a spokesperson for The Catholic Association said:

Amy Coney Barrett's qualifications for the federal judiciary are undisputed, but abortion industry advocates continue their smear campaign by attacking Barrett's Catholic faith.  The full Senate rejected their attempt to hang a ‘Catholics need not apply’ sign outside the Senate chamber when it considers candidates to the judiciary.

District Court Nominee's Prior Speeches Create Concern

As previously reported, earlier this month President Trump nominated Texas Assistant Attorney General Jeff Mateer for a federal district court judgeship in Texas.  Mateer was previously general counsel and executive vice president of the First Liberty Institute.  Now, according to Wednesday's San Antonio Express-News, Texas Senator John Cornyn is expressing concern over the nomination after CNN discovered speeches in which Mateer referred to transgender children as part of "Satan’s plan" and defended the use of gay "conversion therapy."

Trump Nominates Religious Liberty Expert For Seat On 5th Circuit

Yesterday President Trump announced (among other nominations) the nomination of Kyle Duncan for a seat on the U.S. 5th Circuit Court of Appeals. Much of Duncan's career has been devoted to religious liberty concerns.  Reporting on the nomination, the Baton Rouge Advocate calls Duncan a "conservative Christian legal warrior."

An unusually deep record of Duncan's views on First Amendment issues is available.  From 2004-2008, he was an Assistant Professor of Law at the University of Mississippi where he taught courses on constitutional law, church-state relations, and free speech. (Bio.)  Duncan's publications include:

• Secularism's Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003).
• Bringing Scalia's Decalogue Dissent Down from the Mountain, 2007 Utah L. Rev. 287 [LEXIS link].
• Prosecution Responses To Internet Victimization: Child Pornography and First Amendment Standards, 76 Miss. L. J. 677 (2007).
• Subsidiarity and Religious Establishments in the United States Constitution, 52 Vill. L. Rev. 67 (2007).
• Misunderstanding Freedom from Religion: Two Cents on Madison's Three Pence, 9 Nev. L.J. 32 (2008).

From 2012- 2014 Duncan served as general counsel for the Becket Fund for Religious Liberty.  He was lead counsel in the Supreme Court case of Hobby Lobby Stores v. Burwell which concluded that the Affordable Care Act's contraceptive coverage mandate violates religious rights of objecting small businesses under RFRA.  Here is the merits brief that Duncan's team filed in the case.

Now a partner in the Washington, D.C. law firm of Scherr Duncan, his web page includes links to nearly a dozen news interviews and blog posts in which Duncan talks about religious liberty issues.

Nominees For Federal Bench In Texas Have Religious Liberty Defense Background

Dallas News reports that among the 16 judgeship nominations announced by the White House yesterday are two nominations to Texas federal district courts of individuals with extensive backgrounds in issues of religious liberty.  Jeff Mateer, currently First assistant Attorney General of Texas, was previously general counsel and executive vice president of the First Liberty Institute. Matthew J. Kacsmaryk is currently Deputy General Counsel to First Liberty Institute.  First Liberty describes itself as "the largest legal organization in the nation dedicated exclusively to protecting religious liberty for all Americans."

7th Circuit Nominee Questioned On Religious Beliefs and Judicial Duties

The Senate Judiciary Committee yesterday held hearings on the nominations of four federal judges and the nominee to head the Justice Department's Civil Rights Division. (Video of full hearings).  One of the nominees, Notre Dame Law Professor Amy Coney Barrett, tapped for a seat on the U.S. 7th Circuit Court of Appeals, faced extensive questioning stemming from a background report from the Alliance for Justice. That report focuses in part on a 1998 law review article titled Catholic Judges in Capital Cases that was co-authored by Barrett.  This led to several exchanges with senators on the role a judge's religious beliefs play in judicial decision making. Daily Caller reports on the hearing.

Cert. Filed In Wyoming's Disciplining of Judge For Refusing To Perform Same-Sex Marriages

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in Neely v. Wyoming Commission on Judicial Conduct and Ethics, (cert. filed 8/4/2017).  In the case, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. (See prior posting). ADF issued a press release announcing the filing of the petition for review.

Appeals Court Refuses To Order Recusal of Fundamentalist Christian Judge

In Ex parte Tiara Brooke Lycans, (AL App., July 28, 2017), an Alabama appellate court refused to issue a writ of mandamus ordering a trial judge who also serves as a preacher of a fundamentalist Christian church to recuse himself in a divorce action in which the wife, a lesbian, feared bias in the judge's custody ruling.  The court said in part:

Judge Bell's expressed belief that homosexual relationships and marriage are contrary to God's law, ... that God's law takes precedence over man-made law, and his placing paramount importance on the moral environment in which a child will live ... would tend to indicate to a reasonable person that a reasonable basis for questioning Judge Bell's impartiality in the divorce action exists; however, the standard is not whether there are some facts that would tend to indicate ... a reasonable basis.... Rather, the issue is "whether a reasonable person knowing everything that [Judge Bell] knows would have a "reasonable basis for questioning [Judge Bell's] impartiality."...  Judge Bell, in his pendente lite custody order ... granted the mother and the father joint physical custody of the child, with custody alternating weekly, and ... [he] has granted two other lesbian mothers and the fathers of their children joint physical custody.... [A] reasonable person who knows everything that Judge Bell knows would not have a reasonable basis for questioning Judge Bell's impartiality....

Christian Post reports on the decision.

New Trial Sought After Juror Dismissal For Hearing Holy Spirit

As previously reported, last month a Florida federal court jury found former Congresswoman Corrine Brown  guilty on 18 counts of fraud and corruption after the judge removed a juror who insisted the Holy Spirit had told him Congresswoman Brown was not guilty on all charges. Now a motion for a new trial has been filed (full text).  The motion in United States v. Brown, (MD FL, filed 6/8/2017), argues:

There is a substantial possibility the holy spirit was actually the juror's own mind or spirit telling him that one or more witnesses had not testified truthfully.

[Thanks to Ray Treadwell for the lead.]

Juror Removed For Religious Statement Made In Deliberations

According to FirstCoast News, in a Jacksonville, Florida federal district courtroom earlier this month, a jury found former Congresswoman Corrine Brown  guilty on 18 counts of fraud and corruption. The jury's decision came a day after the judge removed one of the jurors  (referred to as Juror 13) from the panel. The judge took action against Juror 13 after another juror sent the judge a letter complaining about Juror 13's religious remarks. Near the beginning of deliberations, Juror 13 told the others that the Holy Spirit had told him Congresswoman Brown was not guilty on all charges. The full transcript of the judge's questioning Juror 13 before deciding to remove him from the jury makes interesting reading.

Judge Recuses Himself Over Conscientious Objection To Gay Adoptions

The Louisville Courier Journal last week reported on Kentucky Family Court Judge W. Mitchell Nance who issued an order last Thursday stating that he will recuse himself from all adoption proceedings involving "homosexual parties." His order explains that "as a matter of conscience" he believes that "under no circumstance" would "the best interest of the child be promoted by the adoption by a practicing homosexual." He cited judicial ethics rules that require a judge to recuse himself when he has a personal bias or prejudice.

Israel Appoints First Woman As Judge On Muslim Religious Court

Haaretz reports that Israel has for the first time in the country's history appointed a woman to serve as a judge (qadi) in a Muslim religious court.  Government appointed religious courts in Israel have jurisdiction over personal status matters, particularly marriage and divorce.  The appointment of Hana Khatib, a family lawyer, was confirmed unanimously today by Israel's Judicial Appointments Committee.

UPDATE: Haaretz (4/27) has an interesting background piece on the appointment.

9th Circuit Judge John Noonan Dies At Age 90

Ninth Circuit Senior Judge John T. Noonan, Jr. died on April 17 at the age of 90. A News Release from the 9th Circuit described Noonan as "a distinguished jurist and an eminent scholar with a particular focus on the historical development of moral concepts." Before he was appointed to the bench, Noonan was a law professor at Notre Dame and then at Boalt Hall.  He was also a prolific scholar, as pointed out by the same News Release:

His major publications include 13 books, most notably “Bribes,” a magisterial historical study of bribery published in 1984; “The Lustre of Our Country: The American Experience of Religious Freedom,” a 1998 tome tracing the origins of religious freedom back to the Founders; and “Contraception: A History of Its Treatment by the Catholic Theologians and Canonists.” Published in 1966, “Contraception” is said to have influenced Pope Paul VI to create a commission to study the issue, to which Judge Noonan served as an advisor.

Judge Sued Over Opening Prayers In Courtroom

Freedom From Religion Foundation filed suit last week in a Texas federal district court against a Montgomery County, Texas Justice of the Peace who opens his court sessions with a chaplain-led prayer.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Mack, (SD TX., filed 3/21/2017), contends that the practice violates the Establishment Clause. FFRF issued a press release announcing the filing of the lawsuit. (See prior related posting.)