Law & the Courts

Nominees Hostile to Religious Liberty Have No Place on the Federal Bench

Lawyers have a duty to their clients — but that’s no excuse to launch gratuitous attacks on the faithful.

Missourians are sensible people. Like so many Americans, they understand that the self-appointed elites in our country don’t particularly care about them or their values. That’s especially true in our courts, where too many unelected, activist judges ignore the law and force on the rest of us their own agenda.

The people of Missouri sent me to Washington to fight for their values. It is my solemn responsibility as a member of the Senate Judiciary Committee to ensure the women and men to whom we give lifetime appointments will dispassionately follow the law and uphold the Constitution. That’s what I’ve done. And, once again, the Washington establishment is attacking me for it.

Michael Bogren is a nominee for a judicial seat in Michigan. He is currently defending the city of East Lansing, Mich., in a lawsuit brought by Steve and Bridget Tennes. The Tenneses are a faithful Catholic family who operate Country Mill Orchard and Cider Mill. After they stated publicly that they believe in the Bible’s teachings on marriage and adhere to those beliefs for their business, the city barred them from participating in the local farmers market. They were then forced to sue the city to defend their rights.

Mr. Bogren responded with a scorched-earth strategy in his litigation against the Tennes family. He wrote, “Plaintiffs attempt to dress their arguments up in a shimmering gown of First Amendment and religious righteousness and parade it down the runway of moral superiority. When stripped of its costume, however, what lurks beneath is simply this: discriminatory conduct.”

He compared their Christian beliefs about marriage to the racism of the Ku Klux Klan, arguing that following the teachings of their faith by not celebrating same-sex weddings on their farm was “no different than the ‘White Applicants Only’ sign.” He also attacked the sincerity and the consistency of their beliefs, arguing that they only “selectively” apply their faith to their lives.

Lawyers have a duty to their clients, as I well know. I’ve represented many myself. But a lawyer can give his clients a vigorous defense without stooping to personal attacks and vicious rhetoric. Mr. Bogren’s repeated attacks on the Tennes family go beyond merely representing the city. His hostility toward their faith raises questions about his fitness to be a federal judge.

I asked Mr. Bogren about these statements at a hearing before the Senate Judiciary Committee. Shockingly, he stood by them as merely representation of his client.

As attorneys, our oaths require us to do much more than advocate on our clients’ behalf. We also swear to uphold the law itself and to always conduct ourselves with integrity. And that means not launching gratuitous attacks against faith groups — especially when you represent the government. It’s one thing to advocate on behalf of your client, but Bogren went too far. Last year’s Masterpiece Cakeshop decision makes clear that government officials who show “hostility toward the sincere religious beliefs” of bakers like Jack Phillips and farmers like the Tenneses violate the First Amendment.

Tens of millions of Americans believe what the Tennes family believes about marriage, including Catholics, Jews, Mormons, Muslims, Protestants, and more. We are in a moment in history when the basic human liberty of these citizens to live, work, and otherwise participate in public life is threatened by those who view their beliefs as toxic and unacceptable. The right to religious free exercise enshrined in the First Amendment is the fundamental freedom, and we need judges who will uphold it.

Michael Bogren’s answers are not acceptable for a judicial nominee. We can and must do better.

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