Bench Memos

More on: Obama DOJ Picks a Fight Against Religious Freedom

Some folks on the Left are in a tizzy over my raising the possibility that the evident ideological commitments of two lawyers on the DOJ brief in the pending Supreme Court case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC might help to explain the Obama DOJ’s surprisingly aggressive position against the ministerial exception.

Displaying poor reading comprehension, a Media Matters minion alleges that I have “attacked” DOJ “for assigning two gay attorneys” to the case and ponders which of his misunderstandings of my position I hold.

Adam Serwer, also distorting what I’ve written (and providing no link to my post), seems to imagine that there’s no conceivable connection between the lawyers’ ideological commitments and the subject matter of the case. But one lawyer familiar with the case wrote to me in response to my initial post on Hosanna-Tabor (not the one Serwer and others are complaining about):

The gay rights groups sincerely view the Hosanna Tabor litigation as a deliberate, strategic effort to get the camel’s nose in the tent to undermine gay rights protections broadly.

And a lawyer active on religious-liberty issues, in conveying his astonishment at the ideological records of the two lawyers, e-mailed me:

Attorneys with strong gay rights commitments will generally bring a presumptive hostility to strong religious liberty claims. So whether or not it was a matter of political pressure, folks like those described in your [second] post have it internalized, and this brief is just an expression of what they’re carrying around daily. 

Not to be outdone by his fellow lefties, some badly confused fellow at a site mistitled Truth Wins Out combines juvenile name-calling with wild psychologizing. And, in the course of composing this post, I’ve run across an even more reckless series of distortions by a ThinkProgress blogger.

Here’s a question I’d like to pose to those who think that it’s objectionable for me to have raised the possibility that the ideological commitments of the two DOJ lawyers might have influenced DOJ’s position: Let’s say that DOJ in a Republican administration adopted a new and surprisingly aggressive position in a case involving conscience rights and that it turned out that two of the lawyers working on the brief had strong ideological commitments to the pro-life cause and/or, let’s say, to conservative Catholic causes generally. Would you maintain that it would be improper to raise the question whether those ideological commitments influenced DOJ’s position?


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