Bench Memos

Law & the Courts

Misguided ‘Pro-Life’ Attack on Trump Supreme Court Candidate Raymond Kethledge

Next on pro-life activist Andy Schlafly’s hit list is Sixth Circuit judge Raymond Kethledge. Schlafly complaints that Kethledge “joined a decision that favorably cited a precedent censoring a pro-life advertisement, and held against a Christian advertisement too.”

I don’t know whether Schlafly is referring to one decision or to two, and I haven’t been able to find any case that matches his description. My best guess is that he is sloppily referring to American Freedom Defense Initiative v. SMART, where Kethledge joined an opinion holding that the Detroit busing authority, consistent with its viewpoint-neutral policy against political advertising, was entitled to refuse to display on the side of city buses a proposed ad that read:

Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers!

And perhaps that decision somewhere “favorably cite[s] a precedent” involving “a pro-life advertisement.” If so, I haven’t found it.

In any event, it would be strange to refer to the ad above as a “Christian advertisement” (but not stranger, to be sure, than recasting  a sender of vile emails as “a pro-life internet activist”). And if a precedent involving a pro-life ad happens to be on point for some proposition, what good reason is there against citing it?

Insofar as Schlafly might be insinuating that Kethledge has been hostile to the interests of Christians, such an insinuation is baseless. For example, in Bible Believers v. Wayne County, Kethledge joined an en banc majority holding that the First Amendment protected the right of Christians to preach at an Arab-American festival, even though county officials contended that their actions could start a riot. And in Bays v. City of Fairborn, he joined an opinion holding that the First Amendment protected the right of two Christian ministers to evangelize at a local festival. 

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