Less than two weeks after the Senate narrowly confirmed church-state separation opponent Brett Kavanaugh to the U.S. Supreme Court, Senate Republicans today will try to advance to the federal bench another Trump nominee with a hostile record on religious freedom.
Allison Jones Rushing, a North Carolina lawyer, is President Donald Trump’s nominee for a lifetime appointment to the 4th U.S. Circuit Court of Appeals based in Richmond, Va. At 36, Rushing is believed to be Trump’s youngest judicial nominee yet – which is all the more alarming because she could impart her harmful views on church-state separation for half a century.
Rushing has the conservative credentials Trump supporters are seeking – a 2007 Duke Law School grad, member of the conservative Federalist Society and former intern at Alliance Defending Freedom (ADF), the Religious Right legal group that represents Masterpiece Cakeshop and several other businesses seeking the legal right to weaponize religious freedom in order to refuse to serve LGBTQ customers. She clerked for Justice Clarence Thomas and for Justice Neil Gorsuch when he was on the 10th U.S. Circuit Court of Appeals. She since has worked as a corporate lawyer for a private firm.
Even more appealing to Trump’s fundamentalist Christian base, Rushing’s expressed views and professional affiliations indicate she’s an advocate for allowing governmental displays of religious symbols and allowing religion to justify discrimination, particularly against the LGBTQ community.
While an intern at ADF in 2005, Rushing co-wrote a law review article with another ADF attorney titled, “Nothing To Stand On: ‘Offended Observers’ And The Ten Commandments,” which argued that the courts should prohibit legal challenges to government-sponsored religious displays, such as the Ten Commandments, by claiming taxpaying members of the community don’t have standing – or the right to sue. The article mocks the objections to unconstitutional government favoritism of religion as “delicate plaintiffs with eggshell sensitivities,” “weak” and “pretty wispy stuff.”
In reality, these displays cause real harm by signalling to people who don’t share the same religious beliefs that they are outsiders in their own community and are disfavored by their own government. If the courts adopted Rushing’s view on standing, community members would have no way to challenge religious displays in court.
Rushing has continued to advance ADF’s agenda of undermining church-state separation by acting as a mentor to young attorneys through ADF’s Blackstone Legal Fellowship program; she has spoken at Blackstone programs at least three times, including last year, according to Alliance for Justice, a progressive judicial advocacy organization.
During a 2013 panel discussion, Rushing indicated she opposed the ruling in U.S. v. Windsor, the Supreme Court decision that struck down the Defense of Marriage Act (DOMA), which barred the federal government from recognizing the civil marriages of same-sex couples. Rushing praised the dissent by the late Justice Antonin Scalia, who claimed that DOMA “did have a valid basis,” and she criticized the majority for choosing to “write the opinion in a unique way that calls it bigotry to believe that homosexuality does not comport with Judeo-Christian morality.”
With a hostile view of church-state separation, Rushing and other Trump appointees could change the balance of power on the 4th Circuit, which ruled favorably on several religious freedom cases recently. Earlier this year the 4th Circuit ruled in favor of AU and allies against Trump’s Muslim ban. Late last year, the court ruled that a Maryland public school district is not required to fund a student’s religious education. Also last year the 4th Circuit struck down a North Carolina county’s practice of opening its meetings with overwhelmingly Christian prayers.
With Rushing and other Trump appointees on the federal bench, church-state separation is on the line. While the Supreme Court appointment of Kavanaugh is a clear threat to religious freedom, appointing judges with similar views to the federal appeals courts is just as concerning. Appellate judges also are lifetime appointees and since the Supreme Court hears a fraction of the cases that come before it, decisions made by the appellate courts often set important legal precedents.
To add insult to injury, Rushing’s confirmation hearing today before the Senate Judiciary Committee is occurring while the Senate is in recess – meaning many members won’t be present to hear to her testimony and question her troubling views. “The Committee has never before held nominations hearings while the Senate is in recess before an election,” noted a letter signed by all 10 Democrats on the committee, including ranking member Dianne Feinstein (D-Calif.).
Not only should the committee delay Rushing’s hearing, but they should reject her nomination in favor of a candidate who has more legal experience and whose views don’t contradict our country’s fundamental promise of religious freedom.