We’d expect judges nominated to the U.S. Court of Appeals for the District of Columbia Circuit (the second most important court in the land) to be committed to the constitutional principle of church-state separation. Unfortunately, this description doesn’t fit Judge Justin R. Walker, whose confirmation hearing to the D.C. Circuit Court took place before the Senate Judiciary Committee earlier this week.
If you just listened to U.S. Sens. Mike Lee (R-Utah), Ted Cruz (R-Texas), Rand Paul (R-Ky.), and Josh Hawley (R-Mo.) discuss Walker at the hearing, you might think that the judge blocked an American “city from criminalizing Easter.” But Walker is not the savior of religious freedom portrayed. His past (limited to his scant six months of experience as a judge) shows an alarming misunderstanding of religious freedom.
To start, in On Fire Christian Center v. Fischer, Walker granted a temporary restraining order to block the mayor of Louisville, Ky., from preventing a church from holding drive-in Easter services during the COVID-19 pandemic. The first problem with his decision is that the city never intended to bar drive-in church services, but Walker never took the time to find out that critical fact. Nor did he take the time to find out that the churchgoers at past services weren’t staying in their cars with the windows up. They were bumping elbows and passing offering plates, breaking social distancing rules. Rather than getting the facts and realizing there was no case or controversy, Walker wrote a 20-page opinion with 86 footnotes that read like an audition for the D.C. Circuit.
Secular and religious gatherings must be treated the same, with no special religious exemptions that put people at risk of contracting or spreading the virus during the pandemic. In fact, granting exemptions to allow the church to meet in situations deemed too dangerous for secular gatherings violates the First Amendment. Religious freedom, as safeguarded by the First Amendment, gives us the right to believe – or not – as we see fit. But religious freedom does not give us a right to use our religion to cause harm to others, such as by spreading a deadly disease.
And the biggest issue with Walker’s ruling was his inaccurate and inappropriate descriptions of religious freedom rights throughout:
- Walker declared that “an American mayor criminalized the communal celebration of Easter.” This is false. The mayor, like in two-thirds of states, had temporarily suspended mass gatherings, whether secular or religious, to prevent the spread of the virus. Religious freedom is not a right to risk other people’s lives.
- Walker portrayed business owners who use religious freedom as a justification to refuse to serve LGBTQ customers as victims of “discrimination.” Religious freedom is not a right to use your religious beliefs as an excuse to harm other people.
- Walker jabbed at the nonreligious and non-Christians, whom he implied don’t understand religious freedom as well as Christians. Religious freedom is equally vital to all Americans, Christian or not.
And Walker expressed his lack of regard for church-state separation during his Senate hearing too:
- Walker mentioned the Free Exercise Clause of the First Amendment seven times, but he did not mention the Establishment Clause, which provides for separation of church and state, even once. Separation of church and state is the linchpin of religious freedom.
- Walker responded to questions from Hawley about Trinity Lutheran v. Comer, a 2017 Supreme Court case, by citing Justice Neil Gorsuch’s concurrence in the case. Gorsuch’s concurrence suggested that the First Amendment requires the government to fund religious activities with taxpayer dollars. This extreme interpretation of Trinity Lutheran would tear down the church-state wall as we know it and open the floodgates to all kinds of public funding for religious activities, from constructing churches to paying for religious education. The framers of the First Amendment would be aghast.
- Walker lavished praise on his former boss, Supreme Court Justice Brett Kavanaugh – particularly Kavanaugh’s “approach to the law.” Kavanaugh, you might recall, has stated that the wall of separation between church and state is “wrong as a matter of law and history.”
All the evidence shows that Walker will bring his problematic views of religious freedom to the D.C. Circuit. As a result, we wrote to senators and urged them to vote no on Walker’s nomination. It has only taken a six-month career and one hearing to reveal Walker’s harmful views of religious freedom – he will do much worse with a lifetime appointment.
Photo: Screenshot from C-SPAN