Trump Nominee Duncan Continues ‘Religious Freedom’ Focus

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By Patrick L. Gregory

Fifth Circuit nominee Kyle Duncan has been at the center of some of the nation’s biggest civil rights and religious freedom controversies in recent years.

He represented the school district sued by transgender teen Gavin Grimm over its bathroom access policy, defended Louisiana’s same-sex marriage ban, and represented Hobby Lobby in its religious objection to the Affordable Care Act’s contraceptive mandate.

Duncan’s Oct. 2 nomination is part of a pattern of recent nominees “who would cause grave harm to LGBT people” if confirmed, Eric Lesh of Lambda Legal, New York, an LGBT rights organization that has often opposed Duncan in court, told Bloomberg Law.

That trend includes Trump’s nominations of Jeff Mateer and Matthew Kacsmaryk to district courts in Texas, Lesh said. Both worked for the First Liberty Institute, a conservative religious freedom organization that has been criticized by LGBT rights activists.

Duncan served as Louisiana’s solicitor general, taught constitutional law at the University of Mississippi law school, and was general counsel to the Becket Fund for Religious Liberty before helping found the boutique firm of Schaerr Duncan LLP, Washington.

“He has been in the classroom, in government service, and in private practice at the highest levels,” which is “exactly the kind of experience you want in an appeals court judge,” Lori Windham of the Becket Fund for Religious Liberty, Washington, told Bloomberg Law by email.

At Becket Fund, Duncan advocated for clients ranging from Catholic nuns “to a Sikh IRS agent to a Jewish prison inmate,” Windham said.

Having him on the U.S. Court of Appeals for the Fifth Circuit “would ensure that people of all faiths receive a fair hearing and equal protection for their religious freedom,” she said.

Most of the Fifth Circuit’s current judges were appointed by Republican presidents.

Duncan referred a request for comment to the Justice Department, which didn’t return a request for comment.

HB2, Discrimination

Lambda Legal has “a long history” of “fighting with Kyle Duncan” as he defends discrimination, Lesh said.

He “seems to have developed a niche practice involving the defense of anti-transgender measures,” including his representation of state legislators sued over North Carolina’s House Bill 2, Lesh said.

That bill required that multiple occupancy bathrooms, including those managed by local school boards, be “used by persons based on their biological sex.”

The American Civil Liberties Union of North Carolina and several individuals alleged that the bill violated Title IX of the Education Amendments of 1972 because it discriminated against LGBT persons on the basis of sex, sexual orientation, and transgender status.

The bill was partially repealed, but the case, Carcano v. Cooper, is pending.

Becket Hails

Duncan received high praise from his colleagues at Becket Fund, which describes itself as a “a non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.” Lambda Legal’s Lesh called Becket Fund “an anti-LGBT legal organization that advocates a distorted view of religious liberty in order to attack LGBT rights.”

“Kyle was a great colleague,” Becket Fund’s Windham said.

He’s “always willing to hear opposing points of view and consider the other side of an argument,” she said.

“Those qualities made him a skilled advocate for people of diverse faiths and will make him an excellent judge,” she said.

“Americans of all faiths should welcome Kyle’s nomination,” Bill Mumma, the organization’s president, said in a press release.

Few attorneys “have demonstrated the kind of empathy and understanding of people of many different backgrounds that Kyle has,” Mumma said.

Duncan is “an intelligent, upstanding man who will do great service for the Court and for all Americans,” Mumma said.

Gavin Grimm, Bathrooms

In 2016, Duncan represented the Virginia school board Grimm sued for bathroom access, appearing on NPR.

Grimm argued that his high school violated Title IX by not letting him use the bathroom that corresponded to his gender identity.

It’s “a difficult issue,” and the question is “about not so much what is decided, but who decides,” Duncan said.

Any changes to Title IX should be handled by Congress rather than “the stroke of a pen of a federal bureaucrat,” he said. The Obama administration had issued guidance interpreting Title IX to apply to transgender students.

Duncan’s client, the Gloucester County School Board, wanted “to show a great deal of compassion and care to this student, but they also have to balance out the rights to privacy of all of the other students,” he said.

The controversy reached the U.S. Supreme Court but was remanded after the Trump Administration rescinded the Obama-era guidance, in Gloucester County School Board v. G. G.

A district court must now decide whether the case became moot due to Grimm’s graduation from high school, before it decides whether Title IX protects transgender students.

Hobby Lobby, Screen Time

Duncan was the face of Hobby Lobby’s opposition to the Affordable Care Act provision requiring secular corporations to provide emergency contraception to employees.

“This is a conscience issue” for the company’s evangelical Christian owners, who challenged the provision under the Religious Freedom Restoration Act because they were concerned such contraception could cause an early abortion, Duncan said on CNN in 2012.

The family business’s owners “just don’t want to be forced to violate their conscience or have to pay millions of dollars in fines that would cripple” their family business, he said.

“One big theme in this lawsuit is that religious freedom is for everybody,” not just churches, Duncan said.

The Supreme Court ruled in the company’s favor in 2014, finding that it was entitled to protection under RFRA, in Burwell v. Hobby Lobby Stores, Inc.

Same-Sex Marriage

The ex-Louisiana solicitor general also helped defend his former employer’s same-sex marriage ban.

Louisiana’s “definition of marriage as between one man and one woman” didn’t violate the U.S. Constitution, the U.S. District Court for the Eastern District of Louisiana ruled in 2014, in Robicheaux v. Caldwell.

Duncan also filed an unsuccessful amicus brief on behalf of Louisiana and 14 other states that didn’t recognize same-sex marriage in 2015’s Obergefell v. Hodges, in which the Supreme Court overturned Robicheaux by recognizing the right of same-sex couples to marry.

“Before 2003, no state in the United States had recognized same-sex marriage,” and before “2000, as I understand it, no country in the world had recognized same-sex marriage,” Duncan told NPR in 2015 prior to the decision.

“If it’s that new and it involves this bedrock exercise of sovereignty by states, it seems to us the right position is to say, then let the states figure it out,” he said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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