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Conservative religious freedom advocates may soon have two of their own on Texas federal district courts, and LGBT rights proponents are concerned.
President Donald Trump on Sept. 7 nominatedMatthew J. Kacsmaryk to the U.S. District Court for the Northern District of Texas and Texas First Assistant Attorney General Jeff Mateer to the U.S. District Court for the Eastern District of Texas.
These “nominees are totally unacceptable,” and their “records demonstrate that they would be dangerous and cause grave harm to LGBT rights if they were to make it to the bench,” Eric Lesh of Lambda Legal, New York, an LGBT rights organization, told Bloomberg BNA Sept. 13.
Both have worked at First Liberty Institute, an organization that has “repeatedly filed lawsuits that seek to use religion as an excuse to override or violate people’s civil rights,” Alex Luchenitser of Americans United for Separation of Church and State told Bloomberg BNA Sept. 12.
The nominees are part of a trend of Trump nominating individuals hostile to civil rights, Lesh and Luchenitser said.
Trump has the opportunity to create a lasting legacy on the judiciary. There are currently 144 vacancies out of 890 judgeships on the federal bench. Changes to the confirmation process, including the elimination of the filibuster, mean that Trump may get nominees confirmed that are less moderate than in the past.
There will be a total of four Republican-appointed judges at the Eastern District of Texas if Mateer is confirmed, equaling the number of Democratic-appointed judges. There will be seven Republican-appointed judges at the Northern District of Texas if Kacsmaryk is confirmed, further outnumbering the two Democratic-appointed judges there.
Mateer and Kacsmaryk could face scrutiny over their ties to FLI at their Senate confirmation hearings. Sen. Al Franken (D-Minn.) recently criticized U.S. Court of Appeals for the Seventh Circuit nominee Amy Coney Barrett for speaking to a conservative religious freedom organization.
The group has its critics, but it has represented a broad range of clients and has friends in high places.
FLI “is exclusively focused on religious liberty issues,” and represents “people of all faiths, including clients such as the Falun Gong, Muslims, Jewish synagogues, a Native American Sweat Lodge, and many more,” the group’s general counsel, Hiram Sasser, told Bloomberg BNA by e-mail Sept. 14.
FLI “has been focused on mainstream religious freedom cases,” Mathew Staver, founder and chairman of Liberty Counsel, a conservative religious freedom organization, told Bloomberg BNA Sept. 12.
First Liberty is different from similar organizations because it often works alongside large law firms, Staver said.
The group has worked with elite firms including Kirkland & Ellis, Gibson Dunn & Crutcher, and Morgan Lewis & Bockius.
“They’re involved in the litigation, but the large law firm oftentimes will take a lion’s share of that litigation work,” Staver said.
The organization’s senior counsel, Ken Klukowski, served on Trump’s transition team and was responsible for policy implementation concerning “protecting constitutional rights.” He also is senior legal editor for Breitbart News, the conservative website headed by former Trump chief White House strategist Stephen Bannon.
The nominees didn’t return requests for comment.
Kacsmaryk is FLI’s deputy general counsel, and Mateer was the group’s general counsel and executive vice president before becoming the Texas assistant attorney general.
FLI describes itself as the “the largest legal organization in the nation dedicated exclusively to protecting religious liberty for all Americans.” It was formerly known as Liberty Legal Institute and as Liberty Institute.
“We believe robust protections for the religious liberty of people of all faiths is key in a pluralistic society that is committed to tolerance and respect for people of differing backgrounds and opinions,” FLI’s Sasser said.
The group “protects and defends our Constitution by identifying citizens who have been deprived of their First Amendment rights and developing legal strategies to champion their rights in courts across the country,” Rebekah Ricketts of Gibson, Dunn & Crutcher LLP, Dallas, who has worked with FLI, told Bloomberg BNA by email Sept. 15.
Civil rights advocates have criticized FLI’s positions in disputes involving LGBT rights.
The group has a history of “espousing extreme views” opposing such rights, Lambda Legal’s Lesh said.
While at First Liberty, Mateer made “just really bizarre, crazy, outlandish” statements related to LGBT rights, Lesh said.
He cited a speech in which Mateer referenced a Colorado public school sued for refusing to allow a transgender girl, a first grade student, to use the girls’ restroom.
“A first grader really knows what their sexual identity” is? Mateer asked.
“It just shows you how Satan’s plan is working and the destruction that’s going on,” Mateer said.
Lesh also cited Mateer’s statement that legalizing same-sex marriage would be “the destruction of marriage” in a 2015 conference call Mateer had with the American Pastors Network.
If “you expand the definition” of marriage, “you’re actually destroying” it, Mateer said.
“It’s deeply concerning” that someone “who’s been that open with their animus” would be tasked with deciding cases impartially and applying precedent protecting LGBT rights, Lesh said.
FLI is representing Christian bakers Aaron and Melissa Klein, who refused to make a cake for a same-sex wedding, in Klein v. Ore. Oregon Bureau of Labor and Indus.
The Oregon Bureau of Labor and Industries found that the bakers violated a state anti-discrimination law, awarding $135,000 to the same-sex couple.
Kacsmaryk is listed on the bakers’ opening brief asking the Oregon Court of Appeals to vacate that order.
Custom designed “wedding cakes are First Amendment-protected art,” First Liberty argues.
FLI also filed an amicus brief supporting Colorado bakers in a similar dispute awaiting argument at the U.S. Supreme Court, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n.
Masterpiece Cakeshop “will determine whether the government can force individuals like Aaron and Melissa to choose between practicing their livelihoods and violating their consciences,” First Liberty says.
Mateer and Kacsmaryk’s supporters praise their commitment to the Constitution.
The nominees “have a proven track record” of “focusing on the Constitution,” Liberty Counsel’s Staver, who has known “the people at First Liberty for many years,” said.
“We highly respect these individuals and their focus on religious freedom,” Staver said.
Texas Attorney General Ken Paxton and Solicitor General Scott Keller had high praise for their colleague Mateer, in a press release praising his nomination to the bench.
“Jeff Mateer is a principled leader—a man of character—who has done an outstanding job for the State of Texas as First Assistant Attorney General,” Paxton said in the press release.
The “country is very fortunate to have a jurist committed to the rule of law and the constitutional principles on which this country was founded,” Keller said in the press release.
Kacsmaryk “served as an Assistant U.S. Attorney and received an award from Attorney General Eric Holder for his distinguished service,” Sasser said of his FLI colleague.
Mateer’s “career consisted of primarily high level commercial litigation, including representing the NCAA and corporations like Citigroup,” and he now manages “a docket of over 25,000 cases for the State of Texas,” Sasser said.
“These are the types of highly credentialed and experienced attorneys we need in Texas to manage an increasingly complex business and criminal docket,” Sasser said.
The nominees “are both outstanding lawyers who have excelled in every way—in private practice, government service, and public interest law,” Gibson Dunn’s Ricketts said.
“They are both supremely qualified to be federal district judges,” she said.
First Liberty has been involved in several significant cases involving the separation of church and state.
First Liberty represented a North Carolina county in a challenge to its practice of beginning meetings with sectarian, legislator-led prayers, in Lund v. Rowan County.
The full Fourth Circuit ruled against the county in July, setting up an eventual circuit split.
The Ninth Circuit ruled in August that the coach didn’t have a First Amendment right to pray in view of students and parents.
In 2010, the U.S. Supreme Court allowed a cross placed in the Mojave Desert by the Veterans of Foreign Wars on federal land to remain in place, in Salazar v. Buono.
The court cited VFW’s amicus brief filed by First Liberty and Cruz—who was then with Morgan Lewis— in saying that the cross was “intended simply to honor our Nation’s fallen soldiers” and wasn’t “an attempt to set the imprimatur of the state on a particular creed.”
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