Judiciary Branch

The Senate Just Confirmed One of Trump's Most Anti-LGBTQ Judges Yet

Advocacy groups say Kacsmaryk “will be incapable of treating LGBT litigants fairly . . . because he does not acknowledge LGBT people as having a right to exist.”

By Alison Durkee

June 19, 2019

People wave two LGBTQ pride flags in front of the U.S. Supreme Court building

The Trump administration, with the help of the U.S. Senate, is continuing its crusade to reshape the nation's federal courts—by appointing one of its most anti-LGBTQ judges yet. The Senate officially confirmed Judge Matthew Kacsmaryk to the U.S. District Court for the Northern District of Texas Wednesday, in a vote of 52-46. The only one to break party lines with their vote was Republican Sen. Susan Collins, who cited Kacsmaryk's “alarming bias against LGBTQ Americans and disregard for Supreme Court precedents” in her decision to vote against his appointment.

Indeed, one look at Kacsmaryk's legal record makes this “alarming bias” abundantly clear. The now-federal judge has fought against numerous LGBTQ protections, signed on to a letter that called being transgender a “delusion,” criticized the Supreme Court ruling on marriage equality, and represented an Oregon bakery that refused to bake a wedding cake for a same-sex couple. In a 2015 article, Kacsmaryk decried the Equality Act as punishing those who “exercise their millennia-old religious belief that marriage and sexual relations are reserved to the union of one man and one woman,” and described the fight for LGBTQ rights as part of a broader “Sexual Revolution” that “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology.”

And Kacsmaryk's record on reproductive rights isn't any better. Kacsmaryk, who previously served as the deputy counsel for the Christian advocacy group First Liberty Institute, opposed the contraceptive mandate in the Affordable Care Act and wrote an amicus brief opposing a Washington law that would require pharmacies to provide birth control. In his 2015 article, the then-lawyer described the passage of Roe v. Wade as “seven justices of the Supreme Court [finding] an unwritten ‘fundamental right’ to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy ‘penumbras’ of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye.” Kacsmaryk then claimed “the unwritten constitutional right to abortion collides with written constitutional rights to speech, association, assembly, and religion.”

While Kacsmaryk is one of many far-right judges to be appointed by Trump and confirmed by the Senate, LGBTQ advocates and Democrats have singled his appointment out as being particularly harmful. “He is one of Trump’s most extreme nominees,” University of Richmond law professor Carl Tobias told the Huffington Post, adding that litigants in cases involving LGBTQ and abortion rights “will have difficulty believing that he will fairly resolve their cases.” Seventy-five LGBTQ and other human rights groups signed a letter opposing his nomination, which said that the then-nominee's record “reveals that he will be incapable of treating LGBT litigants fairly—no matter what body of law is at issue in the cases over which he may preside—because he does not acknowledge LGBT people as having a right to exist.”

Democrats blasted Kacsmaryk's appointment on the Senate floor: Sen. Dick Durbin declared Kacsmaryk “yet another extreme nominee outside the mainstream of American thinking” and noted it was “unusual, more than coincidental” that Republicans would schedule Kacsmaryk's vote during Pride month. “Why on earth is this man a nominee for a lifetime appointment?” Senate Minority Leader Chuck Schumer asked. “Why would my colleagues want to drape black robes over these bigoted views? Our judicial system is designed to protect liberties, not denigrate them.” (Republicans other than Collins, meanwhile, have supported Kacsmaryk, whom Sen. Ted Cruz described as “an accomplished attorney with a proven record of excellence, professionalism, and fidelity to the U.S. Constitution.”)

Judicial appointments like Kacsmaryk's have become one of the hallmarks of the Trump administration, as Trump and Senate Majority Leader Mitch McConnell have worked to fill federal judicial positions at a record pace. Trump touted his judicial appointments during his 2020 campaign kickoff in Orlando, Florida, Tuesday, where he bragged about appointing his 145th judge and the “record percentage” of judges he'd put on the bench as president. “By the time we’re finished with the rest we will have record percentages, our percentage will be a record except for one person and one person has a higher percentage than your favorite president, Donald Trump,” Trump said Tuesday, making a claim that has been debunked in the past. “He’s got a higher percentage than me, and it’s devastating. His name is George Washington.”