Each month, Rewire.News is examining the Trump judges behind some of the worst decisions in recent weeks. Read our previous columns here.
Judge Justin Walker will soon be ascending to the U.S. Court of Appeals for the D.C. Circuit, but first he’s inflicting maximum damage in Western Kentucky’s federal court on his way out.
In mid-August, Walker ruled in favor of an anti-LGBTQ conservative Christian photographer, Chelsey Nelson, who doesn’t want to photograph same-sex weddings. She also wants to advertise on her website that she will only photograph opposite-sex ceremonies.
Nelson is based in Louisville, Kentucky, which has a Fairness Ordinance prohibiting discrimination based on sex, gender identity, or sexual orientation. In his ruling, Walker held that requiring Nelson to photograph a same-sex couple would violate her First Amendment rights because she believes marriage can only be between a man and a woman.
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The case was a conservative cause célèbre. Longtime anti-LGBTQ law firm Alliance Defending Freedom brought the case, while the Department of Justice joined in, filing a brief declaring that “weddings are sacred rites in the religious realm.”
Walker didn’t want to sound completely anti-LGBTQ, which means he had to engage in some impressive mental gymnastics. He praised the Fairness Ordinance for having “real teeth” and “worthy goals” but complained that the law’s consequences meant Nelson faced a “credible threat of enforcement.”
Well, yes. That’s how laws tend to work.
He also decided the opinion was a good opportunity to describe what photography is—that “when we crop, frame, and add filters, we make a great memory even better by focusing on what we want to emphasize and taking out what we don’t.”
Well, yes. That’s how photographs tend to work.
Walker waxed rhapsodic while pretending that he was striking a majestic balance with his ruling. “America is wide enough for those who applaud same-sex marriage and those who refuse to. The Constitution does not require a choice between gay rights and freedom of speech. It demands both.”
That sounds great, but it’s a false balance. Same-sex marriage is the law of the land. It’s not something one has to applaud, but it’s not something one gets to refuse.
That false balance is also a slippery slope. As the American Civil Liberties Union pointed out in their brief, if someone can invoke the First Amendment to refuse to photograph a same-sex couple, why can’t they also refuse service to interracial or interfaith couples? Walker ignored that, saying it presents a question “that would undoubtedly be more difficult for a plaintiff to prevail on—questions on which the Court takes no position.”
That Walker’s star is rising isn’t a surprise. He’s fond of ruling in favor of religious conservatives. In April, he used a dispute between an evangelical church and the mayor of Louisville, Kentucky, to issue a partisan diatribe about religious liberty. When roughly 265 million Americans were under lockdown orders of some kind, Walker found in favor of the church, accusing Louisville’s mayor of having “criminalized the communal celebration of Easter.” Notably, he forgot to see whether the mayor was actually planning to stop the church from holding a drive-in Easter service.
Walker did the same thing in this case. He took a situation where there wasn’t yet an issue and ruled on it anyway, just to get more Christian evangelical beliefs enshrined into law. Nelson had not been asked to photograph any same-sex weddings, nor had she been asked to avoid bragging about discrimation on her website. The city never threatened to enforce the law against her.
In that way, the case was different from Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 Supreme Court case involving a baker who balked at being forced to bake cakes for LGBTQ couples. In that case, the anti-LGBTQ baker had actually been asked to make a cake for a same-sex couple and had refused.
Walker is on the federal bench precisely because he is going to deliver these results, not because he has any background that qualifies him to be a judge. Before his ascent to the federal bench, he had never tried a case. In fact, his experience was so minimal that the American Bar Association wasn’t able to determine how much of the previous decade Walker even spent practicing law.
But Walker loves Justice Brett Kavanaugh and stumped for him during his confirmation hearings. He went on scores of talk shows to explain what a great person Kavanaugh was. He’s also been a longtime protege of Senate Majority Leader Mitch McConnell, who made sure to get Walker confirmed to the D.C. Circuit in June, instead of doing something important like passing another coronavirus relief bill.
The average age of federal judges on the bench right now is 69. If Walker, currently 38, serves for the average duration, we’re looking at 30 more years of his conservatism elevating religion above health and human rights.