A federal judge in Michigan has ruled for a Catholic foster-care program, but religious objectors may find it a victory built on sand. I’m in the online Wall Street Journal today with an opinion piece explaining why. Related on Judge Robert Jonker’s opinion in Buck v. Gordon, in which he rebuked Michigan Attorney General Dana Nessel [Sue Ellen Browder, National Catholic Register] and on Fulton v. Philadelphia [Mark Rienzi](and mentions: New York Post, Kathryn Lopez/National Review)
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No, Judge Jonker didn’t undermine or attack Employment Division v. Smith, but his application isn’t just a one-off, either. We are so polarized that there are likely to be more Dana Nessels contemning religion in their campaigns, particularly where religions resist new sexual orthodoxies.
The decision is problematic. Are we now going to have judges parsing campaign speech of elected officials? That is a genie that needs to be put back in the bottle.
Michigan’s attorney general had every right to campaign on her views about those who would discriminate against SSM. Personally, I think she was over the top, but if she has a beef with religion, so be it. I do not approve of federal judges acting like campaign speech policemen. They don’t have the expertise or the authority.
I agree that it is problematic. Courts have been parsing campaign speech (and speech even more remote from eventual government action) for quite a long while, and the results have been the problems you describe and others too. For one thing, they incentivize litigants to search years’ worth of public discussion for the equivalent of thoughtless tweets, thus bringing to litigation the spirit of cancel culture.
[…] keeping track, this makes three pieces I’ve published in two days, counting yesterday’s Wall Street Journal piece, all related to sexual orientation and the law although unrelated […]
I share the discomfort of others with parsing every statement ever made by a politician.
Nevertheless, the method used by hyper-partisan AG Nessel to repeal a law she disliked (a collusive “settlement” with a convenient plaintiff) is repugnant to small-R republicanism as it has evolved in this country. The proper ways to repeal laws are through legislation (with or without the Governor’s cooperation), the State or Federal courts, or other methods set out in the State constitution (eg referenda).
Could a Federal Court invoke Article IV, Section 4, Clause 1 to “guarantee to every State … a Republican Form of Government” to set aside AG Nessel’s chicanery, and require her to get proper authority to modify the law?
[…] If you missed my Wall Street Journal piece on how the Michigan foster care decision isn’t really much of a victory for religious accommodation, Cato now has posted an unpaywalled version. Earlier discussion here. […]