May 24, 2019
You will know them by their fruits, Matthew 7:20 says. And in the case of a Michigan orchard farm, that seems especially true of the man picking the fight. Attorney Michael Bogren says he was just doing his job in court when he compared a Christian couple to the KKK for believing in natural marriage. But now that he’s up for a lifetime promotion, Senator Josh Hawley (R-Mo.) wants to know: Just how much of “that job” will he be bringing to the federal bench?
When Steve and Bridget Tennes took over Country Mill Orchard, the husband and wife team made one thing clear: they’d never shy away from their faith. Now, thanks to the city of East Lansing, they stand to lose a big chunk of business because of it. All it took was a simple Facebook post to turn the family’s word upside down. On their social media page, someone had asked the family what they thought about marriage. The owners of the farm answered honestly: it’s the sacred union of a man and woman.
Liberal officials were horrified. They banned the Tenneses from the local farmer’s market, where the couple had spent seven years. But as military veterans, Steve and Bridget weren’t about to let the city go without a fight. So they sued. As the case dragged on, the city’s attorney got more hostile. “The message isn’t that Catholics need not apply,” he told them, but that “discriminators need not apply.” Now, the same man spouting that intolerance – Michael Bogren – is on his way to a permanent seat on the court where the case is still being argued.
For the Trump administration, who’s rarely has a bad apple in the judicial bunch, Bogren’s nomination came as a surprise. As Senator Hawley told pastors at our Watchmen on the Wall conference Thursday, “I can’t think of another president in my lifetime who’s been as pro-life and as pro-religious freedom as President Trump has been -- [including] the judges he’s nominated to the bench.” But, he went on, “Having said that, it’s my job as a member of the Judiciary Committee to make sure that our judges who we’re confirming for the bench actually hold to the Constitution…”
It’s a job he took very seriously Wednesday, when he grilled Bogren over the Tennes’s case. At one point, Bogren tried to explain away his attack on religious liberty as just “represent[ing] clients. Nothing personal. But to Christians across this country, who’ve lost their share of freedom under activist judges, Hawley assured him: it’s very personal.
HAWLEY: “You compared, in your briefs, a Catholic family’s adherence to the teachings of their church to the activities of the KKK and the teachings of radical imams. Do you stand by those statements?”
BOGREN: “… I don’t mean to quibble, senator, but I was trying to make a point about what the next step would be and how one would have to -- not be able to draw a principled distinction.”
HAWLEY: “So you think those things are equivalent? You think that the Catholic family’s pointing to the teachings of their church is equivalent to a KKK member invoking Christianity?”
BOGREN: “I stand by those comparisons. From a legal perspective, there’s no distinction.”
Hawley was dumbfounded. This was Bogren’s opportunity to offer some sort of apology -- not just for his prejudiced defense, but for taking the case in the first place! As FRC’s Travis Weber pointed out on “Washington Watch,” attorneys in that situation always have a choice. If he had a problem with the city’s position, he could have withdrawn from the suit. Senator Hawley pressured Bogren because he needed to know if how he approached this case is how he would approach every case. “We need solid originalists on the bench,” Travis agreed, “textualists, who will look at the law and apply the law. We have to know they’re going to be rock solid and not swayed by public opinion.”
If Wednesday’s hearing was supposed to reassure Republicans, Bogren didn’t do himself any favors. This is a federal court, Hawley warned our pastors. “It’s a lifetime appointment. This is not about personality or anything like that. This is about the law… You know, the Supreme Court, in a very important case last year, said that government officials cannot treat Americans with sincere religious beliefs with disdain. They cannot treat you as second-class citizens… I mean, I can’t believe that someone like this would be on the bench -- which is why, if I have anything to say about it, he won’t be.”
It’s a moment, NRO’s Michael Dougherty pointed out, that some conservatives won’t forget. “Hawley demonstrated an understanding that is rare among Republicans,” Dougherty wrote. He turned the entire argument on its head by arguing that it’s not Christians who are “unqualified to hold a public trust” -- but the men and women who call their beliefs hateful.
“Hawley understands instinctively that Catholics and Evangelicals will lose their institutions -- their hospitals, colleges, and charities -- if they submit to the progressive pretense that their religion makes them indistinguishable from racist terrorists. Americans let the KKK march in their idiotic uniforms, but no one would tolerate them running a college, hospital, or home-school cooperative. Hawley’s willingness to pick a surprise fight will put other judicial nominees on notice.”
You can help. Contact your senators and those on the Senate Judiciary Committee and urge them to vote no on Michael Bogren.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.