Left-wing activists and the media in Wisconsin are smearing a state Supreme Court candidate for being on the board of a small Christian school and for old blog posts on cases about abortion and gay sex.
Brian Hagedorn, a current Wisconsin Court of Appeals judge and a former legal counsel for Gov. Scott Walker, said at the time he was considering a run for the top court that he “expected to be attacked here, because that’s what’s happening all across the country,” wrote Joy Pullmann, executive editor of the Federalist, in a column.
Hagedorn and his wife helped found a small Christian school that has a code forbidding students, parents and teachers from “participating in immoral sexual activity (defined as any form of touching or nudity for the purpose of evoking sexual arousal apart from the context of marriage between one man and one woman).”
The Associated Press, Wisconsin State Journal and Wisconsin Public Radio declared in headlines the school “bans” gays. But Pullmann points out that gay students who abstain from sexual behavior aren’t banned, and the code reflects 2,000 years of Christian teaching. If Hagedorn’s school is bigoted because of that standard, she wrote, then “all orthodox Christian, Islamic, and Jewish organizations, as well as many Buddhist and Hindu organizations, are centers of bigotry.”
Vice President Mike Pence’s wife, Karen Pence, was criticized recently by the left for teaching at a Christian school in Virginia with a similar code.
The Milwaukee Journal-Sentinel contacted the U.S. Department of Education’s Office for Civil Rights to ask about Hagedorn’s school and raised the prospect of “lawsuits alleging discrimination against the school’s officials or Hagedorn.”
Faithful Christian can’t be public official?
The media characterization of his writing also is wrong or misleading, Pullmann said. A ThinkProgress piece, for example, cites a blog post written by Hagedorn when he was in law school in 2005 that paraphrased former Supreme Court justice Antonin Scalia’s dissent in the landmark case on Texas sodomy laws.
Media reported Hagedorn “compared homosexuality to bestiality.” But his post, Pullmann writes, “simply notes the U.S. Constitution has nothing to say about any supposed rights to sex with anyone or anything, then essentially paraphrases Scalia’s dissent, which two other justices joined.”
“My job as a judge is to say what the law is and not what it should be,” Hagedorn said. “This is an effort to attack me for my faith and take this [campaign] in directions that are irrelevant to the job that I’m doing of applying the law faithfully.”
Hagedorn told Pullman the media “often can’t track the legal arguments.”
“The argument I was making was nothing other than what three Supreme Court justices made in that very case,” he said. “The Lawrence v. Texas decision’s logic was not strong. I am not myself interested in relitigating all those issues today, but that argument that was made was just tracking that Supreme Court case.”
Pullmann commented that the argument against Hagedorn “seems to be that no faithful religious believer can also be a good public official, in line with a crop of similar attacks on federal nominees.”
She pointed to attacks by prominent Democrats, including Sens. Dianne Feinstein, Cory Booker, Kamala Harris, Mazie Hirono and Bernie Sanders.
“How convenient for the minority of secularists to define their tribe as the only one eligible for rule,” Pullmann wrote. “And whatever happened to tolerance and pluralism, and not discriminating against people based on their identity?”
Hagedorn says his conservative judicial philosophy compels him to apply the laws impartially, regardless of his personal religious or political beliefs.
“Any judge who does not regularly issue a decision he does not agree with is not a good judge,” he said. “My job is not to decide whether I like the law or policy or not. We need to stop politicizing our courts and stop incorporating one’s own views into judicial decisionmaking.”
‘Wildly inappropriate’ questions
Earlier this month, Sen. Mike Lee, R-Utah, reprimanded Booker for subjecting a presidential nominee to questions about personal religious beliefs. Booker was questioning D.C. Circuit Court nominee Naomi Rao on whether she views gay relationships to be “immoral” during a Senate Judiciary Committee hearing.
“You can’t openly, publicly question a nominee about that nominee’s religious beliefs, about what he or she believes to be sinful conduct without subjecting that nominee to ridicule and simultaneously demeaning some of the fundamental tenets of our constitutional republic,” Lee said.
He said such a line of questioning is “wildly inappropriate.”
In 2017, Feinstein drew widespread criticism for probing the Catholic beliefs of appeals court nominee Amy Coney Barrett, who is high on President Trump’s list of possible U.S. Supreme Court nominees.
Feinstein told the judge her “dogma lives loudly within you.”
“I think whatever a religion is, it has its own dogma,” Feinstein said. “And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to the big issues that large numbers of people have fought for years in this country.”
See Feinstein confront Amy Coney Barrett:
Barrett, who clerked for Scalia, co-wrote a paper stating that when a judge’s morals conflict with the law, the judge should withdraw from the case.
But Feinstein drew the opposite conclusion from the paper, maintaining the law review article concluded “it may well be that a Catholic judge cannot be independent.”
“You have a long history of believing that your religious beliefs should prevail,” the senator claimed of the then-Notre Dame law professor.