Supreme Court Short-Lister Bill Pryor Has Been Wrongly Criticized By The Right

COMMENTARY Courts

Supreme Court Short-Lister Bill Pryor Has Been Wrongly Criticized By The Right

Jan 19th, 2017 8 min read
COMMENTARY BY
John Malcolm

Vice President, Institute for Constitutional Government

John is the Vice President for the Institute for Constitutional Government.
Pryor has recently come under fire from some on the right for three judicial opinions that they perceive as supporting the LGBT agenda and being anti–religious freedom. iStock

Key Takeaways

Judge William Pryor Jr. of the Eleventh Circuit Court of Appeals has already come under attack.

His decisions that have come under fire were based on sound procedural grounds.

Pryor’s concurring opinion in Keeton clearly supports the tenets of religious liberty.

He hasn’t even been nominated, yet one of the judges rumored to be on Donald Trump’s short list for Supreme Court justice — Judge William Pryor Jr. of the Eleventh Circuit Court of Appeals — has already come under attack. The Left’s criticisms come as no surprise. After all, Pryor has criticized Roe v. Wade and Miranda v. Arizona.

But Pryor has recently come under fire from some on the right for three judicial opinions that they perceive as supporting the LGBT agenda and being anti–religious freedom.

This is a strange development, given that Judge Pryor has made his conservative views quite clear. He has spoken eloquently about moral duty, the rule of law, and the proper but limited role that religion plays in his fulfilling his duties as a judge. Liberals have criticized him for filing a brief, when he was Alabama’s attorney general, in support of the legality of Texas’s anti-sodomy law in Lawrence v. Texas (the Supreme Court struck down the law by a 6–3 vote). They have also pilloried him for rescheduling a family vacation with his two young daughters to Disney World to avoid an annual event known as “Gay Day.”

As a lower-federal-court judge, Pryor is required to follow Supreme Court precedent, even if he disagrees with the Supreme Court’s ruling. The outcomes this obligation produces may be undesirable. One may also disagree with the conclusions that were reached in these three cases, but they clearly reflect the work of an honest judge attempting to apply the law and precedent fairly, without regard to his personal views or any group’s agenda. While I respect many of his critics on the right, I believe their concerns are unwarranted and should not stand in the way of Pryor’s being nominated or confirmed. The following review of the judge’s “problematic” decisions explains why.

Glenn v. Brumby

In Glenn v. Brumby (2011), the plaintiff, a transsexual who was born a biological male, sued his former supervisor at the Georgia General Assembly’s Office of Legal Counsel for sex discrimination, in violation of the equal-protection clause of the 14th Amendment. The plaintiff, who presented and was hired as a male, was diagnosed with gender-identity disorder and decided to begin the transition process to become a woman. Upon informing his supervisor of this fact and stating that he was going to legally change his name and start coming to work dressed as a woman (a prerequisite to sex-reassignment surgery), he was immediately fired. The supervisor conceded that his decision to fire Glenn was based on “the sheer fact of the transition” and that he considered it “unsettling” and “unnatural” for Glenn to show up for work dressed in women’s clothing. The district-court judge ruled in the plaintiff’s favor, and the supervisor appealed.

Judge Pryor joined the opinion written by his colleague, Judge Rosemary Barkett, affirming the judgment. The opinion relied extensively on the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which held that anti-discrimination laws apply not just to discrimination on the basis of biological sex, but also to discrimination on the basis of gender stereotyping and failing to act and appear in conformity with the expectations defined by one’s gender at birth (the case involved a woman who was denied partnership in her firm because she used profanity and was considered too “macho” by some of her male colleagues).

The Eleventh Circuit acknowledged that, before Price Waterhouse, several courts had held that anti-discrimination laws did not afford protection to transgendered persons against sex discrimination. But it noted that since then, “federal courts have recognized with near-uniformity” that federal anti-discrimination laws “encompass both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.” (See here, here, here, and here.)

Some have argued that the Glenn case also involved the issue of whether Glenn, as a biological male, would be entitled to use the women’s bathroom (a highly contentious social issue soon to be argued before the Supreme Court). Yet the court made clear that this issue was not before it. The court stated that Glenn’s supervisor offered this argument for the first time as a conceivable explanation to justify his actions after the case had been filed. Moreover, it noted, the argument was highly implausible given that the office had only single-occupancy restrooms.

Keeton v. Anderson-Wiley

In Keeton v. Anderson-Wiley (2011), the plaintiff was enrolled as a student at Augusta State University, in Georgia, working toward a master’s degree in school counseling. She described herself as a Christian committed to a biblically based belief that homosexuality is both immoral and a voluntary choice.

After her first year, school officials asked her to participate in a remediation plan designed to address her views on homosexuality, which the school claimed violated the code of ethics of her intended profession. The plaintiff refused and filed suit, claiming that the school had violated her First Amendment rights to free speech and the free exercise of her religion. She also sought a preliminary injunction against the school.

Following an evidentiary hearing in which the plaintiff declined to testify, the district court denied her motion for injunctive relief. It concluded that she had not demonstrated a substantial likelihood of success on the merits, an irreparable injury, that the balance of harms weighed in her favor, or that an injunction would serve the public’s interest.

The Eleventh Circuit panel’s decision (once again written by Judge Barkett) unanimously affirmed the lower court’s denial of an injunction, holding that the plaintiff had not satisfied her burden on appeal of establishing that the district court had abused its discretion in denying injunctive relief. The court held that, at this preliminary stage, the plaintiff had failed to establish that the school had singled her out for disfavored treatment because of her views on homosexuality, rather than a desire to ensure that her views complied with the current ethical standards of her profession, regardless of her beliefs. The case was remanded to the district court for a trial on the merits.

Significantly, Judge Pryor wrote a separate concurring opinion. He stated that while the record was still sparse at this stage of the litigation, there was at least some evidence that the school intended to discriminate against the plaintiff because of her views on homosexuality. Moreover, he stated that his court had

 never ruled that a public university can discriminate against student speech based on the concern that the student might, in a variety of circumstances, express views at odds with the preferred viewpoints of the university. Our precedents roundly reject prior restraints in the public school setting.  

Pryor added:

 As the First Amendment protected the professionals who successfully advocated against the then-prevailing view of the psychiatric profession [that homosexuality was a mental disorder], so too does it protect Keeton should she decide to advocate that those professionals got it wrong.  

He further emphasized that the court had never held that any Supreme Court precedent would permit “a public university to punish a student’s expressions of opinion when the speech is not school-sponsored or does not suggest the school’s approval.” This view clearly supports the tenets of religious liberty.

Carver Middle School Gay–Straight Alliance v. School Board of Lake County

In Carver Middle School Gay–Straight Alliance v. School Board of Lake County (2016), Judge Pryor wrote the majority opinion, which addressed a purely procedural issue. A student (identified only as “H.F.”) applied to the school board to form a student club, the Gay–Straight Alliance, which was denied on the ground that the application had failed to identify an allowed purpose for the club. Rather than submit another application, the student sued, claiming that the school board’s actions violated the student’s rights under the Constitution and applicable federal law. The district court dismissed the case on the alternative grounds that the case was not ripe (because the student could have resubmitted an application stating an allowed purpose for the club) or moot (because the school year in which the application had been submitted had ended).

Judge Pryor wrote the unanimous opinion for the circuit court. He held that the case was ripe because the school board had issued a final and binding decision when it rejected the Alliance’s application to form a club, and that the case was not moot because the lower court would be able to award relief in the form of nominal damages if it found that a violation had occurred.

At no time did Pryor opine on the merits of the underlying claims. The court held only that the plaintiffs were entitled to their day in court, and remanded the case for further proceedings.

Conclusion

The job of a judge is to analyze laws faithfully, by paying close attention to their text and structure according to their original public meaning, and by applying the law to the facts of the case without any preconceived personal or political agenda to reach a particular outcome. Occasionally this forces good judges to reach outcomes they dislike on a personal level.

Nobody understood this better than the late Justice Antonin Scalia, a self-described “law-and-order guy” who often ruled in favor of criminal defendants. It led him to join a majority opinion striking down a criminal statute against flag burning, even though he personally hated the result.

In a speech at Chapman Law School in 2005, Scalia said: “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” And during a debate in 2012 with Justice Stephen Breyer, Justice Scalia said, “It is not my job to say what’s justice and what isn’t justice. My job is to interpret the law adopted by the peoples’ representatives as fairly as possible.”

Judge Pryor’s record demonstrates that, like Justice Scalia, he tries to apply the law in even-handed fashion and put his personal beliefs aside. To claim otherwise is — in the words of Scalia — “pure applesauce.”
 

This piece originally appeared in National Review

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