Are people who still believe marriage ought to be the union of one man and one woman now disqualified from judicial office?
That seems to be the burning issue in Wisconsin’s latest Supreme Court election to take place April 2, between two Appeals Court judges, conservative Brian Hagedorn and left-leaning Lisa Neubauer. Controversies earlier in the election included Senate Democrats suggesting that judicial nominees who believe Catholic “dogma” or even belong to the Knights of Columbus are not suited for the federal bench. In the latest episode, on Feb. 21, the Realtors Association withdrew their support of Hagedorn because he sits on the board of The Augustine Academy, a Christian school that follows traditional Christian teaching, reserving sexual activity for marriage between one man and one woman.
A left-wing advocacy group supporting Neubauer exposed this as “evidence” that Hagedorn would not put aside his “homophobic” views as a judge. The implication is clear: Hagedorn’s religious beliefs somehow render him unfit for office.
Our culture has come a long way in such a short time. In Obergefell v. Hodges, the 2015 case that created a constitutional right to same-sex marriage, Justice Anthony Kennedy emphasized the constitutional protection of those who hold traditional religious views on human sexuality, noting that “religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
Justice Samuel Alito, writing in dissent, was not so sanguine. He predicted that “those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
So far, Alito’s warning looks prescient. The beliefs of traditional Christians, Jews, and Muslims are increasingly said to be “extreme” and “hateful” and offered as a reason to turn down judicial nominees like Amy Coney Barrett, Brian Buescher, and Gordon Giampietro — and now in Wisconsin, Brian Hagedorn.
Of course, voters can oppose a judicial candidate for whatever reason they want. The question is whether they should, and whether candidates and advocacy organizations ought to make an issue of an opponent’s religious views. It is my contention that, no matter one’s view on marriage and sexuality, it is a profound mistake to politicize religious views.
Consider the breadth of such a proscription. While polling shows a dramatic increase in the percentage of Americans who believe that same-sex marriage should be “valid,” the definition of marriage as a union of one man and one woman remains the teaching or consensus position of numerous denominations and religious traditions, including the Roman Catholic Church, the Missouri and Wisconsin Synods of the Lutheran Church, the Southern Baptist Convention, the United Methodist Church, orthodox Judaism, Islam, and most evangelical churches. While not all adherents to these faiths subscribe to this traditional understanding, many are unwilling to abruptly cast aside long-standing practice and belief.
In a nation founded on religious liberty, it would turn the American creed on its head to say that because of their beliefs, certain people are unfit for judicial office. Ironically, it would not line up with the liberality and respect for individual freedom that has supported civil rights and greater tolerance for gays and lesbians. In a country steeped, but not founded, in the Judeo-Christian tradition and where tens and millions of people still “cling to the old understanding,” it amounts to a call for kulturkampf.
None of this is redeemed by saying that Hagedorn is not being called out for his beliefs, but for acting on them. The Augustine Academy is a religious institution which, to borrow Kennedy’s words, is simply attempting to “teach the principles that are so fulfilling and so central to their lives and faiths.” Neither it nor Hagedorn are expressing hatred for anyone or calling for those who do not share their beliefs or follow their principles to be compelled to do so or to suffer any civil disability or sanction. As always, the public has the right to know that a judge will follow the law and not his or her religious or other strongly held beliefs. But Hagedorn has repeatedly said that he will do so. The fact that he has strongly held beliefs that he must hold apart from the law distinguishes himself from precisely no other judicial candidate.
It may be true, to paraphrase Pope Pius XII, that error has no rights. But people do. Tolerance requires learning to live with those with whom we disagree, often strongly. In a plural and diverse society, we must pick our battles carefully. Turning religious differences and the practices of religious organizations into political battles has a shameful and bloody history. Wisconsin voters should carefully assess the relative merits of candidates for their Supreme Court. But evaluating their religious beliefs and practices should not be part of that process.
Rick Esenberg (@RickEsenberg) is president and general counsel at the Wisconsin Institute for Law & Liberty.
