Religious Liberty Attorney Confirmed to Federal Bench

Lawyer who helped Hobby Lobby win before the Supreme Court will serve on Fifth Circuit Court of Appeals

Senate Majority Leader Mitch McConnell / Getty Images
April 25, 2018

Religious liberty advocates received a boost in federal courts after the Senate confirmed one of the nation's leading First Amendment attorneys to the Fifth Circuit Court of Appeals.

The Senate voted to approve President Trump's nominee, Kyle Duncan, to Louisiana's Fifth Circuit Court of Appeals on Tuesday. Duncan is the former general counsel at the Becket Fund for Religious Liberty, a nonprofit law firm that "exists to defend the free exercise of all faiths, from Anglican to Zoroastrian," as it says on its website. The group has been involved in some of the most high profile religious liberty cases in the nation in recent years, helping nuns at the Little Sisters of the Poor and religious business owners at Hobby Lobby resist the Obama administration's contraception and abortifacient mandate. It also successfully defended the rights of Muslim prisoners and Sikh soldiers to abide by their religious teachings. Duncan joined the firm in 2012 after serving as appellate chief for the office of the Louisiana attorney general and participated in the Hobby Lobby case.

Becket president Mark Rienzi praised his former colleague on his confirmation. Rienzi said Duncan was a talented attorney and stalwart defender of the Constitution. He said religious liberty attorneys often find themselves facing strict hurdles to federal service, dubbing it the "stained glass ceiling," but said Duncan's two-year tenure at Becket would benefit Americans going through the federal judicial system.

"Not only has our country gained a great jurist, but Kyle's confirmation is proof positive that defending religious liberty for people of all faiths is a core part of our country's long tradition of public service," Rienzi said in a statement. "Kyle was a steadfast defender of religious liberty for people of all faiths and was known for his intelligence and evenhandedness. His generosity and respect for others has made him a great advocate and will make him a fair and respected judge."

Liberal interest groups sought to block the nomination. Planned Parenthood's political arm called him an "extreme ideologue" for his religious liberty work, saying in a tweet that he "aggressively fought to set back LGBTQ rights, voting rights, immigrant rights, and reproductive freedom." Gay activists also opposed the nomination.

"Kyle Duncan stands out for his long career fighting to limit the legal protections for LGBTQ Americans," Human Rights Campaign spokesman David Stacy said in a release. "The Senate must not give this dangerous extremist a lifetime appointment to the federal bench."

Duncan's nomination won the backing of conservative activist groups. The Judicial Crisis Network launched a six-figure ad buy to rally the public behind his confirmation in red states with Democratic senators. The ad featured Louisiana attorney general Jeff Landry extolling his experience in the Hobby Lobby case, his expertise in constitutional law, and his "Louisiana values." JCN chief counsel and policy director Carrie Severino, a former clerk for Supreme Court justice Clarence Thomas, called Duncan "one of the best lawyers of his generation" but lamented the party line vote in the Senate.

"President Trump selected one of the best lawyers of his generation, someone who has served and will continue to serve Louisiana with distinction. He will uphold the Constitution and apply the law fairly as it is written," Severino said in a release. "It is sad that only one Democrat was willing to break ranks and vote for such an impressive nominee; a sign of how extreme Dems have become, and another reason we need more conservative Republicans in the Senate."

West Virginia senator Joe Manchin, who is facing a tough reelection campaign in November, was the only Democrat to break ranks and support the nomination. Duncan was confirmed 50-47.