Religious test for ACNA judicial nominee

 

Religious test for ACNA judicial nominee

Author: 

George Conger

An Episcopalian member of the US Senate grilled a nominee for the Federal Judiciary over his membership in an ACNA congregation, asking if his beliefs would prejudice his work as a judge.

In written questions submitted to Trevor McFadden, (pictured) Sen. Sheldon Whitehouse, D-R.I., asked the nominee his views on gay marriage, abortion and homosexuality, citing Mr. McFadden’s membership on the vestry of the Falls Church parish as an area of concern.

The Senator wrote:

"You are an elected member (until 2020) of the Falls Church Anglican, which broke away from the Episcopal Church largely due to the denomination’s consecration of an openly gay bishop. The Falls Church Anglican considers 'marriage to be a life-long union of husband and wife' intended for 'the procreation and nurture of godly children' and entailing 'God-given' 'roles of father and mother.' In 2015, the associate pastor of the Falls Church Anglican agreed that 'if the U.S. Supreme Court decision includes a redefinition of marriage, this will constitute an intrusion of the state on God’s institution of marriage ‘from the beginning’.' Do you understand the majority of the Supreme Court in Obergefell v. Hodges to have held that the right to marry is a fundamental right under the Due Process and Equal Protection Clauses of the Fourteenth Amendment and that same-sex couples may not be deprived of that right?”

Mr. McFadden responded: “yes”.

Senator Whitehorse asked: “Do you believe that the Supreme Court’s decision in Obergefell v. Hodges that the Fourteenth Amendment requires every state to perform and recognize marriages between individuals of the same sex 'constitute[d] an intrusion of the state on God’s institution of marriage ‘from the beginning’”?

Mr. McFadden responded that it would be “improper for me to state my personal opinions. If I am confirmed as a judge, I will faithfully apply the applicable Supreme Court and D.C. Circuit precedents, including Obergefell v. Hodges.”

The Senator asked:  “Obergefell is not a decision grounded in “natural law.” Should legal precedents that are, in your view, consistent with “natural law” receive greater weight than decisions that may be deemed inconsistent with natural law?”

Mr. McFadden replied: “As a district judge, it would be my duty to faithfully apply all applicable, binding precedents, regardless of whether they are grounded in “natural law.”

The Senator asked: “Do you agree with the analysis of the majority of the Supreme Court in Lawrence v. Texas that, under the U.S. Constitution, religious or moral beliefs cannot be the sole basis for the enactment and enforcement of criminal laws?”

To which Mr. McFadden responded: “It would be improper for me to state my personal opinions. If I am confirmed as a judge, I will faithfully apply the applicable Supreme Court and D.C. Circuit precedents, including Lawrence v. Texas.”

The Senator asked: “In your view, what limits (if any) are there on the government’s ability to intrude upon personal decisions regarding the creation of personal relationships, family formation and procreation?”

To which Mr. McFadden responded: “It would be improper for me to state my personal views about an issue that may come before me as a judge. If I am confirmed, I will consider the arguments of the parties before me and faithfully apply the applicable Supreme Court and D.C. Circuit precedents.”

The Senator asked: “Do you understand the holding of the majority of the Supreme Court in Roe v. Wade, that the constitutional right to privacy encompasses a woman’s decision whether or not to continue a pregnancy, is maintained by the Court’s current doctrine following Whole Woman's Health v. Hellerstedt?”

To which Mr. McFadden responded: “My understanding is that Whole Woman’s Health v. Hellerstedt did not purport to overrule Roe v. Wade.”

The Senator asked: “How do ideas about “God-given” “roles of father and mother” accord with the legal precedent established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that treating employees differently in the workplace based on whether they conform to sexual stereotypes is a form of sex discrimination prohibited by Title VII?”

To which Mr. McFadden responded: “It would be improper for me to state my personal views about an issue that may come before me as a judge. If I am confirmed, I will consider the arguments of the parties before me and faithfully apply the applicable Supreme Court and D.C. Circuit precedents.”

Mr. McFadden, who currently serves as deputy assistant attorney general at the Justice Department’s criminal division, spent two years as a police officer in the Washington suburb of Fairfax County before entering the legal field. He worked as an intern at the Virginia state prosecutor’s office in 2005 before joining the Justice Department in 2007 as counsel to the deputy attorney general. McFadden then worked as a federal prosecutor in Washington for five years before moving to private practice at the Washington firm Baker McKenzie.

A member of the Federalist Society since 2003, McFadden volunteered to serve on President Trump’s transition team as a “vetter.” Mr. McFadden told Sen. Dianne Feinstein, D-Calif., that his work was limited to reviewing “public-source information” about potential appointees to see if there was anything that might “disqualify them or reflect poorly on the president.”

On 30 Oct 2017 the senate approved his nomination to serve on the U.S. District Court for the District of Columbia by a vote of 84-10.

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