A group of conservative organizations are opposing one of President Joe Biden’s judicial nominees, calling her a threat to religious liberty based on arguments she made as a lawyer.
Loren AliKhan, a nominee for United States District Judge for the District of Columbia, represented D.C. Mayor Muriel Bowser before the D.C. district court in 2020, defending COVID-19 lockdown orders that prohibited churches from meeting, even when socially-distanced and wearing masks outdoors, while allowing large protests to continue in the wake of George Floyd’s death. Citing her “remarkably long record of advocacy against religious freedom” as a lawyer, over a dozen conservative groups, led by First Liberty Institute, opposed AliKhan in a Wednesday letter to the Senate Judiciary Committee.
“While we recognize all attorneys must represent the best interest of their clients, each attorney is at liberty to determine which arguments to use,” the letter states. “The courts have continuously rejected her discriminative arguments against people of faith and their houses of worship, and faith-based organizations.”
In the case defending D.C. lockdown orders, the letter notes she “chose not to bring in a medical expert to support her claims, instead she brought in a Ph.D. in Poli-Science” who “asserted that the risk of spreading Covid- 19 is higher for events where people are standing (for a church service) than where they are moving (for a protest).”
Republican Missouri Sen. Josh Hawley questioned AliKhan on this argument during her confirmation hearing in June, citing it as his reason for opposing her nomination.
Senator @HawleyMO: "Do you think it's wrong to discriminate on the basis of religious faith?"
Biden’s district judge nominee for D.C Loren AliKhan: "Absolutely."
Senator Hawley: "Then why did you argue that religious services and religious people pose a greater risk of… pic.twitter.com/lqMPt3Q8x4
— Carrie Severino (@JCNSeverino) June 7, 2023
“As a litigator, Loren AliKhan repeatedly took extreme positions in opposition to the First Amendment’s [protections] for religious organizations, houses of worship, and citizens,” said Hiram Sasser, executive general counsel for First Liberty, in a statement. “She poses a grave threat to the religious liberty rights of all Americans. The Senate should reject her nomination.”
In the Supreme Court’s 2012 religious freedom case, Hosanna-Tabor v. Equal Employment Opportunity Commission, AliKhan argued against the ministerial exemption, which allows churches to oversee internal affairs without government interference. The letter notes the Supreme Court rejected her position as “hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.”
In 2020, the D.C. Court of Appeals rejected her arguments backing the D.C. Office of Tax and Revenue’s decision to deny a tax exemption to a Sikh temple as “violating the First Amendment,” the letter notes.
She also supported “a nationwide injunction asking HHS to block regulations allowing religious and moral exemptions to the contraceptive mandate” in a 2018 amicus brief, according to the letter.
The Senate Judiciary Committee is slated to consider AliKhan on Thursday.
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