- The Washington Times
Tuesday, January 17, 2023


We’ve been highly critical of federal judges appointed by Democratic presidents when they indefensibly ignore the rule of law or blatantly disregard clear legislative intent in favor of their own political preferences in their rulings in divisive cases.

Those rulings typically come down in favor of the liberal (aka “progressive”) side of a given case, as we saw in the execrable Dec. 16 decision from the 2nd Circuit Court of Appeals in a Connecticut case involving transgender faux “females” (aka biological males) unfairly being allowed to compete against biological females in interscholastic athletics — and, not surprisingly, more often than not beating them.

The ruling against the young women by the three-judge panel — made up by two judges appointed by President Barack Obama and a third picked by President Biden, both Democrats — was wrong on many levels, and we said so here.

So it’s only fair that we also commend a federal judge appointed by a Democratic president when he or she gets a ruling right on the law and in favor of fairness and common sense (even if he or she might have personally preferred to rule otherwise).

Such was the case on Jan. 12 when a federal court in Oregon upheld a Title IX exception that permits religiously affiliated colleges to receive federal funds even if their traditional theological beliefs regarding sexual orientation, gender identity and marriage are viewed by the left as discriminatory.

Some 40 LGBTQ individuals filed a lawsuit in 2021 against the Department of Education, challenging the exception in Title IX that allows religion-based colleges to seek exemptions from the law’s ban on sex-based discrimination.

The plaintiffs argued that the exemption violated the students’ equal protection rights under the Constitution in treating them differently because of their sex, sexual orientation or gender identity.

Judge Ann Aiken of U.S. District Court for the District of Oregon — a 1997 appointee of President Bill Clinton — held that the exemption is “one narrow exception” to Title IX and that it was intended by the lawmakers who enacted it back in 1972 to protect religiously affiliated institutions from interference with their beliefs that might be in conflict with the statute’s regulations.

“Exempting religiously controlled educational institutions from Title IX — and only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organization — is substantially related to the government’s objective of accommodating religious exercise,” Judge Aiken held in her 40-page ruling in Elizabeth Hunter, et al. v. U.S. Department of Education, et al., and Council for Christian Colleges & Universities, et al.

We don’t know whether the judge agrees with her ruling in terms of her public policy preferences, but that doesn’t — and shouldn’t — matter because that ruling is clearly the correct one in terms of the law and the Constitution.

Contrast that with the dissenters in the Dec. 30 ruling of the 11th U.S. Circuit Court of Appeals in the case of Adams v. the School Board of St. Johns County, Florida. The ruling rightly upheld a Florida high school’s policy of barring transgender students from using restrooms that correspond to their chosen gender identities, as opposed to their biological sex.

The 7-4 decision held that the St. Johns County school board did not violate either the Constitution or federal civil rights law by requiring students to use restrooms that comport with their anatomy.

As Reuters noted in its report on the decision: “All seven judges in the Atlanta-based appeals court majority were appointed by Republican presidents, including six by Donald Trump, while the four dissenting judges were Democratic appointees.”

Three of those four were appointees of Mr. Obama. The fourth was named by Mr. Clinton.

At the risk of belaboring the point, the Dec. 30 decision overturned a 2-1 ruling from July 2021 in favor of the transgender plaintiff. The two judges in that majority were appointees of Mr. Obama, and the dissent was written by a judge nominated by President George W. Bush, a Republican.

We’ve said it before, but we’ll say it again: Elections — in this case, for president — have consequences for our polity, and nowhere is that more evident, and in all too many cases more problematic, than in the selection of judges.

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