Judge who suspended abortion pill failed to disclose interviews that discussed social issues

By Andrew Kaczynski and Em Steck, CNN

The federal district judge who first suspended the US Food and Drug Administration’s approval of the so-called abortion pill mifepristone failed to disclose during his Senate confirmation process two interviews on Christian talk radio where he discussed social issues such as contraception and gay rights.

In undisclosed radio interviews, Matthew Kacsmaryk referred to being gay as “a lifestyle” and expressed concerns that new norms for “people who experience same-sex attraction” would lead to clashes with religious institutions, calling it the latest in a change in sexual norms that began with “no-fault divorce” and “permissive policies on contraception.”

Kacsmaryk, a Trump-appointed federal district judge, made the unreported comments in two appearances in 2014 on Chosen Generation, a radio show that offers “a biblical constitutional worldview.” At the time, Kacsmaryk was deputy general counsel at First Liberty Institute, a nonprofit religious liberty advocacy group known before 2016 as the Liberty Institute, and was brought on to the radio show to discuss “the homosexual agenda” to silence churches and religious liberty, according to the show’s host.

Federal judicial nominees are required to submit detailed paperwork to the Senate Judiciary Committee ahead of their confirmation process, including copies of nearly everything they have ever written or said in public, in order for the committee to evaluate a nominee’s qualifications and personal opinions. Neither interview is listed in the paperwork Kacsmaryk provided to the Senate during his judicial nomination process, which first began in 2017.

The radio interviews were not included in the 22 media works Kacsmaryk disclosed, which included three radio appearances and 19 written pieces.

A spokesperson for Democratic Sen. Dick Durbin, the chair of the Senate Judiciary Committee, told CNN the interviews weren’t in their archived files from Kacsmaryk’s confirmation, which included all paperwork submitted for his nomination.

In a statement sent to CNN, Kacsmaryk said he did not locate the interview when searching for media to disclose and he did not recall the interview.

“I used the DOJ-OLP manual to run searches for all media but did not locate this interview and did not recall this event, which involved a call-in to a local radio show,” he told CNN. “After listening to the audio file supplied by CNN, I agree that the content is equivalent to the legal analysis appearing throughout my SJQ and discussed extensively during my Senate confirmation hearing. Additionally, the transcript supplied by CNN appears to track with the audio and accurately recounts my responses during the phone call—when quoted in full.”

The Washington Post reported last week that Kacsmaryk removed his name in 2017 from a pending law review article criticizing protections for transgender people and those seeking abortions during his judicial nomination process, a highly unusual move for a judicial nominee.

Kacsmaryk did not respond to the Post’s request for comment, but a spokesperson for his old employer First Liberty claimed Kacsmaryk’s name had been a “placeholder” on the article and that Kacsmaryk had not provided a “substantive contribution,” despite the final version being almost identical to the one submitted under Kacsmaryk’s name according to the Post.

Kacsmaryk later submitted supplemental material in 2019 to the committee to reflect interviews and events he participated since in 2017, but neither of the 2014 radio interviews were included.

Democratic senators grilled Kacsmaryk on his positions on abortion and LGBTQ rights during both his nomination hearing and in written questions in 2017.

While Kacsmaryk worked at First Liberty, one of his colleagues, general counsel Jeff Mateer, was also nominated for a federal judgeship. But Mateer came under scrutiny in 2017 for comments unearthed during his confirmation process in which he once compared the US to Nazi Germany on Chosen Generation — the same radio program Kacsmaryk appeared on and whose interviews he did not disclose.

Mateer’s nomination was later rescinded; Kacsmaryk was later confirmed in 2019.

The interviews were shared by Kacsmaryk’s employer, the Liberty Institute, at the time on social media. A guest from First Liberty appeared once a week, according to the show’s radio host in the broadcast and archives available online.

In one interview from February 2014, in response to a question on the “homosexual agenda,” Kacsmaryk expressed concerns that new social norms surrounding “same-sex marriage” and “people who experience same-sex attraction” would lead to clashes with religious institutions.

“I just want to make very clear, people who experience a same-sex attraction are not responsible individually or solely for the atmosphere of the sexual revolution,” Kacsmaryk said. “You know it. It’s a long time coming. It came after no-fault divorce. It came after we implemented very permissive policies on contraception. The sexual revolution has gone through several phases. We just happen to be at the phase now where same sex marriages is at the fore.”

“But through that progression or regression, I think you can see five areas where there will be a clash of absolutes between the traditional Judeo-Christian understanding of marriage and the revisionist, redefined vision of marriage that you saw in last term’s Supreme Court opinions,” he said before outlining those areas as over tax exempt statuses, adoption services, federal government programs, and discrimination at universities.

He appeared on the program to discuss the federal government’s view of same-sex marriage and opponents of it following the court ruling striking down the Defense of Marriage Act. The host suggested opponents of same-sex marriage could be viewed as “hostile” enemies of the government in line with al-Qaeda, which Kacsmaryk agreed with.

“Yeah, and I can speak from immediate firsthand experience,” he said, citing his work formerly in the Justice Department. “That is very much in vogue now in the federal government to characterize opposition to same sex marriage and related issues as irrational prejudice at best and a potential hate crime at worse,” he continued.

“It really has infused the entire federal service top to bottom as the administration has declared that they will join this culture war, that there’s one side that is destined to win and that you’re on the wrong side of history in the federal government if you are on an opposing side,” he added.

Kacsmaryk also appeared on the program in July 2014 to discuss an executive order signed by then-President Barack Obama that banned federal contractors from discriminating against employees on the basis of sexual orientation or gender identity which did not exempt faith-based groups.

Kacsmaryk linked changes in Democrats’ views on the issue of religious freedom to the “emergence of this very powerful constituency in the LGBT community,” which he said the Obama administration made campaign promises to fulfill. Kacsmaryk said religious organizations entering into contracts with the federal government would have risk under the executive order and face a “real burden” for dissenting from “the new sexual orthodoxy” on gay rights.

The new rules, Kacsmaryk suggested, were poorly written and didn’t differentiate between gay people who lived “celibate” lives and those who made being gay “a lifestyle,” in a discussion of how religious groups would comply with the new rules.

“If you look at the letter that was issued by the United States Conference of Catholic Bishops, they point out that the category sexual orientation is problematic because it’s not defined,” he said. “Most Abrahamic faith traditions will draw a distinction between someone who experiences the same sex attraction but is willing to live celibate and somebody who experiences the same sex attraction and makes it a lifestyle and seeks to sexualize that lifestyle. Those are two different categories that most Abrahamic faith traditions recognize.”

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