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Senator blasts Trump's Michigan judge nominee, says he compared Catholics to KKK

Todd Spangler
Detroit Free Press

WASHINGTON — A Michigan lawyer nominated by President Donald Trump to be a federal judge was sharply berated by a Republican senator who said Wednesday the lawyer compared a Catholic family's beliefs to those of the Ku Klux Klan in a legal brief.

Making sharp, accusatory gestures and barking his questions at lawyer Michael Bogren, freshman U.S. Sen. Josh Hawley of Missouri accused the nominee of going too far in a case over whether the city of East Lansing could bar a family from participating in a farmer's market because it didn't want to allow same-sex marriages on its property.

Hawley said Bogren, nominated to the U.S. District Court in west Michigan, engaged in "impermissible hostility" toward religious views while representing East Lansing in court.

"You think those things are equivalent. You think that the Catholic family's pointing out the teachings of their church is equivalent to a KKK member invoking Christianity (to justify discrimination)," Hawley said, asking Bogren if he would denounce his earlier written remarks.

Bogren, who appeared before the Senate Judiciary Committee on Wednesday for a hearing on his nomination and is expected to be confirmed, declined to do so. 

After throwing his pencil aside in apparent disgust, Hawley added, "The fact that you stand by these comments is extraordinary to me."

Over Hawley's interruptions, Bogren tried to explain that, as a lawyer in a still-pending case, he was attempting to be a strong advocate for his client.

He said he was arguing in his briefs that if religious beliefs can be used to justify discrimination against a same-sex couple, they can also be used to discriminate against others because of their race or gender.

"From a legal perspective, senator, there is no difference," he told Hawley, who repeatedly invoked a Supreme Court decision that turned back a Colorado commission's finding against a baker who refused to make a cake for a same-sex couple, saying that that the commission had been hostile to his views.

That Supreme Court case, however, did not rule that commercial enterprises can discriminate against gay couples based on religious beliefs, only that it was wrong for the commission to appear openly hostile to the baker's sincerely held religious beliefs in making its decision.

The Michigan case — in which Bogren served as the city's lawyer — stems from East Lansing's earlier decision under a local statute to bar Country Mill Farms from participating in a local farmer's market because of a first-in-the-nation ordinance that does not permit discrimination based on sexual orientation.

East Lansing denied Country Mill Farms owner Steve Tennes a vendor's license in May 2017 after a Facebook post the previous year detailed Country Mill's refusal to hold same-sex marriages on its grounds, though it allowed other marriages.

Tennes sued in federal court and a decision is pending. Country Mill has received vendor's licenses the last two years under a preliminary injunction entered on Country Mill's behalf by a federal magistrate.

In a 2017 motion to dismiss Tennes' claim against the city, Bogren wrote, "The fact (that) this discriminatory conduct is based on sincerely held religious beliefs does not insulate that conduct from anti-discrimination laws."

Later in the brief he noted that despite the fact that the Nation of Islam and the KKK both have tenets against interracial marriage, "an adherent of (those faiths who) ran a business similar to the plaintiffs’ business would not be able to ... avoid the anti-discrimination provisions of federal, state and local laws that apply to public accommodations if interracial couples were refused service."

"There can be no constitutionally sound argument that sincerely held religious beliefs would permit a secular business to avoid the prohibitions against racial discrimination or gender discrimination found in federal, state and local laws," he added in the brief.

Read more:

Supreme Court rules on narrow grounds for baker who refused to create same-sex couple's wedding cake

Federal judge to decide if Country Mill can return to East Lansing Farmers Market

Contact Todd Spangler attspangler@freepress.com. Follow him on Twitter@tsspangler. Read more onMichigan politics and sign up for ourelections newsletter.