Conservatives Oppose the Nomination of Michael S. Bogren

Conservative Action Project — Friday, May 31, 2019

May 31, 2019
Washington, D.C.
Signatures updated: 6/3/19

Conservatives strongly believe in the Constitution’s guarantees, especially the First Amendment right to the free exercise of religion. This right encompasses not only the freedom to worship, but also the right to live consistent with one’s faith. That is why we are shocked and dismayed with the recent testimony of Michael S. Bogren, nominated to be United States District Judge for the Western District of Michigan on the recommendation of Michigan’s two Democratic senators.

As a practicing attorney, Bogren was hired to represent the City of East Lansing in a dispute with a local farmer, Steve Tennes. Tennes was barred from selling his wares at the city’s farmers market, because he refused to host same-sex marriages at his farm.

Bogren has made several statements that reveal he does not understand the First Amendment’s basic protections of religious liberty. For example, he professes an Obama-era “freedom of worship” understanding of free exercise when he says that “the fact that the plaintiff says, ‘My religion compels me,’ does not protect him. There’s a difference between belief and act.” [1]  Bogren also signed onto motions which characterized the Tennes family’s practice of their Catholic faith as “invidious discrimination against the LGBT community.”[2]

Equally troubling are the analogies Bogren drew between faithful Catholics and virulent racists. In particular, he directly compared Catholics honoring their faith and the Ku Klux Klan:

“The other side of that discriminatory coin is found on the website of the White Camelia Knights of the KKK… group states: ‘The Klan has always taken a strong stance against interracial marriage. What most people don’t understand is it’s against our Heavenly Father’s law.’ Again, an adherent of that particular brand of Christianity who ran a business similar to the plaintiffs’ business would not be able to invoke the free exercise clause to avoid the antidiscrimination provisions of Federal, State and local laws that apply to public accommodations if interracial couples were refused service.”[3]

Bogren also directly questioned the sincerity and consistency of the Tennes family’s faith, arguing: “Although plaintiffs rely on the teachings of the Roman Catholic Church to support their position on same-sex marriage, plaintiffs are rather selective about how they apply the tenets of the Church on other aspects of marriage when it comes to their own business.”[4] He repeated the charge later, noting that “plaintiffs selective incorporate the Roman Catholic tenets on marriage when it comes to their wedding business.”[5]

Bogren was given a chance to clarify these statements when asked about them during a hearing in the Senate Judiciary Committee on May 22, 2019.

Rather than defer to his role as the counsel of record in an ongoing case—in particular, a case that will be heard in the federal district where he is nominated as a judge—Bogren chose instead to reaffirm his position that the government can impose liberal beliefs on sexual orientation and gender on Christians.

When asked by Sen. Josh Hawley (R-Mo.) to clarify whether or not he saw “Catholic families, pointing to the teachings of their church, [as] equivalent to a KKK member invoking Christianity,” Bogren answered, “there is no distinction.”

Senator Hawley then asked Bogren to clarify his comments that the Tennes family are “selective” in how they apply the teachings of their faith. Bogren reiterated his view that they apply their faith selectively “at times.”

This reveals that Bogren has left legal analysis behind and believes that government entities are entitled to judge theological matters. Long ago, in Thomas v. Review Board, the Supreme Court held that it is not the role of the judiciary to determine issues of theological consistency. Bogren’s argument reveals religious bias lacking even the usual effort of a thin disguise.

We recognize and respect the importance of an attorney representing the interests of his client. Bogren could and should have declined to answer questions regarding ongoing litigation. Instead, he chose to double down on arguments which sharply narrow the First Amendment’s protections regarding religious liberty.

Bogren is nominated for a lifetime appointment. We believe that his suspect judicial philosophy as it relates to America’s First Freedom renders him unqualified for this position. We urge that his nomination be withdrawn.


The Honorable Edwin Meese III
Attorney General
President Ronald Reagan (1985-1988)
Alfred S. Regnery
Chairman, Conservative Action Project
Chairman, Law Enforcement Legal Defense Fund
The Honorable Tony Perkins
President, Family Research Council
President, Council for National Policy
The Honorable Jim DeMint
Member, South Carolina
United States Senate (2005-2013)
Kelly J. Shackelford, Esq.
President and CEO
First Liberty Institute
The Honorable T. Kenneth Cribb, Jr.
Chief Domestic Advisor
President Ronald Reagan (1987-1988)
David Bozell
President
ForAmerica
The Honorable Becky Norton Dunlop
White House Advisor
President Ronald Reagan (1981-1985)
Rachel Bovard
Policy Director
Senate Steering Committee (2014-2015)
Ed Corrigan
Vice Chairman, Conservative Action Project
Executive Director, Senate Steering Committee (2003-2012)
The Honorable Colin A. Hanna
President
Let Freedom Ring, Inc.
The Honorable J. Kenneth Blackwell
Chairman
Constitutional Congress, Inc.
Lt. Gen. William G. Boykin (Ret.)
Executive Vice President
Family Research Council
Tom McClusky
President
March for Life Action
Diana Banister
President and Partner
Shirley & Banister Public Affairs
William L. Walton
Chairman
CNP Action, Inc.
Noah Wall
Vice President of Advocacy
FreedomWorks
Penny Y. Nance
President & CEO
Concerned Women for America
L. Brent Bozell, III
Founder and President
Media Research Center
The Honorable Donald Hodel
Secretary of Energy and Secretary of Interior
President Ronald Reagan
Senator Jason Rapert
Arkansas Senate
President, National Association of Christian Lawmakers
The Honorable Gary L. Bauer
President
American Values
The Honorable Tom DeLay
Former Majority Leader
U.S. House of Representatives
Ambassador Henry F. Cooper
Former US Defense and Space Negotiator
Former SDI Director
Kay R. Daly
President
Coalition for a Fair Judiciary
Dr. Virginia Armstrong
National Chairman
Eagle Forum’s Court Watch
Jenna Ellis Rives
Constitutional Law Attorney
Conservative Commentator
Dr. Frank Wright
CEO
D. James Kennedy Ministries
Dr. Jerome R. Corsi
Founder and CEO
CorsiNation.com
Ron Robinson
President
Young America’s Foundation
Ron Pearson
Executive Director
Conservative Victory Fund
Randy M. Long
Founder
Long Business Advisors, LLC
Willes K. Lee
President
National Federation of Republican Assemblies
Seton Motley
President
Less Government
Randy Page
Chief of Staff
Bob Jones University
The Honorable George K. Rasley Jr.
Managing Editor
ConservativeHQ.com
Mark Meckler
President
Convention of States Action
Andresen Blom
President
Hawaiian Values
Barry Meguiar
President
Revival Outside the Walls
Chad Connelly
President
Faith Wins
William Shaker
CEO
Washington Marketing Group
Tim LeFever
Chairman
Capitol Resource Institute
Robert K. Fischer
Meeting Coordinator
Conservatives of Faith
Allen Roth
President
Secure America Now
Elaine Donnelly
President
Center for Military Readiness
Charles P. Noell III
President
Tradition, Family, Property, Inc.
Rebecca Hagelin
Columnist
The Washington Times
Paavo Ensio
Chairman
Universal Minerals Group
The Honorable Tim Echols
PSC Commissioner
State of Georgia
The Honorable James C. Miller III
Ralph Benko, Esq.
Political Columnist
Allen Hebert
Chairman
American-Chinese Fellowship of Houston
Peter Thomas
Chairman
The Conservative Caucus
Joan Lindsey
President
Lindsey Communications
Norm Singleton
President
Campaign for Liberty
Lewis K. Uhler
Founder and President
National Tax Limitation Committee
Benjamin R. Case
CEO
Focused on Fundraising. Inc
Amapola Hansberger
President
Legal Immigrants for America
Khadine Ritter
Chairman
Eagle Forum of Ohio
Tim Wildmon
President
American Family Association
The Honorable Mike Hill
Representative
Florida State House
Paul Gessing
President
Rio Grande Foundation
Rod D. Martin
Founder and CEO
The Martin Organization, Inc.
Sherri R. Martin
Executive Vice President
The Martin Organization, Inc.
Haley E. Martin
President
The Martin Foundation
Nicholas Stehle
Campaign for the American Future
Shawn A. Mitchell
Former National Chaplain
National Federation of Republican Assemblies (NFRA)
Jerry Melvin
Former Dean
Florida House of Representatives
James L. Martin
Founder/Chairman
60 Plus Association
Saulius “Saul” Anuzis
President
60 Plus Association
The Honorable Penny Pullen
President
Life Advocacy Resource Project
David N. Bossie
President
Citizens United
Melissa Ortiz
Visiting Fellow
Independent Women’s Forum
James C. Dobson Ph.D.
Founder & President
Dr. James Dobson Family Institute
Beverly Day

All organizations listed for IDENTIFICATION purposes only.


1. Beth LeBlanc, Banning farmer from EL market ‘clear retaliation against free speech,’ lawyer says, Lansing St. J.(Sept. 13, 2017) https://www.lansingstatejournal.com/story/news/local/2017/09/13/banning-farmer-el-market-clear-retaliation-against-free-speech-lawyer-says/653938001/
2. Country Mill Farms v. E. Lansing, Mot. to Dismiss, 2017 WL 10876808 (W.D. Mich. 2017).
3. Ibid.
4. Country Mill Farms v. E. Lansing, Response in Opposition to Plaintiffs’ Mot. For Summary Judgment (p. 16)
5. Id. at p. 27.

The Conservative Action Project (CAP) was founded in 2008 by many conservative leaders, with former Attorney General Edwin Meese III serving as Founding Chairman. The group works to facilitate conservative leaders working together on behalf of common goals. CAP routinely issues "Memos to the Movement" demonstrating consensus among conservatives on key issues.