[Congressional Record Volume 165, Number 102 (Tuesday, June 18, 2019)]
[Senate]
[Pages S3647-S3649]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NOMINATION OF MATTHEW J. KACSMARYK

  Mrs. FEINSTEIN. Madam President, I rise today in opposition to the 
nomination of Matthew Kacsmaryk to the United States District Court for 
the Northern District of Texas.
  June is the month that we recognize as Pride Month to celebrate the 
lesbian and gay community and to acknowledge that individuals should 
not be discriminated against on the basis of their sexual orientation; 
yet, today we are voting on a nominee, Mr. Kacsmaryk, whose career has 
been defined by opposition to the rights of LGBT Americans. He has 
argued against marriage equality and defended a company that refused to 
provide service to a same-sex couple, simply based on their sexual 
orientation.
  It is disappointing that the Senate is moving forward on his 
nomination, and even more disappointing that the majority has scheduled 
this vote during Pride Month.
  Mr. Kacsmaryk 's long record of opposing civil rights protections for 
LGBT Americans should disqualify him from service on the bench. They 
demonstrate that he puts his personal opinion above Supreme Court 
precedent.
  Specifically, I want to highlight some key positions in his record.
  In 2015, Mr. Kashmir made comments deeply critical of United States 
v. Windsor, the case that struck down the Defense of Marriage Act, or 
DOMA. Mr. Kacsmaryk claimed that the Obama administration, which 
refused to defend DOMA, had ``effectively collaborated with the 
adversary.'' Mr. Kacsmaryk's comments make clear that he believes those 
fighting for the right of LGBT American, including the right to marry, 
are adversaries. Someone making a statement like this should quite 
simply not be a Federal judge.
  He likewise claimed in a radio interview that efforts to achieve 
marriage equality were marked by ``lawlessness,'' adding that the 
Justice Department's refusal to defend DOMA was an ``abuse of rule of 
law principles.''

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  Also in 2015, Mr. Kacsmaryk submitted a brief in Obergefell v. 
Hodges, the landmark Supreme Court case that guaranteed marriage 
equality.
  Mr. Kacsmaryk urged the Court to deny that the 14th Amendment 
extended to the right of same-sex couples to marry. He argued that 
finding a nationwide right to marriage equality would violate the free 
speech rights of those who oppose same-sex marriage on religious 
grounds, and he claimed that allowing gay couples to marry would 
``silence religious dissenters who continue to hold to their millennia-
old definition of marriage.'' The Supreme Court disagreed.
  In 2016, Mr. Kacsmaryk continued his efforts opposing the civil 
rights of LGBT individuals by defending a company that refused to sell 
a wedding cake to a same-sex couple, simply because they were gay.
  Mr. Kacsmaryk denied that the business had refused to sell the cake 
because of the customers' sexual orientation. Instead, he claimed that 
the law prohibiting discrimination against LGBT individuals ``forc[ed] 
business owners to publicly facilitate ceremonies, rituals, and other 
expressive events with which they have fundamental'' disagreements.
  Businesses should not be permitted to discriminate against customers 
because of their sexual orientation, but in Matthew Kacsmaryk's 
opinion, it is completely acceptable to do just that.
  Throughout his career, Mr. Kacsmaryk has taken particularly offensive 
positions on the rights of transgender Americans, including transgender 
youth.
  He has argued that being transgender is a ``delusion.''
  He also signed onto a letter claiming that transgender people are 
suffering from a ``psychological condition in need of care,'' and are 
``not a category of persons in need of special legal protection.''
  Taken together, these positions show that Mr. Kacsmaryk has strong 
personal beliefs and is opposed to defending civil rights of gay and 
lesbian individuals.
  Further, when asked during his hearing whether he would recuse 
himself from cases involving LGBT individuals, Mr. Kacsmaryk refused. 
When asked in written questions how his record did not create an 
appearance of impropriety when it comes to deciding cases on gay 
rights, Mr. Kacsmaryk simply cited the Federal recusal statute, 
refusing to answer the question directly.
  In addition, Mr. Kacsmaryk has also worked to undermine women's 
access to reproductive healthcare.
  For example, he argued that the Affordable Care Act's contraceptive 
coverage requirement was unconstitutional, and then later claimed that 
the Obama administration's religious accommodation to that requirement 
was likewise unconstitutional.
  Without any evidence, Mr. Kacsmaryk accused the Obama administration 
of treating religious protections ``as a secondary consideration.'' 
With respect to the accommodation, which required nonprofit 
organizations to submit a one-page form to their insurer noting their 
objections, Mr. Kacsmaryk claimed the government was ``forc[ing] 
religious objectors to provide material aid to those who would commit 
the ultimately wrongful act'' of providing contraceptives.
  He also argued that a Washington State statute requiring all 
pharmacies to stock emergency contraceptives violated the rights of 
religious pharmacists. The statute permitted individual pharmacists to 
decline to fill prescriptions that ran contrary to their religious 
beliefs.
  But this was not enough for Mr. Kacsmaryk, who argued that the 
pharmacies themselves should be exempt from the statute. He also 
claimed that in seeking to provide contraception to women, Washington 
had ``radically depart[ed] from the nationwide consensus protecting 
conscience rights'' for health care professionals.
  The Supreme Court declined to hear the case.
  Given the positions he has taken in litigation and the inflammatory 
comments he has made in his personal capacity, I am concerned Mr. 
Kacsmaryk will not bring the temperament needed to demonstrate respect 
for all litigants that we expect from all Federal judges.
  I am voting against Mr. Kacsmaryk because I believe his record shows 
he is far outside the legal mainstream, and I urge my colleagues to do 
the same.
  Ms. HIRONO. Madam President, this month, many of us are celebrating 
Pride Month and reaffirming the rights and freedoms of the LGBTQ 
community. We also celebrated the fight for equal rights for women with 
the 100th anniversary of the passage and ratification of the 19th 
Amendment, which gave women the right to vote.
  But instead of celebrating these rights and freedoms, here is what 
Senate Republicans have in store for us. This week, they will confirm a 
Federal judge to a lifetime appointment who has devoted his career to 
advocating against the rights of LGBTQ people and women under the guise 
of religious liberty.
  Through his actions as a lawyer and private citizen, Matthew 
Kacsmaryk, the nominee for the Northern District of Texas, has made his 
hostility towards LGBTQ individuals, marriage equality, and 
reproductive rights clear.
  As deputy general counsel for the First Liberty Institute, Kacsmaryk 
urged the Supreme Court in Obergefell v. Hodges to rule that there is 
no nationwide right to same-sex marriage. After the Supreme Court 
disagreed with him, Kacsmaryk wrote an article criticizing not only 
Obergefell, but also the Court's decision in Roe v. Wade. He argued 
that the fight for marriage equality and reproductive rights were `` 
`radical' . . . demands'' of the ``Sexual Revolution.'' In his view, 
this Sexual Revolution ``sought public affirmation of the lie that the 
human person is an autonomous blob of Silly Putty unconstrained by 
nature or biology, and that marriage, sexuality, gender identity, and 
even the unborn child must yield to the erotic desires of liberated 
adults.''
  As a lawyer, Kacsmaryk advocated for employers who objected to 
providing contraceptive coverage as part of the healthcare required 
under the Affordable Care Act on religious grounds. Outside of the 
courtroom, he continued his advocacy against reproductive rights. In a 
2016 interview, he complained about ``imposition of a secular judgment 
on an essentially sacred question'' in the contraceptive mandate cases. 
He pointed to the First Amendment concerns of religious actors while 
failing to mention that the use of contraception is constitutionally 
protected.
  Kacsmaryk also urged the Supreme Court to allow a Virginia school 
board to require students to use the restroom corresponding to their 
``biological gender'' and a State labor and industry board in Oregon to 
let a bakery refuse to make same-sex wedding cakes. It is no wonder 
that more than 200 groups oppose his nomination, including Lambda Legal 
and 74 other LGBT and allied groups, the National Women's Law Center, 
and AFL-CIO.
  Earlier this year, I entered a letter into the record from about 300 
parents of transgender children who opposed Kacsmaryk's nomination 
``because of his demeaning attacks on transgender children and 
adults.'' In their letter, these parents pointed to Mr. Kacsmaryk's 
efforts to ``repeatedly promote [ ] fringe, junk science about 
transgender people, claiming that gender identity doesn't exist and 
that being transgender is a `delusion.' '' They explain why his actions 
are so concerning and why his nomination makes them fear for their 
children. They wrote: ``Kacsmaryk's words are deeply offensive and 
harmful. . . . Our children are not a delusion, and neither is our love 
and support for them. We believe our children are miracles, like every 
child.''
  Despite Kacsmaryk's offensive statements and extensive record against 
the LGBT community, he is being rushed to confirmation during Pride 
Month because Majority Leader McConnell and Donald Trump are intent on 
packing the courts with deeply partisan judges with extreme ideological 
agendas.
  While our friends in the House have been busy passing bill after bill 
to protect women from violence, reduce senseless gun violence, and 
ensure that all Americans have access to affordable healthcare, Senate 
Republicans have ignored these bipartisan bills and maintained their 
single-minded focus on confirming extreme judges. That is because 
Senate Republicans are trying to accomplish extreme, conservative 
outcomes through the courts that they

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been unable to achieve through legislation. As Majority Leader 
McConnell previously explained, legislation can be repealed, but 
``[w]hat can't be undone is a lifetime appointment.''
  In the past, this lifetime appointment was viewed as an important 
protection to ensure courts remained independent and fair minded. Now, 
it is being weaponized as a tool to enforce extreme, conservative 
policies through the confirmation of deeply partisan and ideologically 
driven judicial nominees.
  In the past 2-and-a-half years, we have seen why it is so critical to 
have fair and independent courts. As Senate Republicans race to pack 
the courts with more and more partisan judges with extreme ideologies, 
the integrity and independence of the Federal judiciary is at stake.
  Americans must be able to trust that courts act fairly and 
impartially to protect the rights of all Americans. That is why I will 
vote against Matthew Kacsmaryk's nomination today.

                          ____________________