Judge holds up ‘hot bench’ for religious freedom rulings

Judge Holden is one of two judges at the U.S. Court of Appeals for the Ninth Circuit, which hears religious freedom cases. 

The other judge is Neil Gorsuch, who was nominated to the Supreme Court by President Donald Trump in April.

Judge Holden has argued for a broad interpretation of the Religious Freedom Restoration Act and is known for her strong views on religious freedom. 

On Thursday, she wrote an opinion for the U:P.

that defended the constitutionality of the Trump administration’s travel ban on refugees and nationals of seven Muslim-majority countries, including Iraq, Syria, Sudan, Iran, Libya, Somalia and Yemen. 

“The court is not bound by a narrow construction of the law to support its view that it does not need to resolve the merits of these cases,” Holden wrote. 

But she acknowledged that “the court cannot make such sweeping conclusions without first holding a hearing, and it must be careful to avoid creating a new test for whether the law is unconstitutionally vague or inconsistent with the First Amendment.” 

She also criticized the administration for using a series of “hot” cases that are often the first to come up for judicial review in the case, but which were later ruled to be unconstitutional. 

In one case, a district judge in Maryland found that a local school district discriminated against a transgender student on the basis of sex in a public school in violation of Title IX, which prohibits sex discrimination in education. 

He cited a school policy that stated that transgender students could not use the restroom in the school with the gender listed on their birth certificate. 

Another case involved a Catholic school in California that barred students from wearing makeup to school. 

Judge Holden wrote that the policies violated the First and 14th Amendments because they were based on religious beliefs. 

She called the administration’s decision to exclude transgender students from using the restroom based on their sex discrimination “the most radical step yet to deny equal access to education for all students.” 

The opinion was issued after a court judge ruled that a school district in California’s San Bernardino County could not exclude transgender boys from using a girls’ restroom due to religious beliefs, a decision that has led to lawsuits. 

This ruling came a week after a district court in Virginia ruled that it was unconstitutional for the Trump Justice Department to bar transgender students in schools that do not allow gender identity to be the basis for their inclusion on a school’s school resource plan. 

Both cases are tied to a similar case, which is now before the Ninth U.P. Court, and have been appealed to the Ninth Court. 

(Read more about Judge Holden’s opinion here: Judge Neil Gorsuch: ‘Hot Bench’ for Religious Freedom rulings.) 

In another case, Judge Holden defended a federal judge who found that it is unconstitutional for a school to require transgender students to use a locker room and bathroom consistent with their gender identity. 

That case involves a transgender girl in an eighth-grade biology class who is assigned female at birth.

The judge said in a written opinion that it “is difficult to find a law that protects the rights of all students with gender identity disorder, and a provision in Title IX specifically prohibits discrimination based on sex.” 

In other cases, Judge Neil Gorsuch defended a student who was banned from using bathrooms that corresponded with his gender identity when he was a student at an elementary school in Ohio. 

When the student asked for a locker, teachers told him to use the girls’ bathroom, but the school superintendent told him that students could use the bathrooms of their gender identities, the opinion states. 

A district court judge in Texas ruled that an Indiana school district could not force a student to use bathrooms that do match his gender. 

For her opinion, Judge Gorsuch wrote that her “primary concern was whether the district was violating the law in its conduct of its business, and that was not her primary concern when she heard the complaint, which included a detailed statement of the facts.” (Related: The Court Is Taking the Trump Administration’s ‘Hot’ Religious Freedom Cases on the Hot Bench.) 

Judge Gorsuch is the first member of the Ninth Supreme Court to be appointed to the bench by President Trump. 

Trump appointed Judge Gorsuch to the federal bench in January. 

According to the White House, Judge Kavanaugh was not involved in the administration when he served as a federal district judge, but she is now the second woman to serve on the court. 

Follow Aaron Bandler on Twitter.

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