Allison Jones Rushing
Such oversights provide a loophole for every village secularist to charge into court with the ACLU and challenge governmental acknowledgements of religion, no matter how passive or benign. These delicate plaintiffs with eggshell sensitivities— who claim deep offense at the acknowledgement of any beliefs that conflict with their own—then seek court orders censoring the religious message, as a type of ‘heckler’s veto.’ Allison Jones Rushing, as co-author of “Nothing to Stand on: ‘Offended Observers’ and the Ten Commandments” [In Engage Volume 6, Issue 2 (2005)]
Allison Jones Rushing is a Trump-appointed judge on the U.S. Court of Appeals for the Fourth Circuit. At the time of her confirmation in a 53-44 vote, she was the youngest federal judge in the U.S., at age 37. She was reportedly one of the three finalists to replace U.S. Supreme Court Justice Ruth Bader Ginsburg after the justice’s death on September 18, 2020, just weeks before election day and as voters were casting their ballots. Jones Rushing was said to be the favorite of evangelical groups, but Leonard Leo worked with Kellyanne Conway to maneuver a Catholic, Amy Coney Barrett, into the vacancy on the nation’s highest court.
Just a few months after her appointment to the Fourth Circuit, Jones Rushing voted to uphold a Trump administration “gag rule” preventing Title X-funded healthcare providers from referring their patients to abortion services, reversing a district court injunction blocking that rule. The Final Rule prohibited providers who receive Title X funding from supplying their patients with information regarding abortion care and required they be “physically and financially separate” from anyone who provides or advocates for abortion care. More than four million Americans rely on Title X-assisted preventative healthcare, which aids low-income and uninsured Americans, including those from marginalized communities, who often face significant barriers to accessing healthcare. When the lower court injunction was later reinstated in a rehearing en banc, Jones Rushing unsurprisingly joined the dissent.
About a year later, she joined a dissent siding with President Trump’s attempt to dismiss D.C. and Maryland lawsuits against him for violating the Constitution’s Emoluments Clause barring the president from accepting items of value from foreign or domestic entities. This case involved foreign dignitaries staying at the Trump International Hotel.
In one of her most reported dissents, Jones Rushing rejected a Virginia county school board’s admissions policy at a magnet school. In this instance, she dissented from a panel decision in Coalition for TJ v. Fairfax County School Board that did not strike down an affirmative action plan that Jones Rushing asserted was designed “to reduce Asian student enrollment,” because the program resulted in a decline in the percentage of Asian American students admitted, from 73% to 54%, while the percentage of Black, Hispanic, and white students admitted increased. Her dissent echoed the claims of SFFA, which the U.S. Supreme Court, in a 6-3 ruling, decided later.
She also dismissed a government employee’s claim that she was fired for reporting alleged sex discrimination. Jones Rushing ruled that the “superior’s retaliation is the product of the employee voicing [her] opinion, not sex.”
During her nomination to the U.S. Court of Appeals, her limited experience practicing law was highlighted by those concerned about her nomination. Although Jones Rushing was young and inexperienced for consideration for a lifetime appointment to the federal court, she had deep right-wing ties. She clerked for Clarence Thomas on the Supreme Court, and David B. Sentelle and Neil Gorsuch on the D.C. and 10th Circuits, respectively; they are considered three of the most right-wing judges in the U.S.
After her first year of law school, she interned at the Alliance Defense Fund, what would later become the Alliance Defending Freedom (ADF), the anti-LGBTQ+ and anti-abortion organization that the Southern Poverty Law Center labels a “hate group.” ADF contends that recognizing the rights of LGBTQ+ Americans to marry is an attack on society, with some suggesting that ADF believes “conservative Christians should be dominating every aspect of society.” In August 2017, Rushing took part in an ADF panel about the Blackstone Legal Fellowship program, which advocates for the criminalization of abortion, and promotes LGBTQ+ discrimination. It also trains and supports Christian fellows to develop the law through the knowledge that “man lacks authority to write a law that contradicts God’s law.” On her Senate questionnaire, she noted that she had given speeches to the group at least seven times since 2012.
In a 2013 speech at a forum titled “Enemies of Mankind: Religion and Morality in the Supreme Court’s Same-Sex Marriage Jurisprudence,” Jones Rushing expressed her support for the Defense of Marriage Act (DOMA) and her opposition to the Windsor decision, in which the Supreme Court ruled the law unconstitutional and that the federal government cannot discriminate against married same-sex couples when determining benefits and protections. Jones Rushing argued that “the fact that DOMA codified the definition of marriage that had prevailed throughout most of human history… was evidence that the law did have a valid basis.” She also criticized the way in which the majority opinion was written, “that calls it bigotry to believe that homosexuality does not comport with Judeo-Christian morality.”
She has also been a member of Leonard Leo’s Federalist Society since 2012, although her connection to the right-wing advocacy organization goes back further. In 2005, she published an article in the Federalist Society Review, “Engage,” in which she argued that the plaintiffs in two cases regarding the Ten Commandments displayed on government property lacked standing. With her co-author, Jordan Lorence who is the current Director of Strategic Engagement for ADF, she complained that “these delicate plaintiffs with eggshell sensitivities” were attempting to censor religious expression without any real injury, just as “offended observers.” Notably, when 303 Creative, a manufactured case built and argued by ADF in which the plaintiffs suffered no real harm, landed in front of the Supreme Court, her former boss, Neil Gorsuch, had no objections to hearing the case. Not only did he rule that the “offended observers” fulfilled the standing requirement, he also overturned Colorado’s public accommodation laws to carve out an exception to discriminate against LGBTQ+ individuals for those who claim not discriminating would violate their religious beliefs.