Yesterday, as the Senate recessed, it returned approximately 100 nominees to the White House unconfirmed. Among the nominees returned was Matthew Kacsmaryk, a Texas lawyer who has made a name for himself as an advocate for religious liberty. While Kacsmaryk may lack the explosive paper trail that sank fellow Texas nominee Jeff Mateer, he is still likely to face strong opposition for his work on LGBT and reproductive rights issues.
Matthew Joseph Kacsmaryk attended Abilene Christian University, receiving his Bachelor of Arts summa cum laude in 1999 and a Juris Doctor from the University of Texas School of Law in 2003. After graduating from law school, Kacsmaryk joined the Dallas office of Baker Botts as an associate.
In 2008, Kacsmaryk left Baker Botts and joined the U.S. Attorney’s Office for the Northern District of Texas as an Assistant U.S. Attorney (AUSA). In this role, Kacsmaryk prosecuted criminal and national security cases, working on both trials and appeals. In 2013, Kacsmaryk joined the First Liberty Institute, a non-profit law firm frequently representing individuals in claims of religious liberty. He serves as Deputy General Counsel at the organization.
History of the Seat
Kacsmaryk has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas. The Northern District is facing a high level of turnover, with four of the twelve allotted judgeships for the District currently vacant, and a fifth scheduled to open later next year. The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.
The vacancy Kacsmaryk has been nominated to fill opened on February 3, 2016, when Judge Mary Lou Robinson moved to senior status. While Obama sent nominees to three other vacancies on the Northern District, he did not nominate anyone to fill the Robinson seat. As such, the seat remained vacant, and Kacsmaryk was nominated, with the recommendations of Texas Senators John Cornyn and Ted Cruz, on September 7, 2017.
Kacsmaryk has worked in three primary legal positions in his career: as an associate at Baker Botts; as a federal prosecutor; and as Deputy General Counsel at the First Liberty Institute. In his initial position at Baker Botts, Kacsmaryk focused on commercial, constitutional, and intellectual property litigation. He also received the Opus Justitiae Award for Outstanding Commitment to Pro Bono Work.
From 2008 to 2013, Kacsmaryk worked as a federal prosecutor in the U.S. Attorney’s Office for the Northern District of Texas. In this capacity, Kacsmaryk worked primarily with the appellate division, arguing criminal appeals before the U.S. Court of Appeals for the Fifth Circuit. He also handled several criminal trials, including the prosecution of college student Khalid Ali Aldawsari for his purchase of nitric acid and other products to construct explosives for a terror plot.
As Deputy General Counsel at the First Liberty Institute, Kacsmaryk oversees the education and policy advisory teams. In this capacity, he has frequently commented on issues of religion and the law. For example, in 2014, Kacsmaryk described the Obama Administration’s executive order requiring all federal contractors to avoid anti-LGBT discrimination as favoring “sexual revolution fundamentalism over the sincerely-held religious beliefs of Americans.” Kacsmaryk was also involved in fights against the Obama Administration’s directive to school districts encouraging the accommodation of “gender identity” in gender-specific public facilities. Kacsmaryk also criticized a similar directive in the Fort Worth Independent School District, arguing that the directive made “no reasonable accommodation for dissenting Muslims, Jews, Mormons, Catholics, and Protestants who adhere to the Book of Genesis and continue to believe that God ‘created them male and female.’”
Among other cases, Kacsmaryk has been involved in the suit to defend a Mississippi law allowing businesses and government workers to avoid service to LGBT individuals and same-sex couples based on their religious beliefs, as well as a challenge to the Obama Administration’s contraception mandate.
In his capacity at First Liberty Institute, Kacsmaryk has authored several articles on issues of religious freedom and conscience. These articles lay out a broad view of “religious freedom” encompassing the rights of religious individuals not to comply with laws that violate their moral beliefs. In a 2016 article, Kacsmaryk wrote:
“…exceptions for conscientious objectors are the rule in the American legal tradition.”
Kacsmaryk has also repeatedly criticized anti-discrimination provisions for LGBT individuals, as well as same sex marriage. In an article published shortly before the Supreme Court’s decision in Obergefell, Kacsmaryk characterized same-sex marriage as an extension of the weakening on marriage’s four pillars, coming on top of no-fault divorce, the decriminalization of consensual extra-marital sexual conduct, and the decriminalization of contraception & abortion. He went on to note that, with the legalization of same-sex marriage, “faith-based organizations cannot safely assume that their external contracts, grants or cooperative agreements honor their sincerely held religious beliefs.”
In another article, Kacsmaryk described the Equality Act, which would make sexual orientation and gender identity a “protected class” under Title VII as “seek[ing] to weaponize Obergefell.” Instead, Kacsmaryk endorsed the First Amendment Defense Act, which prevents government enforcement of civil rights laws against those who act with a religious belief or moral conviction opposing same-sex marriage or sexual relations.
Kacsmaryk has frequently supported Republican candidates as a donor, including donations to both Cornyn and Cruz. Among his more prominent donations, Kacsmaryk donated $1000 to both Fred Thompson and John McCain during the 2008 Presidential campaign, and gave $1000 to Cruz’s campaign in 2016.
Based on the aggressive questions from Democrats at his confirmation hearing, and by the strong opposition to his nomination by LGBT groups, it is unlikely that Kacsmaryk will get any Democratic support. In a post-nuclear option world, the key question is whether Kacsmaryk will maintain enough Republican votes to be confirmed. After the seating of Alabama senator Doug Jones, opponents will need to peel off two Republican senators to defeat Kacsmaryk.
In making their case, Kacsmaryk’s critics will likely point to his long paper trail of criticism of the LGBT and reproductive rights movement. Specifically, they may point to his writings that criticize (by comparison) well-established principles such as no-fault divorce and the decriminalization of contraception. They may also argue that Kacsmaryk’s writings demonstrate a bias against LGBT individuals (indeed, the Alliance for Justice has already made that argument).
In response, Kacsmaryk’s supporters will seek to contextualize his statements as reflecting a commitment to “religious liberty” rather than expressing hostility to LGBT rights. Furthermore, they will likely point to Kacsmaryk’s less controversial tenures at Baker Botts and the U.S. Attorney’s Office to demonstrate his commitment to the law.
Given the salience of religious, reproductive, and LGBT rights in the political climate, Kacsmaryk’s nomination will likely rise and fall based on the pressure placed on Republican moderates such as Sens. John Kennedy, Susan Collins, and Lisa Murkowski. As of today, he remains more likely than not to become a federal judge in 2018.
 Andrew Restuccia and Seung Min Kim, Democrats Block Dozens of Trump Nominees, Politico, Dec. 22, 2017, https://www.politico.com/story/2017/12/22/trump-nominees-democrats-block-314775?lo=ap_e2.
 First Liberty Institute, Matthew Kacsmaryk, https://firstliberty.org/team/matthew-kacsmaryk/.
 See id.
 See id.
 See United States v. Aldawsari, No. 5.11-Cr-015-C, 2011 U.S. Dist. LEXIS 159597 (N.D. Tex. April 6, 2011). See also Associated Press, Saudi Man Aldawsari Sentenced to Life in Prison for Failed U.S. Bomb Plot, Fox News, Nov. 13, 2012, http://www.foxnews.com/us/2012/11/13/saudi-man-convicted-in-failed-us-bomb-plot-to-be-sentenced-faces-life-in-prison.html.
 See supra n. 1.
 Press Release, New York County Lawyer’s Association, Liberty Institute Attorneys Respond to President Obama’s Disregard for Faith-Based Contractors in Signing Executive Order that Ignores American Ideal of Diversity (July 22, 2014).
 Press Release, First Liberty Institute, Threat to Religious Schools Partially Lifted by Trump Executive Order and Supreme Court Action (Mar. 10, 2017) (available at https://firstliberty.org/category-newsroom/commentary/).
 Leah Jessen, Parents Beat Back Obama’s Transgender Bathroom Mandate in Texas Schools, The Daily Signal, July 24, 2016, http://dailysignal.com/2016/07/24/parents-beat-back-obamas-transgender-bathroom-mandate-in-texas-schools/.
 Chuck Lindell, Miss. Ruling Unlikely to Deter Texas GOP, Austin American Statesman, July 2, 2016.
 Christian & Missionary Alliance v. Burwell, 2015 WL 437631 (M.D. Fla. Feb. 3, 2015).
 Matthew Kacsmaryk, Moral Complicity at Court: Who Decides, The Witherspoon Institute, Apr. 6, 2016, http://www.thepublicdiscourse.com/2016/04/16709/.
 Matthew Kacsmaryk, The Abolition of Man…and Woman, National Catholic Register, June 24, 2015, http://www.ncregister.com/daily-news/the-abolition-of-man-…-and-woman.
 Id. (emphasis in original).
 Matthew Kacsmaryk, The Inequality Act: Weaponizing Same-Sex Marriage, The Witherspoon Institute, Sept. 4, 2015, http://www.thepublicdiscourse.com/2015/09/15612/.
 See id.
 Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=matthew+kacsmaryk&order=desc&sort=D (last visited Dec. 11, 2017).
 See id.
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