Kyle Duncan, nominated by President Trump to the Fifth Circuit, is an experienced Supreme Court advocate who has built a reputation by promoting conservative religious causes through litigation and advancing prosecution-friendly positions in criminal cases. In particular, Duncan has spent much of his recent career fighting to narrow protections for reproductive freedom and LGBT rights. While the Fifth Circuit is already a conservative court, Duncan’s confirmation would add a uniquely conservative perspective.

Background

Stuart Kyle Duncan was born in 1972 in Baton Rouge, Louisiana.^[1] He graduated summa cum laude from Louisiana State University in 1994 and received his law degree in 1997 from the same institution, where he served on the Louisiana Law Review and was inducted into the Order of the Coif.^[2] After receiving his J.D. in 1997, he clerked for Fifth Circuit Judge John M. Duhé, Jr., in Louisiana.^[3] From 1998-2002 he had a series of relatively short stints in Texas as an associate working on appellate matters at Vinson & Elkins LLP in Houston; as Assistant Solicitor General in Austin; and as an associate at Weil, Gotshal & Manges LLP in Austin.^[4] In 2002, he became an “Associate-in-Law” (preparing a teaching career) at Columbia Law School, receiving his L.L.M. from that institution in 2004.^[5] He taught at the University of Mississippi School of Law from 2004-2008, then served as Appellate Chief (essentially the solicitor general)^[6] for Louisiana’s AG’s office from 2008-2012.^[7] After that he began what would become his most publicly notable work, serving from 2012-2014 as general counsel (leading the litigation team) for the Becket Fund for Religious Liberty,^[8] a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.”^[9] He left Becket in 2014 to open up his own shop, Duncan PLLC, which today exists as Schaerr Duncan LLP, where he continues work “in the same genre” as he handled “while in government practice and at Becket–namely civil and criminal litigation, typically concerning federal constitutional issues and primarily, but not exclusively, at the appellate level.”^[10]

Duncan is a member of the ABA’s Committee on the Relationship of the Legislative, Executive, and Judicial Branches.^[11] He is also a member of the Federalist Society (a conservative law and policy group whose membership has yielded numerous Trump nominees)^[12] and of the Knights of Columbus,^[13] “an international organization of nearly 2 million Catholic men whose principal work involves helping others in need.”^[14]

Duncan was a poll watcher for Mitt Romney’s presidential campaign in 2012, and in 2016 he was a member of the religious liberty advisory board for Marco Rubio’s presidential campaign.^[15]

History of the Seat

Duncan was nominated to a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit. The seat opened up with Judge W. Eugene Davis’s move to senior status on December 31, 2016.  Because the seat opened up so late in the Obama Administration, no nominee was put forward until Duncan was nominated on October 2, 2017.

Legal Career

Duncan’s most notable representations in recent history have been in opposition to reproductive freedom and the rights of LGBT people. (Disclosure: In many of the cases cited below, the ACLU–for whom I work–was on the opposite side of the litigation.)

Since leaving the Becket Fund, Duncan has devoted considerable time in cases involving transgender rights. For example, Duncan represented a Virginia school board that refused to let transgender male student Gavin Grimm use the male restroom at school. The Supreme Court did not ultimately issue a merits determination in that case. Duncan also represented North Carolina’s speaker of the House and the president pro tem of the Senate in Carcaño v. McCrory, ^[16] a suit challenging North Carolina’s House Bill 2, which blocked transgender people from accessing restrooms and other facilities consistent with their gender identity and prevented local governments from protecting LGBT people from discrimination in a variety of settings, and HB 2’s replacement law, HB 142.

The plaintiffs in Carcaño, represented by the ACLU and Lambda Legal, contended among other things that denying transgender people access to restrooms consistent with their gender identity violates their rights under the Equal Protection and Due Process Clauses and Title IX.^[17] In his intervention motion on his clients’ behalf, Duncan argued that the plaintiffs’ legal theory was  “radical” and “subjects every North Carolina female” using public facilities “to a heightened risk of sexual predation” by men falsely claiming to be women.^[18] In the motion, Duncan also  repeatedly put quotation marks around words such as “woman” and “identify” and the phrase “gender identity.”^[19] Despite Duncan’s characterization, the district judge, appointed by George W. Bush, entered a preliminary injunction as to the plaintiff’s Title IX claim,^[20] in accordance with the increasing number of courts who are finding that similar restrictions preventing transgender students from accessing restrooms consistent with their gender identity violate Title IX and the Equal Protection Clause.^[21]

Throughout the litigation, Duncan’s ultimate legal position–increasingly rejected by courts^[22]–was that discrimination against transgender people is subject to the most lenient form of judicial review, rational-basis review. Moreover, Duncan rejects the application of the sex-stereotyping theory of sex discrimination (from the Supreme Court’s Price Waterhouse v. Hopkins case) to transgender people. At the preliminary-injunction hearing, Duncan argued that transgender women are not women and that transgender men are not men, and that laws like North Carolina’s don’t have anything to do with sex stereotypes. To Duncan, the cases applying Price Waterhouse to transgender people were those “where the discriminator has discriminated on the basis of mannerisms, or the appearance, the behavior of a person. Just to put it in plain terms, I’ve discriminated against a man because that man doesn’t act enough like a man,” or “[w]e don’t think a man should look like that.”^[23] Duncan distinguishes North Carolina’s laws by saying that under those provisions, “[i]It doesn’t matter how you present as a man, it doesn’t matter how masculine you are, it doesn’t matter how high your voice it, it doesn’t matter. Men use the men’s bathroom. The same for women. That’s not sex stereotyping. That’s the opposite of sex stereotyping.”^[24]

In addition to his work limiting transgender rights, Duncan has also fought the legal recognition of same-sex families. Duncan was counsel of record for the respondent in V.L. v. E.L., which concerned a lesbian couple’s second-parent adoption, which is an adoption by someone who is not the spouse of the child’s legal parent. (At the time of the adoption, V.L. could not legally marry biological mother E.L. in Alabama, but the two sought to raise their child together.) V.L. and E.L. secured the adoption in Georgia, but E.L. later tried to disrupt the arrangement by arguing that Alabama did not have to give full faith and credit to the Georgia court’s judgment. In his response to the cert petition, Duncan argued that the Georgia court lacked jurisdiction to grant the adoption, and therefore Alabama did not have to honor it.^[25] Duncan criticized V.L. for “extravagantly” claiming that the Alabama Supreme Court’s decision “grossly deviates” from the Supreme Court’s full-faith-and-credit jurisprudence, and said she was overstating the harms that the Alabama court’s decision would cause.^[26] Without granting oral argument, the Supreme Court summarily reversed in a unanimous decision, rejecting Duncan’s arguments, stating that under Georgia law, superior courts have subject-matter jurisdiction to decide “all matters of adoption,” and whatever the merits of the Georgia court’s judgment, that judgment was within that statutory grant of jurisdiction and had to be given full faith and credit.^[27]

Perhaps Duncan’s most famous case was serving as party counsel to Hobby Lobby Stores and its owners in their eponymous challenge to the Affordable Care Act’s contraception mandate.^[28] In Hobby Lobby, the Supreme Court struck down the requirement as to closely held corporations whose owners objected to providing contraceptive coverage on religious grounds.^[29] Duncan’s subsequent forays into reproductive-freedom law included filing an amicus brief in the Supreme Court’s latest abortion case, Whole Woman’s Health v. Hellerstedt, on behalf of the Association of American Physicians and Surgeons, Inc.,^[30] and representing his former boss–the State of Louisiana–in its defense of a challenge to its requirement–not unlike the one struck down in Whole Woman’s Health–that doctors performing abortions have admitting privileges at a nearby hospital. In that case, June Medical Services, L.L.C. v. Gee, the district court entered a permanent injunction earlier this year barring enforcement of the law,^[31] and the case is on appeal for the second time to the Fifth Circuit.^[32] Rejecting the foundation of the purported purpose behind these laws–women’s safety–the district court noted in its final order that Duncan “did not introduce any evidence showing that patients have better outcomes when their physicians have admitting privileges,” nor did he “proffer evidence of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment.”^[33] The court continued:

In conclusion, there is no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law. Indeed, the overwhelming weight of the evidence demonstrates that, in the decades before the Act’s passage, abortion in Louisiana has been extremely safe, with particularly low rates of serious complications, and as compared with childbirth and with medical procedures that are far less regulated than abortion.

…

Act 620 would do very little, if anything, to advance women’s health and indeed would, by limiting access to legal abortions, substantially increase the risk of harm to women’s health by increasing the risks associated with self-induced or illegal and unlicensed abortions.^[34]

This is only a small sample of the major statutory and constitutional disputes in which Duncan has been involved. He represented a muslim inmate in the Supreme Court in a successful religion-based challenge to a state prison system’s beard-length rules (Holt v. Hobbs),^[35] represented amici National Sheriffs’ Association and others in challenging President Obama’s DAPA order (Deferred Action for Parents of Americans and Lawful Permanent Residents) (United States v. Texas),^[36] represented several state amici in contending that the Sixth Amendment does not require criminal defendants to be apprised of the collateral deportation consequences of a guilty plea (Padilla v. Kentucky),^[37] represented several state amici in opposing marriage for same-sex couples (Obergefell v. Hodges),^[38] represented the State of North Carolina in filing an unsuccessful cert petition attempting to overturn a Fourth Circuit ruling finding that the state violated the Voting Rights Act in making changes in election laws to target Black voters (North Carolina v. North Carolina State Conf. of the NAACP),^[39] represented the State of Louisiana in unsuccessfully contending that Miller v. Alabama (prohibiting mandatory life sentences without parole for juvenile offenders) was not retroactive on state collateral review (Montgomery v. Louisiana),^[40] successfully represented Louisiana in overturning a multi-million-dollar jury award against a prosecutor (Connick v. Thompson)^[41], and supervised the representation of a Jewish prison inmate seeking a kosher diet (Rich v. Sec’y, Fla. Dep’t of Corrections, in the Eleventh Circuit),^[42] among others.

Speeches/Writings

Duncan has been a prolific public commentator, and his views in the public sphere track those made in the courtroom. Indeed, most of Duncan’s writing is directed at litigation. He has written on Hobby Lobby (contraception),^[43] Zubik (contraception),^[44] Trinity Lutheran (religious funding),^[45] Windsor and Obergefell (marriage for same-sex couples),^[46] and others.

Duncan has written and spoken most often on the contraception mandate.^[47] He predicted that the Affordable Care Act’s contraception mandate “could lead to future mandates that could encompass all manner of controversial practices from surgical abortion to euthanasia to sex-change surgery.”^[48] Duncan also complained that the religious-employer exemption does not go far enough:

Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.

This kind of religious quarantine is patently unconstitutional.

…

Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.^[49]

On marriage, Duncan says that Obergefell “threatens civic peace” because it “marginalize[s] the view of millions of Americans at exactly the wrong time, when standards of civil discourse are rapidly degenerating and when Americans seem increasingly to be forgetting the value of a robust, free, and open exchange of ideas on controversial topics.”^[50]

On public displays on religion, he criticizes “militant atheist” groups that insist on “scour[ing] public life of all religious references” or sponsoring deities like the Flying Spaghetti Monster when such “scour[ing]” is not an option.^[51] (Disclosure: I am currently co-counseling an unrelated religious-freedom case with the organization Duncan criticizes in the cited piece.) Defending a city’s purported right to sponsor a nativity scene but permit no other religious displays, Duncan explains: “Any government doomed to give ‘equal time’ to objectors whenever it speaks would collapse into incoherence. The postal service couldn’t issue a stamp honoring Martin Luther King, Jr., without also honoring the Ku Klux Klan. The National Holocaust Museum would have to include the Joseph Goebbels Wing. Lincoln’s statue would have to stare at a Jefferson Davis Memorial.”^[52]

Duncan has also written a number of law-review articles. For example, one criticizes Flast v. Cohen, which permitted taxpayer standing to challenge Establishment Clause violations.^[53] One analyzes and defends Justice Scalia’s dissent in the Ten Commandments case, McCreary County.^[54] Another promotes the idea of tying Establishment Clause jurisprudence to the principle of “subsidiarity”–a “theory about the relationship among social structures, the common good and human dignity with a venerable pedigree in European political thought”; the theory, as explained in the article, is highly complex but ultimately leads to the result of a states’-rights approach to establishment questions.^[55] And one article criticizes barriers to public religious funding and seemingly laments Supreme Court decisions that have “scoured public schools of all formal religious practice.”^[56]

Overall Assessment

Kyle Duncan is an experienced appellate litigator with highly significant successes in the Supreme Court and lower courts. Both through his academic writings on religion-clause jurisprudence and through his litigation, Duncan has established his views on religious freedom, reproductive freedom, and LGBT rights. While some nominees assert that their work in an AG or SG’s office is not relevant because they were merely representing their government client, the assiduousness and consistency of Duncan’s post-government work at Becket and in private practice suggest that his representations track his own views. If confirmed to the Fifth Circuit, he would likely be a strong voice for narrowing statutory and constitutional protections for reproductive freedom and LGBT rights, while expanding the leeway allowed for citizens making religious objections to a wide variety of laws.