Judicial Winning: Justin Walker

Judge Justin Walker is sworn in prior to testifying before a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, May 6, 2020. (Jonathan Ernst/Pool via Reuters)

Justin Walker’s ascent to the federal judiciary is an American success story. Raised by a single mother in Louisville, Ky., Walker attended Louisville’s Catholic schools, studied at Duke in college, graduated magna cum laude from Harvard Law School, and then clerked on the D.C. Circuit and the Supreme Court. When Walker was in high school, he interviewed Senator Mitch McConnell, also from Louisville, for a research paper. Last year, Walker was confirmed to serve on the U.S. District Court for the Western District of Kentucky.

Judge Walker gained national attention this past spring when he ruled in favor of a Louisville church in its bid to hold a drive-in Easter service. Louisville mayor Greg Fischer had announced that such gatherings were not allowed, even though drive-through restaurants and liquor stores were still allowed to operate. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” wrote Walker in his 20-page opinion. “The Mayor’s decision is stunning. And it is, ‘beyond all reason,’ unconstitutional.”

Judge Walker was confirmed this past June to sit on the U.S. Court of Appeals for the D.C. Circuit, where he used to clerk for then Judge Brett Kavanaugh. Because he was confirmed to the seat being vacated by Thomas Griffith tomorrow, he will begin his tenure as an appellate judge this week, joining Greg Katsas and Neomi Rao as the third judge appointed by President Trump to the D.C. Circuit.

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Prior to joining what is often referred to as the second highest court in the land, Judge Walker has continued his defense of constitutional rights. On August 14, he granted a preliminary injunction in Chelsey Nelson Photography v. Louisville/Jefferson County Metro Government, a First Amendment free-speech case involving a Christian wedding photographer in Louisville who refuses to photograph same-sex wedding ceremonies. The underlying Fairness Ordinance prohibits discrimination based on sexual orientation and gender identity in housing, public accommodations, and employment.

The opinion accompanying the order reflects Walker’s measured, constitutionalist style. He made clear that he was not questioning the constitutionality of the ordinance in most of its applications, just its application to this particular context — compelled speech. The plaintiff’s photography was art, and thus a form of speech. And “the government can’t compel speech when it violates the speaker’s religious or political principles.”

Walker asserted, “America is wide enough for those who applaud same-sex marriage and those who refuse to. The Constitution does not require a choice between gay rights and freedom of speech. It demands both.”

Sure, he acknowledged, “photography is wordless. But so too is refusing to salute the flag. Or marching in a parade.” The Supreme Court had already applied free-speech principles in the latter two contexts.

Walker’s opinion avoids falling into ideological traps, instead keeping his eye on the rule of law. He pointed out that the gay-rights movement’s “progress depended on the First Amendment’s protection of expressive conduct that was once far less popular than it is today, from marching in pride parades to flying rainbow flags.” It is for similar reasons that courts must avoid “imposing indignities on religious believers when they engage in expressive conduct. . . . The solution is more dialogue, not less.”

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