Duncan Worked to Undermine Rights for Others

Press Release


WASHINGTON, D.C., November 27 – Alliance for Justice today released a report on the record of Kyle Duncan, nominated by President Trump for a seat on the U.S.Court of Appeals for the Fifth Circuit. AFJ President Nan Aron released the following statement:

“Kyle Duncan is an extreme hardliner when it comes to opposing women’s reproductive rights; one of the highlights of his career so far was his role as lead counsel for Hobby Lobby, in the infamous case that allowed for-profit corporations to deny contraceptive coverage to employees. Not only that, he’s fought to make it harder for people of color to vote and against rights for LGBTQ people and immigrants. Duncan has a clear record of working to undermine protections for vulnerable people and communities, and for that reason AFJ is strongly opposed to his confirmation.”

Among other things, the AFJ report notes:

  • Duncan served as lead counsel in Hobby Lobby, where the Supreme Court found in a 5-4 decision that closely-held for profit corporations can be considered to have religious beliefs, and can deny contraceptive coverage as part of their employer-sponsored health insurance plans when contraception conflicts with those beliefs.
  • Duncan, like another Trump nominee, Matthew Kacsmaryk, unsuccessfully opposed women’s reproductive rights in Stormans Inc. v. Weisman. Duncan co-wrote an amicus brief petitioning the Supreme Court to overturn a Washington state law that required pharmacists to stock a “representative assortment of drugs…in order to meet the pharmaceutical needs of its patients,” including birth control.
  • Duncan has repeatedly dismissed the importance to women of access to contraception. He has accused the government of treating contraception as “the sacrament of our modern life,” and has criticized the idea that contraceptives are necessary for “‘the good life,’ health and economic success of society, particularly women.”
  • Duncan has long opposed marriage equality, and has been an outspoken critic of the Supreme Court’s decisions in Obergefell v. Hodges and United States v. Windsor.  He once wrote that if the Court recognized that same-sex marriage was a fundamental right, the “harms” to our democracy “would be severe, unavoidable, and irreversible.”
  • As counsel in two cases, Adar v. Smith and V.L. v. E.L., Duncan sought to deny same-sex couples adoption rights in Louisiana and Alabama.
  • In Gloucester County School Board v. G.G., Duncan represented Virginia’s Gloucester County School Board and argued that Gavin Grimm, a transgender high school boy, should not be allowed to use the men’s restroom.
  • In 2016, Duncan, along with fellow Trump judicial nominees Thomas Farr and Stephen Schwartz, unsuccessfully represented North Carolina in an attempt to obtain a Supreme Court reversal of the Fourth Circuit’s ruling in North Carolina v. N.C. St. Conf. of the NAACP. The Fourth Circuit had previously struck down a restrictive voting law that required voters to have photo identification, reduced the days of early voting, and eliminated same-day registration, out-of-precinct voting, and preregistration. In its ruling, the Fourth Circuit observed that the law “target[s] African Americans with almost surgical precision.”
  • Duncan was involved in the litigation against President Obama’s Executive Order that established the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, and also against Obama’s Deferred Action for Childhood Arrivals (DACA) program.  Duncan challenged DAPA on the basis that it threatened public safety, claiming that “[m]any violent criminals” would benefit from it.

Read the full report online here.