The American Bar Association has deemed Grasz “not qualified” to serve on the bench, warning that he may “be unable to separate his role as an advocate from that of a judge” and that attorneys who criticized Grasz expressed an “unusual fear of adverse consequences” if Grasz learned that they spoke out against him. Nevertheless, Grasz is likely to receive a lifetime appointment to the United States Court of Appeals for the Eighth Circuit — possibly as soon as Tuesday night.
Grasz’s record suggests that he will bring an unusually rigid view of “religious liberty” to the bench, and an equally unusual disregard for science.
Among other things, Grasz sits on the board of an organization that defends so-called “conversion therapy” — one article on the Nebraska Family Alliance’s website is titled “How Jayson Found Help for Unwanted Same-Sex Attraction,” and claims that “the conclusion that marriage is the union of man and woman follows from a proper understanding of human nature.”
According to the American Psychological Association, “same-sex sexual attractions, behavior, and orientations per se are normal and positive variants of human sexuality.” Rather than shaming sexual minorities or attempting to change their attractions, the APA recommends “interventions that reduce and counter internalized stigma” among queer individuals experiencing distress due to their sexual orientation.
As a deputy attorney general for the state of Nebraska, moreover, Grasz pushed an aggressive view of the rights of parents who do not accept the scientific consensus surrounding the theory of evolution.
In 1999, Nebraska’s state education board approved science standards that included evolution. The theory of evolution, which holds that complex species gradually emerged through a process of natural selection where organisms that are better suited to their environment are more likely to reproduce, is considered a foundation of modern biology.
Nonetheless, Grasz objected to these standards in an official letter from the state attorney general’s office. “Requiring students to ‘recognize’ (as fact) theories which contradict their religious beliefs would appear to be an interference with a right of conscience,” Grasz claimed in the letter. (Although Grasz’s 1999 letter does not appear to be available from a public source, it was referenced in an opposition research report by the liberal group the Alliance for Justice and quoted in a contemporaneous report in the Kansas City Star, which is available through the research service LexisNexis.)
Ultimately, the board responded to Grasz’s letter by altering its standards to provide that “evolution be taught as theory, not objective fact,” according to the Associated Press.
There are a number of problems with this resolution, including the fact that it is likely to mislead students about the scientific method and about basic scientific vocabulary. Though the word “theory” is often used to mean an untested idea by lay people, it has a very specific meaning within the scientific community — “an explanation of some aspect of the natural world that has been substantiated through repeated experiments or testing.”
When scientists say that something is a “theory,” they are stating that they have a very high degree of certainty that it explains the world, and that this certainty derives from rigorous testing. Dismissing a scientific explanation as “just a theory” is a bit like dismissing an individual’s wealth because they are “just a billionaire.”
More significantly, at least as a measure of how Grasz is likely to perform as a judge, Grasz received a truly extraordinary remedy for students in Nebraska who object to being taught about the broad scientific consensus surrounding the theory of evolution.
Typically, when an individual seeks an accommodation for their religious belief, they seek an individualized exemption from a policy they do not wish to follow. The anti-gay cake baker at the heart of a case pending before the Supreme Court, for example, does not claim that all anti-discrimination laws must fall because of his objection to one of them. Rather, he claims that he personally should be exempt from following Colorado’s ban on discrimination on the basis of sexual orientation. Other business owners, who do not share the same religious beliefs, would still be bound by the law.
Grasz, however, convinced the state Board of Education to change its statewide standards in order to accommodate the views of students with certain religious beliefs. As a result, children who have no religious objection whatsoever to the theory of evolution would receive an inferior education to students in other states — where the state education standards do not encourage teachers to misrepresent the consensus surrounding the theory of evolution.
If Grasz would grant similar remedies to religious objectors from the bench, that would be a massive escalation in tactics from the Religious Right’s current litigation strategy.
Prior to the Supreme Court’s decision in Burwell v. Hobby Lobby, it was well established that religious objections could not be wielded to undermine the rights of third parties. A religious baker could not violate anti-discrimination laws, for example, because that would diminish the rights of victims of discrimination.
Even after Hobby Lobby, lawsuits seeking religious exemptions are not comprehensive attacks on an entire policy. In Hobby Lobby, the plaintiffs gained the right to deny certain forms of birth control coverage to their own employees, but they didn’t invalidate the entire national policy protecting working women’s access to contraception. The rights of women employed by most other businesses remained intact.
Grasz’s approach to the state education standards, by contrast, indicates that he is willing to make every resident of a state bend to the will of a few religious objectors. Whether he’s willing to impose such a rule from the bench remains to be seen. But, at the very least, it leaves little doubt how he will approach plaintiffs similar to the anti-gay cake baker, who think that their religion gives them broad immunity from the law.