American Family Association Action (AFA Action), is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association (AFA).
Judge on the U.S. Court of Appeals for the Fourth Circuit
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In her Senate Questions for Answer, Rushing downplayed prior comments she made about the Defense of Marriage Act and how the Windsor majority “chose to write the opinion in a unique way that calls it bigotry to believe homosexuality does not comport with Judeo-Christian morality.”[1]When asked whether there should be so-called “LGBT anti-discrimination laws,” Rushing replied, “whether particular federal anti-discrimination laws should exist is a political question for Congress.”[2] Rushing is Baptist and grew up in the Baptist Church. As of 2018, she belonged to Capitol Hill Baptist Church.[3] Judge Rushing is married to Blake Rushing, whom she met at church, and has one son.[4] During her confirmation hearing, Rushing said of her husband, “I would not be sitting here today were it not for his love and support” and then referred to her son as “the light of our lives.”[5] When asked during the hearing about her regrets, Rushing stated that she wished in the past she had focused on family more and her career less.[6]
[1] S. Questions for Answer, p. 65. Questions from Senator Harris. Question #4a.
[2] S. Questions for Answer, p. 66. Questions from Senator Harris. Question #6e.
[3] Bill Moss, East Flat Rock native nominated for nation’s second highest court, Hendersonville Lightning (Sept. 7, 2018), https://www.hendersonvillelightning.com/news/7254-east-flat-rock-native-nominated-for-nation-s-second-highest-court.html.
[4] Bill Moss, East Flat Rock native nominated for nation’s second highest court, Hendersonville Lightning (Sept. 7, 2018), https://www.hendersonvillelightning.com/news/7254-east-flat-rock-native-nominated-for-nation-s-second-highest-court.html; Ray Nothstine, A closer look at Supreme Court candidate Allison Jones Rushing, Civitas Institute (Sept. 23, 2020), https://www.nccivitas.org/2020/closer-look-u-s-supreme-court-candidate-allison-jones-rushing/.
[5] Judicial Confirmations, C-Span (Oct. 17, 2018), https://www.c-span.org/video/?453163-1/judicial-confirmations, at 5:38.
[6] Judicial Confirmations, C-Span (Oct. 17, 2018), https://www.c-span.org/video/?453163-1/judicial-confirmations, at 13:24.
Judge Rushing has a deferential view of precedent. In her Senate Questions-for-Answer Responses, Rushing stated, "When applying constitutional provisions today, lower court judges should adhere to the meaning that the Supreme Court has assigned to those provisions.” [7] Rushing has also stated, "For a lower court judge, the original public meaning of a constitutional provision is dispositive when the Supreme Court has decided that it is dispositive.” [8] She has conveyed a textualist approach. In Graham v. Dhar, Judge Rushing wrote: “'If the text [of a statute], given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.' [citations omitted]." [9]
[7] S. Questions for Answer, p 2. Question from Senator Durbin. Question #7a (bold and emphasis added).
[8] S. Questions for Answer, p 4-5. Question from Senator Coons. Question #6c (bold and emphasis added).
[9] Graham v. Dhar, 33 F.4th 178, 182 (4th Cir. 2022) (bold and emphasis added). Link here.
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Rushing wrote amicus briefs in several cases involving religious liberty.[10] However, Rushing downplayed her involvement with ADF in connection to these cases during her Senate Confirmation hearing, stating, "In every case, the choice of counsel is for the client to make, and once counsel is chosen, the client directs the attorney’s conduct of the litigation. . . In each case, I represent the interests of my clients, not any other group or party."[11] She has been skeptical of Establishment Clause claims brought by “offended observers.” In "Nothing to Stand on: 'Offended Observers' and the Ten Commandments," an article written by Rushing and Jordan Lorence, the authors state: “The Supreme Court could end many Establishment Clause disputes by enforcing Article III standing requirements on those bringing the lawsuits, who many times have no more stake in the issues than being ‘offended observers.’”[12] In a panel at Capitol Baptist Church, she claimed the Defense of Marriage Act had a moral foundation grounded in Judeo-Christian morality. Rushing stated: “The congressional record indicated that DOMA reflected ‘moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo- Christian) morality.’”[13]
[10] S. Questions for Answer, p. 6. Questions from Senator Booker. Question #8e.
[11] S. Questions for Answer, p. 6. Questions from Senator Booker. Question #8e.
[12] Jordan Lorence & Allison Jones, Nothing to Stand on: “Offended Observers” & the Ten Commandments, 6 Engage 138, 138 (2005), https://fedsoc-cms-public.s3.amazonaws.com/update/pdf/B22wZwmR6ZBq5SEsPA5qbyWBvQa7FMQ8k1MyDSo8.pdf (bold and emphasis added).
[13] Henry Forum: “Enemies of Mankind: Religion and Morality in the Supreme Court’s Same- Sex Marriage Jurisprudence,” Capitol Hill Baptist Church (Oct. 30, 2013), https://web.archive.org/web/20190429074311/https://www.afj.org/wp-content/uploads/2018/10/Rushing-Religion-and-Morality-in-the-Suprme-Courts-Same-Sex-Marriage-Jurisprudence.pdf; see also Allison Jones Rushing Background Report, Alliance For Justice (Oct. 15, 2018), https://www.afj.org/document/allison-jones-rushing-background-report/ (bold and emphasis added).
Rushing affirmed the SCOTUS abortion rulings. In the Senate Questions-for-Answers, Senator Coons asked Rushing: “Do you agree that there is a constitutional right to privacy that protects a woman’s right to obtain an abortion?” Rushing responded: “Yes, under the Supreme Court’s decisions in Roe v. Wade, 410 U.S. 113 (1973), Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).” [14] Rushing dissented to the 4th Circuit’s majority opinion imposing an injunction on HHS’s final rule, which barred the use of federal grant funds where abortion is a method of family planning. Rushing signed onto Judge Richardson’s dissent, which stated: "[A]s judges, we must defer to the agency's reasonable interpretation of an ambiguous statute. And we are forbidden from second guessing the analysis and policy judgments that undergird the agency's regulations. Yet the majority oversteps its role and fails to give HHS the deference it is due.”[15]
[14] S. Questions for Answer, p. 29. Questions from Senator Coons. Question #3a. Link here (bold and emphasis added).
[15] Mayor of Balt. v. Azar, 973 F.3d 258, 325 (4th Cir. 2020). Link here. (bold and emphasis added)
Rushing has not acknowledged a link between homosexuality and pedophilia. In the Senate Questions-for-Answers, Senator Whitehouse asked Rushing: “Are ADF’s anti-LGBTQ views in line with your own?” Rushing replied: “I do not work for ADF or have any official role with them. I do not know what is meant by ‘homosexual legal agenda’ or a link between homosexuality and pedophilia…”[16] Rushing defended the 1996 Defense of Marriage Act, defining marriage as between only a man and a woman, stating, “The reasons for the law were both moral and practical.” [17] She signed onto a majority opinion that held a public school violated the Equal Protection Clause though gender stereotypes and that sex-based dress codes are subject to review. The opinion by Judge Keenan read, “In sum, we hold that CDS, a public school under North Carolina law, is a state actor…By implementing the skirts requirement based on blatant gender stereotypes about the "proper place" for girls and women in society, CDS has acted in clear violation of the Equal Protection Clause.”[18]
[16] S. Questions for Answer, p. 21. Questions from Senator Whitehouse. Question #1a. Link here (bold and emphasis added).
[17] Henry Forum: “Enemies of Mankind: Religion and Morality in the Supreme Court’s Same- Sex Marriage Jurisprudence,” Capitol Hill Baptist Church (Oct. 30, 2013), https://web.archive.org/web/20190429074311/https://www.afj.org/wp-content/uploads/2018/10/Rushing-Religion-and-Morality-in-the-Suprme-Courts-Same-Sex-Marriage-Jurisprudence.pdf. See also, The Leadership Conference on Civil and Human Rights, Oppose the Confirmation of Allison Rushing to the U.S. Court of Appeals for the Fourth Circuit, (Oct. 16, 2018). Link here (bold and emphasis added).
[18] Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 130-31 (4th Cir. 2022). Link here (bold and emphasis added).
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Rushing is involved with ADF’s Blackstone Legal Fellowship Program and has spoken through the program at least three times.[19] Rushing supported Mitt Romney’s presidential campaign in 2012 by volunteering legal services.[20] In 2009, Rushing volunteered for Democrat Sam Arora’s campaign for Maryland House of Delegates through hosting fundraisers and door to door campaign canvassing.[21] During Arora’s one term as a Delegate, he co-sponsored legislation that advocated for the legalization of same-sex marriage; however he eventually ended up opposing the bill.”[22] Arora also voted against legislation to limit abortion funding.[23]
[19] Allison Jones Rushing Background Report, Alliance For Justice (Oct. 15, 2018), https://www.afj.org/document/allison-jones-rushing- background-report/.
[20] S. Questionnaire, p. 10. Link here.
[21] S. Questionnaire, p. 10. Link here.
[22] John Wagner, Del. Arora announces he won’t seek re-election to Maryland House of Delegates, The Washington Post, (Nov. 1, 2013). Link here.
[23] How Did Your Legislators Vote on Life Issues in 2012?, Md. Right to Life, https://www.mdrtl.org/files/MARYLANDRIGHTTOLIFE2012ROLLCALLVOTES.pdf.
Judge Rushing sat on several panels reviewing cases involving compassionate release petitions during COVID-19, with mixed opinions.[24]
[24] See United States v. Brown, 853 F. App'x 840 (4th Cir. 2021). Link here; United States v. Carter, No. 21-6953, 2021 WL 5579184 (4th Cir. 2021). Link here; United States v. High, 997 F.3d 181, 185 (4th Cir. 2021). Link here.
Best meets the ten principles of a constitutional judge.
Rating: GreyNeutral. Record is not as fully developed. Cannot be rated as “green” or “red.”
Rating: RedFails to meet the ten principles of a constitutional judge.
AFA Action is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association.