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 Fifth Circuit
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Judge Duncan is a devout Catholic Christian. Duncan was out of the Catholic Church for about 20 years and returned to it around 2006.[1] Duncan elaborated, “After many years outside the church, I came back in. I did go through RCIA with my dear sainted wife, who did convert. I had First Communion when I was about 10. I wasn’t confirmed until I was 31, 32 years old. And I was a law professor at the time at the University of Mississippi, which is where we came into the church or back into the church. It was one week before Pope St. John Paul II died. And I chose as my patron saint, St. Thomas More.”[2] Catholic Saint Thomas More is important to Judge Duncan and serves as a role model to him as a Catholic judge.[3] Duncan believes that Madison was right that men need government. He said, “Madison’s point still holds, men are not angels and so they need government and they need separation of powers. And that’s why Justice Scalia was right about that.”[4] Judge Duncan has explained his philosophy of law. He said, “Law is really trying to get to the truth of something. I care about how to use the law, the Constitution, statutes, and regulations to order our lives together as a people.”[5] Judge Duncan is married with five children.[6]
[1] Defense of the Faith: A Forum on "Religious Liberty” (Part 3 of 4 - Kyle Duncan), YouTube, https://www.youtube.com/watch?v=o-qfS4Q7Z_w&t=0s at 3:00.
[2] Originalism and the Catholic Intellectual Tradition: A Jurist's Perspective, YouTube (Oct. 14, 2022), https://www.youtube.com/watch?v=8oKHF1StpVA at 25:38.
[3] Originalism and the Catholic Intellectual Tradition: A Jurist's Perspective, YouTube (Oct. 14, 2022), https://www.youtube.com/watch?v=8oKHF1StpVA at 26:36 (bold and emphasis added).
[4] Originalism and the Catholic Intellectual Tradition: A Jurist's Perspective, YouTube (Oct. 14, 2022), https://www.youtube.com/watch?v=8oKHF1StpVA at 42:29.
[5] Adriana Azarian, Judge Speaks on Studying Law, The Collegian (Mar. 9, 2023), https://hillsdalecollegian.com/2023/03/judge-speaks-on-studying-law/ (bold and emphasis added).
[6] Rosemary Westwood, Stuart Kyle Duncan: the Trump-appointed judge working to ban Louisiana abortions, AFJ (June 14, 2020), https://www.afj.org/article/stuart-kyle-duncan-the-trump-appointed-judge-working-to-ban-louisiana-abortions/.
Judge Duncan is outspoken on the importance of separation of powers as a safeguard to liberty. He has remarked, “I agree that our constitutional system of checks and balances is an indispensable means of ensuring that all three branches of the Federal government remain in their appropriate spheres of authority. That system provides a critical protection for all Americans’ freedom from the arbitrary abuse of government power.”[7] He is a self-proclaimed textualist who views the original public meaning as the starting point in understanding text. Judge Duncan has said, “Where the Supreme Court has interpreted specific constitutional provisions by seeking to discern their original public meaning, I would fully and faithfully follow those precedents.”[8] Duncan is also an advocate for the principles of federalism. Duncan wrote, “Federalism enhances collective freedom through ‘the diffusion of sovereign power.’ New York, 505 U.S. at 181. This diffusion enhances individual freedom by promoting self-government.”[9]
[7] S. Questions for Answer, p. 22 (bold and emphasis added) Question from Senator Leahy #16m.
[8] S. Questions for Answer, p. 1 (bold and emphasis added) Question from Senator Feinstein #1.
[9] Br. of La., Utah, Tex., Ala., Ariz., Ark., Ga., Idaho, Kan., Mont., Neb., N.D., Okla., S.D., and W. Va., at p. 21 (2015). Link to brief here (bold and emphasis added).
Duncan, a devout Catholic, has spoken frequently on faith as it relates to the public square.[10] Specifically, he has been a critic of the modern understanding of the Establishment Clause. When discussing the Establishment Clause and what is and is not the proper governmental relationship with religion, Duncan described, “The basic problem seems to be this: the circle of government actions forbidden by the [Establishment] Clause has been drawn too vaguely and too broadly — around something perhaps described as ‘bad relationships between religion and government.’ The circle needs to be far tighter — drawn in terms of ‘establishment’ as a legal construct and less as a cultural, sociological or theological construct; drawn in terms that restrain distinct institutional relationships between the state and actual ‘churches,’ instead of policing the vague boundaries between the ‘religious’ and the ‘secular.’”[11]
[10] Kathryn Jean Lopez, Religious Freedom Is No Mere Hobby: Shocking Arguments Made by Obama Administration in Largest HHS Mandate Suit Yet, Nat’l Rev. Online (Nov. 1, 2012). Link here; MetaBoss Marketing, Stuart Kyle Duncan: The Trump Appointed Judge Working to Ban Louisiana Abortions, The Guardian, para. 21, https://www.mediaboss.net/culture-wars/stuart-kyle-duncan-the-trump-appointed-judge-working-to-ban-louisiana-abortions-the-guardian.php.
[11] Kyle Duncan, The Establishment Clause and the Limits of Pure History, in The American Experiment Religious Freedom (Univ. of Portland 2008) (Hogan & Frederking, Eds.) at p. 197. Link here (bold and emphasis added).
Before his confirmation to the bench, Duncan demonstrated his promotion of religious liberty as an attorney working with the Becket Fund.[12] Duncan defended the right of religiously-motivated, for-profit employers to exercise their right to conscience in denying to provide certain contraceptive devices and abortifacients to their employees, writing, "The religious conduct at issue in these cases is familiar to any believer bound to avoid certain practices, whether Sabbath work, eating pork, or manufacturing the implements of war. The conviction that such practices must be avoided has precisely the same force whether the occasion for sin arises in a church, a charity, or a business. The believer’s conscience cries out for protection, even when he sells a product to make a living."[13]
[12] S. Questionnaire p. 32. Link here (emphasis added)
[13] Kyle Duncan, How Fares Religious Freedom?, First Things (Oct. 2013), Link here (bold and emphasis added).
Duncan has supported unborn life as both an attorney and a federal judge. While in private practice, Duncan represented the state of Louisiana in a suit to defend its law requiring abortionists to have local hospital admitting privileges.[14] Duncan has worked with the Bioethics Defense Fund, [15] "a pro-life public-interest legal and educational organization."[16] Duncan co-authored an amicus brief supporting Texas's abortion restrictions in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).[17] He also defended a Texas law requiring clinics that perform more than 300 abortions per year to register with the state.[18] In private practice, Duncan worked with the Becket fund to "defend the conscience of millions of Americans impacted by the HHS abortion-drug mandate" imposed under the Obama administration.[19] Duncan voted to allow a ban on abortions to take effect in Texas during the COVID-19 pandemic in the case In re: Abbott, despite a district court finding that it would cause “irreparable harm.”[20]
[14] Sue Lincoln, Admitting Privileges Law on Trial, WRKF (June 24, 2015). Link here.
[15] AFJ Nominee Report, Kyle Duncan, Alliance for Justice, at p. 1. Link to report here.
[16] About Us, Bioethics Defense Fund, https://bdfund.org/about-us/.
[17] Kyle Duncan, Naral Pro-Choice America (Nov. 19, 2017). Link here.
[18] Kyle Duncan, Naral Pro-Choice America (Nov. 19, 2017). Link here.
[19] Kyle Duncan, Abortion-Drug Mandate Unaffected by Delay of Obamacare's Employer Mandate, CNSNEWS (July 3, 2013), Link here (bold and emphasis added).
Duncan opposes the decision in Obergefell and condemns the government’s meddling in free speech and LGBTQ agendas. He has argued: "To be sure, Obergefell does not entirely omit mention of democratic debate. It gestures towards 'referenda, legislative debates, and grassroots campaigns.' But the majority seems to say that these things are valuable only to give the Court an 'enhanced understanding' of the issue, which it is now time to decide. That is an alarming theory of constitutional law."[21] As Louisiana Attorney General, Duncan defended a statute that prohibited adoption of children by unmarried couples, which included a homosexual male couple.[22] Duncan refuses the imposition of gender identity language by the government. Judge Duncan wrote the opinion in United States v. Varner, which stated, “First, no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity. Federal courts sometimes choose to refer to gender-dysphoric parties by their preferred pronouns.”[23]
[21] Kyle Duncan, Symposium: Overruling Windsor, SCOTUSblog (June 27, 2015). Link here (bold and emphasis added).
[22] Bill Barrow, State To Appeal Adoption Ruling, TIMES-PICAYUNE, Feb. 22, 2010, at B01, Link here.
[23] United States v. Varner, 948 F.3d 250 at 254-55 (5th Cir. 2020). Link here, PDF p. 5-6 (bold and emphasis added).
Duncan voted against upholding a federal law that threatened Second Amendment rights. In Mance v. Sessions (2018), Judge Duncan joined the dissents arguing against the majority's refusal to rehear the case en banc where a 5th Circuit panel upheld the constitutionality of a federal law that required firearms dealers to only sell guns to state residents.[24]
[24] Paul Gordon, Confirmed Judges, Confirmed Fears: Trump judges fume over the Second Amendment and vote to reconsider decision upholding federal gun law, PEOPLE FOR THE AMERICAN WAY (Oct. 19, 2018). Link here.
Judge Duncan moderated a panel about critical race theory.[25] As a judge, he also addressed First Amendment issues in the classroom. In 2021, Judge Duncan wrote the dissenting opinion in Oliver v. Arnold and argued that an assignment to transcribe the Pledge of Allegiance is not tantamount to “compelled speech.”[26] Duncan wrote: “We live in an easily offended age. Even Dr. Seuss is controversial… [S]uppose a teacher, hoping to pass on the legacy of Dr. Martin Luther King, Jr., asks students to transcribe his most famous speech. …Today, this aspiration of colorblindness has come under fire. May an offended student sue the teacher for being asked to copy Dr. King's words? Under the majority's approach, yes.”[27]
[25] See Classrooms, Curricula, and the Law, 2021 National Lawyers Convention, Federalist Society. Link here. Youtube Link here. YouTube Link here at 1:32:41-1:33:02.
[26] Oliver v. Arnold, 3 F.4th 152 (5th Cir. 2021) Link here, PDF p. 18.
[27] Oliver v. Arnold, 3 F.4th 152 (5th Cir. 2021). Link here, PDF p. 21-22 (bold and emphasis added).
No information has been located on this topic.
Duncan has been a longtime member of the Federalist Society and an active participant over a 16-year period.[28] As a professor at the University of Mississippi Law School, Duncan was the Faculty Advisor for the Catholic Law Student Association.[29] He has also been a member of the D.C. Board of Regents at Thomas Aquinas College since 2016.[30] Judge Duncan was a member of the Study Committee on Proposed Religious Freedom Amendment to Louisiana Constitution as representative of the Louisiana Attorney General's office.[31] He has been a member of the Knights of Columbus since 2005.[32] Duncan was a poll watcher for Mitt Romney’s presidential campaign in 2012.[33] Lastly, Duncan was a member of the religious liberty advisory board for Marco Rubio’s presidential campaign.[34]
[28] S. Questionnaire p. 5-28. Link here; S. Questions for Answer, p. 30 Question from Senator Durbin #19c; Past Events, The Federalist Society. Link here.
[29] S. Questionnaire p. 6. Link here.
[30] S. Questionnaire p. 5. Link here.
[31] S. Questionnaire p. 5. Link here.
[32] S. Questionnaire p. 5. Link here.
[33] Justicefortexas, Court of Appeals for the Fifth Circuit Judge Kyle Duncan holds Memberships with the Knights of Columbus and the Federalist Society, Laws In Texas (July 22, 2019). Link here.
[34] Justicefortexas, Court of Appeals for the Fifth Circuit Judge Kyle Duncan holds Memberships with the Knights of Columbus and the Federalist Society, Laws In Texas (July 22, 2019). Link here.
Duncan has been outspoken regarding principles of limited government.[35] Duncan has shown support for voter-ID laws and upheld vote integrity during COVID-19.[36] He also supported bodily autonomy and disfavored government overreach regarding the COVID-19 vaccine. As a judge for the 5th Circuit, Duncan signed on to an order written by Judge Engelhardt to block the implementation of OSHA’s emergency temporary standard for COVID-19 vaccination.[37] The opinion states: “It is clear that a denial of the petitioners’ proposed stay would do them irreparable harm. For one, the Mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).”[38] Judge Duncan was also on a 5th Circuit panel that issued a per curiam opinion denying the DOD’s motion to stay a district court's preliminary injunction which prevented it from enforcing certain COVID-19 vaccination requirements against navy personnel.[39] The per curiam opinion held, "Accepting the vaccine would directly burden their respective faiths by forcing them to inject an unremovable substance at odds with their most profound convictions"[40] finding that "These circumstances impose a substantial burden on Plaintiffs."[41]
[35]Defense of the Faith: A Forum on "Religious Liberty” (Part 3 of 4 - Kyle Duncan) (May 28, 2012) YouTube Link here, at 41:17-42:17 (emphasis added).
[36] Texas League of United Latin Am. Citizens v. Hughs, 978 F.3d 136 (5th Cir. 2020). PDF Link here.
[37] BST Holdings, L.L.C. v. Occupational Safety & Health Admin., U.S. Dep't of Lab., 17 F.4th 604 (5th Cir. 2021), Link here.
[38] BST Holdings, L.L.C. v. Occupational Safety & Health Admin., U.S. Dep't of Lab., 17 F.4th 604, 618 (5th Cir. 2021), Link here, PDF p. 18-19 (bold and emphasis added).
[39] U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336 (5th Cir. 2022). Link here.
[40] U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336, 350 (5th Cir. 2022). Link here, PDF p. 23-24) (bold and emphasis added).
[41] U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336, 350 (5th Cir. 2022). Link here, PDF p. 23-24.
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.