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 Ninth Circuit
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VanDyke is a 2002 graduate of the Bear Valley Bible Institute at which he received a bachelor’s degree in theology.[1] He also attended Oklahoma Christian University from 1992-1995, but no degree was conferred.[2] He belonged to the Buckingham Road Church of Christ in Garland, Texas from 2007-2012, and was a member of the Mission Committee at the church from 2009-2012.[3]
Judge VanDyke interned for ADF and was a Blackstone fellow.[4]
VanDyke supports the teaching of biblical creationism in schools.[5] He stated during his confirmation hearing, “It is a fundamental belief of mine that all people are created in the image of God, and they should all be treated with dignity and respect.”[6]
[1] S. Questionnaire p. 1. Link here.
[2] S. Questionnaire p. 4. Link here.
[3] S. Questionnaire p. 6. Link here.
[4] “Lawrence VanDyke”, NARAL Pro-Choice America, https://www.prochoiceamerica.org/wp-content/uploads/2020/01/Lawrence-VanDyke_NARAL_110419-Updates.pdf (bold and emphasis added).
[5] Lawrence VanDyke, Not Your Daddy’s Fundamentalism: Intelligent Design in the Classroom, 117 Harv. L. Rev. 964-971 (2004). Retrieved from JSTOR. https://doi.org/10.2307/4093466.
[6] Senator Hawley at the Judicial Nomination of Lawrence VanDyke, YouTube, https://www.youtube.com/watch?v=i4HQXM2zLss, at 3:50-4:01.
VanDyke has expressed respect for Supreme Court precedent as a Circuit Judge, as well as an appreciation for judicial restraint. He has said, “My role as a [state] Supreme Court justice would be different, obviously. Legislators make the law. Justices apply the law; they shouldn’t be legislating from the bench.”[7] Judge VanDyke believes, “It is never appropriate for lower courts to depart from Supreme Court precedent.”[8]
When asked about circuit court judges questioning Supreme Court precedent, Judge VanDyke stated, ‘It may be appropriate, at times, for a circuit judge to identify areas in which Supreme Court cases appear to be inconsistent or in conflict.’…But the Supreme Court has also made clear: ‘If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’[Citation omitted]. Circuit judges must always follow those instructions.”[9]
In Boule v. Egbert, VanDyke joined a dissent from denial of rehearing en banc in a case creating a judicially-invented cause of action under the precedent of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which first recognized an implied cause of action under the Fourth Amendment.[10]
[7] VanDyke Responses to QFRs, Question 3 (bold and emphasis added).
https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20Responses%20to%20QFRs.pdf.
[8] VanDyke Responses to QFRs, Question 21(a).
https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20Responses%20to%20QFRs.pdf.
[9] VanDyke Responses to QFRs, Question 21(b) (bold and emphasis added).
https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20Responses%20to%20QFRs.pdf.
[10] Boule v. Egbert, 998 F.3d 370 (9th Cir. 2020). Link here.
VanDyke joined a brief claiming the Establishment Clause does not bar simply having religious content or promoting a message consistent with religious doctrine. The brief stated, “The First Amendment bars the select sandblasting of religious symbols from the public square.”[11] It also stated, “Plainly, ‘simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.’”[12]
[11] Freedom From Religion Foundation, Inc., v. Chip Weber, “Brief of the State of Montana and the American Legion as Amici Curiae in Support of Appellees and Affirmance,” at p. 12, https://ffrf.org/uploads/legal/shrine-montana-american-legion.pdf (bold and emphasis added).
[12] Freedom From Religion Foundation, Inc., v. Chip Weber, “Brief of the State of Montana and the American Legion as Amici Curiae in Support of Appellees and Affirmance,” at p. 18, https://ffrf.org/uploads/legal/shrine-montana-american-legion.pdf (bold and emphasis added).
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Even in the pre-Dobbs world, VanDyke advocated for some abortion bans. The VanDyke Questionnaire stated: “As Montana Solicitor General, [VanDyke] filed an amicus brief in the Supreme Court defending Arizona law which banned abortion after 20 weeks.”[13] VanDyke also recommended joining an amicus brief which argued that for-profit organizations should be exempt from the Affordable Care Act’s contraceptive coverage requirement. NARAL Pro-Choice America wrote: “As Montana solicitor general, VanDyke recommended that Montana join an amicus brief in the Hobby Lobby case that argued that certain for-profit corporations should be exempt from the Affordable Care Act’s contraceptive coverage requirement.”[14]
[13] VanDyke Responses to QFRs, Question 11 (bold and emphasis added).
https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20Responses%20to%20QFRs.pdf.
[14] “Lawrence VanDyke,” NARAL Pro-Choice America, https://www.prochoiceamerica.org/wp-content/uploads/2020/01/Lawrence-VanDyke_NARAL_110419-Updates.pdf.
Judge VanDyke authored an opinion holding that the Miss USA organization was not required to allow a man who went by the name Anita Noelle Green to compete in its pageant. VanDyke wrote, “As with theater, cinema, or the Super Bowl halftime show, beauty pageants combine speech with live performances such as music and dancing to express a message. And while the content of that message varies from pageant to pageant, it is commonly understood that beauty pageants are generally designed to express the ‘ideal vision of American womanhood.’”[15] VanDyke continued, “[T]he Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants.”[16]
VanDyke has written about the impact on children of being raised in a homosexual home. He did not apologize for these views when pressured. VanDyke wrote an op-ed in 2004 concerning the effects of children raised in homosexual homes.[17] When asked about whether he would renounce his statement referring to such marriages as “hurt[ing] families and consequently children and society,” VanDyke replied, “As referenced in the question, there has been additional research in the intervening 15 years, but I have not reviewed that research and therefore do not have an informed opinion as to the current state of that research. There have been significant legal developments in this area of the law in the intervening 15 years, and, as in every area of the law, if confirmed I am committed to faithfully applying all precedent.”[18]
He has explicitly claimed there is a collision course between religious freedom and gay rights and has declared that religious liberty cannot be trumped by gay rights. During his time as Montana solicitor general, VanDyke recommended the state file a brief in a New Mexico case about a photographer who refused to provide services to same-sex couples. VanDyke stated, “I think this is an important case for the future of religious freedom in America.” He went on to explain, “This is an important case because there is a fairly obvious collision course between religious freedom and gay rights, and this case could be very important in establishing that gay rights cannot always trump religious liberty.”[19]
[15] Green v. Miss USA, 52 F.4th 773 (2022). Link here. PDF p. 8-9.
[16] Green v. Miss USA, 52 F.4th 773 (2022). Link here. PDF p. 9.
[17] Lawrence VanDyke, One Student’s Response to “A Response to Glendon,” Harv. L. Rec. (Mar. 11, 2004), https://hlrecord.org/one-students-response-to-a-response-to-glendon/. See also VanDyke Responses to QFRs, Questions from Senator Feinstein Question 10 (bold and emphasis added), https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20Responses%20to%20QFRs.pdf.
[18] VanDyke Responses to QFRs, Questions from Senator Feinstein Question 10(b) (bold and emphasis added). https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20Responses%20to%20QFRs.pdf.
[19] Email from VanDyke as solicitor general of Montana to James Julie (Dec. 5, 2013), https://s3.documentcloud.org/documents/1284252/foi-request-re-montana-solicitor-sept-2014.pdf at 499-502 (bold and emphasis added).
Judge VanDyke advocated for Second Amendment rights even when threatened during a national crisis such as COVID-19. Josh Blackman wrote, “Judge VanDyke wrote that ‘the need for armed protection in self-defense can arise at a moments' notice and without warning.’ And, he observed, this fact ‘is particularly true in these turbulent times of rising crime rates and mass police resignations due to low morale and the onslaught of legislative reform.’ The Founders, Judge VanDyke observed, understood ‘the acute need for Second Amendment rights during temporary crises.’ The Second Amendment ‘itself becomes meaningless when it is needed most - especially to the victims of attacks,’ if ‘the government suspends these rights during times of crises.’”[20]
VanDyke was also a member of the National Rifle Association. Judge VanDyke stated on his 2014 NRA Candidate questionnaire that he believed all “gun control laws are misdirected” and that he opposed banning the sale or possession of any firearm. He also indicated that he would like to support legislation to repeal state restrictions on carrying guns in places such as banks, government office buildings, places where alcohol is served, and college campuses.[21]
[20] Blackman, Josh, ARTICLE: THE ‘ESSENTIAL’ SECOND AMENDMENT, 26 Tex. Rev. Law & Pol. 159, 199. Link here (bold and emphasis added).
[21] VanDyke Responses to QFRs, Question 3 (bold and emphasis added). https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20Responses%20to%20QFRs.pdf.
VanDyke has been a proponent of teaching intelligent design in public schools. VanDyke outlined the arguments for teaching intelligent design in public schools in a student note for the Harvard Law Review. VanDyke wrote, “This group, known as the intelligent Design (ID) movement, also insists that ‘intelligent agency’ provides an origins paradigm that is better supported by the empirical evidence and gives greater coherence to our scientific observations and philosophical intuitions than does the philosophy of methodological naturalism (MN) underlying evolutionary orthodoxy [citation omitted].”[22]
[22] Lawrence VanDyke, Not Your Daddy’s Fundamentalism: Intelligent Design in the Classroom, 117 Harv. L. Rev. 964, 965 (2004). Retrieved from JSTOR. https://doi.org/10.2307/4093466 (bold and emphasis added).
No information has been located on this topic.
VanDyke has shown a commitment to biblical and conservative values since his time as a law student. The Alliance for Justice wrote, “Throughout his career, Lawrence VanDyke has shown his dedication to serving partisan interests at the expense of clean air, clean water, reproductive rights, LGBTQ equality, criminal justice, and education.”[23] Prior to being appointed to the Ninth Circuit by Trump, Lawrence VanDyke served as the Solicitor General of Montana and Nevada.[24] Public emails from his time as SG of Montana indicate that VanDyke was much more interested in poring through briefs from other states, including those concerning gun safety measures (like those attacking bans on semiautomatic weapons), defending abortion bans, bans on same-sex marriage, and attacking access to contraceptives. He was given an unqualified rating by the American Bar Association because it concluded from interviews with former colleagues that he is ‘arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.’”[25] Dean of the Regent University School of Law Bradley Lingo wrote of VanDyke, “He graduated magna cum laude and joined me at the firm. He still had the same earnest, cheerful, almost-overly-friendly, eager demeanor he had the first day I met him. Harvard hadn’t changed him a bit. Strike that. Harvard had changed him in one respect: The gentle giant from Montana was now laser-focused on appellate litigation and valued well-written legal briefs the way others value fine art.”[26]
[23] “Lawrence VanDyke,” Alliance for Justice, https://www.afj.org/nominee/lawrence-vandyke/ (bold and emphasis added).
[24] “Lawrence VanDyke,” Alliance for Justice, https://www.afj.org/nominee/lawrence-vandyke/ (bold and emphasis added).
[25] “Lawrence VanDyke,” Alliance for Justice, https://www.afj.org/nominee/lawrence-vandyke/ (bold and emphasis added).
[26] See Bradley Lingo, “What I Wish I Told the ABA about Lawrence VanDyke,” National Review, https://www.nationalreview.com/2019/11/what-i-wish-i-told-the-aba-about-lawrence-vandyke/ (bold and emphasis added).
VanDyke wrote that closures of gun shops, ammunition shops, and firing ranges during COVID-19 violated the Second Amendment.The majority opinion in McDougall v. City of Ventura, of which VanDyke was a part of, determined that the 48-day closure of gun shops, ammunition shops, and firing ranges in Ventura, California burdened conduct protected by the Second Amendment, based on a historical understanding of the scope of the Second Amendment right. VanDyke wrote a concurring opinion clarifying, “‘[T]he right of the people to keep and bear arms’ means nothing if the government can prohibit all persons from acquiring any firearm or ammunition. … When COVID hit, Ventura County, California issued a series of public health orders that mandated a 48-day closure of gun shops, ammunition shops, and firing ranges. They did this while allowing other businesses like bike shops to remain open.” [27]
[27] McDougall v. Cty. of Ventura, 23 F.4th 1095 (9th Cir. 2022). Link here (bold and emphasis added).
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.