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
Click below to download more research data for The Honorable Lawrence VanDyke.
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VanDyke expressed respect for Supreme Court precedent as a Circuit Judge, as well as appreciation for judicial restraint. He 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.”
Even more laudably, Judge VanDyke dissented from a majority despite preferring its conclusion. VanDyke wrote, “This is not an easy interpretive case, and I personally like the majority's conclusion better than mine. . . . A statute that [does what the majority claims] may be what this country needs, but it isn't what Congress gave us in [the relevant section]. And it's not my role to transform this statute into what I wish it was.”
When he was solicitor general of Montana, VanDyke joined a brief asserting the Establishment Clause does not always require exclusion of religious symbols and messages in public spaces. The brief stated, “The First Amendment bars the select sandblasting of religious symbols from the public square.” The brief VanDyke joined also stated, “Plainly, ‘simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.’”
VanDyke appropriately blasted the Ninth Circuit for its use of an overbroad test for an Establishment Clause violation.
VanDyke authored an opinion that gave religious organizations broad freedom in their selection of ministers. He argued that “the ministerial exception protects the ‘freedom of a religious organization to select its ministers.’. . . [T]he exception broadly ensures that religious organizations have the freedom to choose ‘who will preach their beliefs, teach their faith, and carry out their mission.’”
Even pre-Dobbs, VanDyke advocated for abortion bans. As Montana Solicitor General, VanDyke filed an amicus brief in the Supreme Court defending an Arizona law that banned abortion after 20 weeks.
Following the Dobbs decision, VanDyke wrote an order for the 9th Circuit upholding an Idaho law prohibiting abortion in all but a few circumstances. VanDyke wrote, “Idaho enacted [its abortion ban] to effectuate that state's strong interest in protecting unborn life. That public interest is undermined each day [its abortion ban] remains inappropriately enjoined.”
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.’” VanDyke continued, “[T]he Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants.”
VanDyke has explicitly claimed there is a conflict between religious freedom and gay rights and has declared that religious liberty cannot preempted 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 for a “same-sex commitment ceremony.” 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.”
VanDyke is a 2002 graduate of the Bear Valley Bible Institute where he received a bachelor’s degree in theology.
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.”
Judge VanDyke advocated for Second Amendment rights, even during 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.’”
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.
VanDyke has been a proponent of teaching intelligent design in public schools. 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].”
As Solicitor General of Nevada, VanDyke defended separation of power principles against administrative overreach. At a Constitution Day event in 2016, VanDyke defended his actions as Nevada’s Solicitor General, affirming that his office’s challenges to administrative agencies “[were] driven by the view that there’s specific roles for the government.” He further expressed his support for his attorney general’s view that “what [he’s] against is unconstitutional, unilateral, federal executive action. Obama said that he couldn’t do this, and now he’s doing it.”
VanDyke has demonstrated a strong commitment to biblical and conservative values since his time as a law student. The radical group Alliance for Justice has criticized VanDyke for promoting constitutional positions on the subjects of the environment, life, the LGBTQ agenda, criminal justice, and education. 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.”
Judge VanDyke wrote that closures of gun shops, ammunition shops, and firing ranges during COVID-19 violated the Second Amendment. Judge VanDyke authored the majority opinion in McDougall v. City of Ventura, in which he explained 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.”
*Citations are available in the downloadable PDF research document above.
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.