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Judge Patrick Bumatay

Judge, U.S. Court of Appeals for the Ninth Circuit

Born: 1978

Appointed By: Donald Trump

Sworn In Date: December 20, 2019

CJR Status: Confirmed, Prospective

Red List Note

This prospect is designated as a red list candidate. The purpose of the “red list” designation is not to denigrate a prospect but rather to explain that serious concerns make them untenable given the availability of “green list” prospects that do meet the exceedingly high standard necessary for Supreme Court prospects.

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Topics

• In Brief

  Bumatay Belonged to the Tom Homann LGBT Law Association, a Group that Promoted Judicial Activism to Accomplish Their Leftist Political Agenda.^[1]

  Although Bumatay stated that he would leave the Tom Homann LGBT Law Association (hereafter “THLA”) when he became a judge^[2] and seems to have actually done so,^[3] his association with the group during a time when they held quite problematic positions is deeply concerning. Some of these positions include:

  • The THLA celebrated the judicially-activist Supreme Court opinion in S. v. Windsor which, while citing no support in the text of the constitution, purported to strike down the congressional “Defense of Marriage Act.” The THLA said: “In a historic day for LGBT rights and equality, the United States Supreme Court struck down the federal Defense of Marriage Act.”^[4]
  • The THLA “signed on as a co-author of an article focusing on the lack of LGBT representation in the California state and federal judiciary entitled, ‘The New Frontier of LGBT Equality: The California State and Federal Judiciary’….”^[5] THLA stated:

  “The LGBT community as a whole can make a difference by advocating for qualified LGBT judicial candidates during the judicial vetting process. ‘Many in the LGBT community feel that we simply need to do more. More political pressure, more lobbying, more identifying and mentoring our LGBT lawyers to become candidates for judges, and being more vocal about these issues…^[6]

   

  Bumatay was a Member of THLA When They Lobbied for Men to Serve in the Military While Claiming to be Women.

  Bumatay also should have been aware, at the time he joined THLA in “late 2017” of THLA’s June 2017 public announcement on its website demanding that the U.S. armed forces allow biological men who claim to be women to function as such in the military. The THLA “unequivocally denounce[ed] President Donald J. Trump’s decision to ban those in our transgender community from serving our nation in our armed forces ....” Also, the THLA condemned President Trump’s Justice Department for defending the textual fact that “LGBTQ individuals are not protected from discrimination under Title VII of the Civil Rights Act.”^[7]

   

  Along With His Problematic Membership in the THLA, Judge Bumatay Is or Was a Member Of Other Pro-LGBT Groups That Employ Judicial Activism to Accomplish Their Agenda.

  • Log Cabin Republicans: Bumatay was a member of the Log Cabin Republicans organization, joining their San Diego branch in 2012.^[8]
    • LCR has called the Defense of Marriage Act “an unconstitutional intrusion on states’ rights and a violation of individual liberty”^[9] while declaring the Supreme Court’s 2013 decision in United States v. Windsor, which stuck down DOMA, “a victory of conservative principles.”^[10]
    • LCR has remarked on Christian counseling of people struggling with homosexuality, stating that, “… the widely outdated and profoundly harmful idea of ‘reparative therapy,’ alleging that one can ‘pray the gay away,’ [is] not only demeaning to gays and lesbians, but [is] offensive to all people of faith.”^[11]
  • DOJ Pride: Bumatay was a member of DOJ Pride from 2008 to 2009.^[12] DOJ Pride promotes a compelled-speech agenda that requires verbal affirmation of LGBT lifestyles in the workplace.^[13]

   

  As a Judge, Bumatay Has a Mixed Record Which Makes Him an Untenable Prospect for the United States Supreme Court, Given the Availability of Excellent Prospects.

  • Bumatay dissented from a denial of rehearing en banc of a challenge to a Washington state ban on "conversion therapy" but expressed sympathy for concerns about the practice and seemed to limit his dissent to the particular fact pattern presented.
  • Bumatay wrote: “Many Americans and the State of Washington find conversion therapy – the practice of seeking to change a person's sexual orientation or gender identity – deeply troubling, offensive, and harmful. They point to studies that show such therapy ineffective. Even worse, they claim that conversion therapy correlates with high rates of severe emotional and psychological trauma, including suicidal ideation. Under the appropriate level of judicial review, these concerns should not be ignored.”^[14]
  • He continued: “But we also cannot ignore that conversion therapy is often grounded in religious faith. According to plaintiff Brian Tingley, a therapist licensed by the State of Washington, his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings. Tingley treats his clients from the perspective of a shared faith, which he says is conducive to establishing trust. And as part of his therapeutic treatment, Tingley counsels his clients to live their lives in alignment with their religious beliefs and teachings …. Indeed, Tingley only works with clients who freely accept his faith-based approach.”^[15]

  There are several concerns with Bumatay’s writings in Tingley. First, Bumatay deems the opposition of mental health professionals to the left’s “gender identity” propaganda as being “often grounded in religious faith,” without acknowledging that such perspective is also grounded in fact and science. Second, Bumatay’s opinion seems to limit a Christian counselor’s exercise of religious liberty only to situations in which the client shares the same faith as the counselor.^[16] 

  Lastly, Bumatay failed to join the strongest opinion in the case, which was written by Judge O’Scannlain and joined by Judges Ikuta, R. Nelson, and VanDyke. They contended that “[w]e should have granted rehearing en banc also to clarify that the regulation of the medical profession is not a First-Amendment-free zone.”^[17] 

   

  Bumatay Used Female Pronouns to Refer to a Biological Man.

  In Edmo v. Corizon, Bumatay did properly rule in favor of a prison that denied so called “sex-reassignment surgery” to an inmate. However, in the process he unscientifically referred to a biological man with female pronouns. Bumatay wrote: “Adree Edmo is a transgender woman suffering from gender dysphoria – a serious medical condition. While incarcerated in Idaho's correctional facilities, she asked that her gender dysphoria be treated with sex-reassignment surgery ("SRS"). After consultation with a prison doctor, her request was denied. She then sued under the Eighth Amendment.”^[18]

   

  ^[1] See Patrick Bumatay Senate Questionnaire p. 5, https://www.judiciary.senate.gov/imo/media/doc/Patrick%20Bumatay%20Senate%20Questionnaire%20(PUBLIC).pdf.

  ^[2] Patrick Bumatay, Answers to Questions for the Record from Senator Mike Lee, Nov. 5, 2019, at pages 55; https://www.judiciary.senate.gov/download/bumatay-responses-to-questions-for-the-record

  ^[3] See THLA Member Directory, https://www.thla.org/membership-account/directory/.

  ^[4] Michael Brant, U.S. Supreme Court Strikes Down DOMA, Dismisses Prop 8 Appeal, THLA (June 27, 2013), https://www.thla.org/u-s-supreme-court-strikes-doma-dismisses-prop-8-appeal/. The group also filed an amicus brief promoting an activist theory to use the courts to create LGBT social legislation and applauded the Obama administration for taking the same judicial activist legal position. See also Michael Brant, THLA Joins BALIF Amicus Brief in Hollingsworth v. Perry, THLA (March 19, 2013), https://www.thla.org/thla-joins-balif-amicus-brief-hollingsworth-v-perry/Michael Brant, Obama Administration Files Prop 8 Amicus Brief (Full Brief), THLA (March 1, 2013), https://www.thla.org/obama-administration-files-prop-8-amicus-brief-full-brief/.

  ^[5] Nicholas Fox, THLA Co-Authors Article on LGBT Judges in California Judiciary, THLA (July 14, 2015), https://www.thla.org/thla-co-authors-article-on-lgbt-judges-in-california-judiciary/  (emphasis added).   

  ^[6] Nicholas Fox, THLA Co-Authors Article on LGBT Judges in California Judiciary, THLA (July 14, 2015), https://www.thla.org/thla-co-authors-article-on-lgbt-judges-in-california-judiciary/  (emphasis added).   

  ^[7] Nicholas Fox, THLA Issues Statement on President’s Ban on Transgender Individuals in the Military, THLA (July 27, 2017), https://www.thla.org/issues-statement-presidents-ban-transgender-individuals-military/ (emphasis added.)
  

  ^[8] See Patrick Bumatay Senate Questionnaire p. 10. PDF: https://www.judiciary.senate.gov/imo/media/doc/Patrick%20Bumatay%20Senate%20Questionnaire%20(PUBLIC).pdf.

  ^[9] Log Cabin Republicans to GOP: Maintain Focus on the Budget, Don’t Take the Bait on DOMA, Log Cabin Republicans (March 4, 2011), http://www.logcabin.org/pressrelease/log-cabin-republicans-to-gop-maintain-focus-on-the-budget-dont-take-the-bait-on-doma/.

  ^[10] The full quote is: “Today’s ruling is a victory of conservative principles and admonishment of government overreach. … History is on our side, and the wind is at our backs. We’re not done yet — not by a long shot.” CLR, Log Cabin Republicans Responds to Supreme Court Marriage Rulings: “We’re Not Done Yet” June 26, 2013; see

  http://www.logcabin.org/pressrelease/log-cabin-republicans-responds-to-supreme-court-marriage-rulings-were-not-done-yet/

  ^[11] Ann Coulter’s Endorsement of ‘Reparative Therapy’ is a Bad Joke, Log Cabin Republicans (July 28, 2011), http://www.logcabin.org/pressrelease/ann-coulters-endorsement-of-reparative-therapy-is-a-bad-joke/.

  ^[12] See Senate Questionnaire p. 5, https://www.judiciary.senate.gov/imo/media/doc/Patrick%20Bumatay%20Senate%20Questionnaire%20(PUBLIC).pdf.

  ^[13] The publication is titled “LGBT Inclusion at Work: The 7 Habits of Highly Effective Managers” See https://dojpride.files.wordpress.com/2014/04/for-viewing-online-lgbt-tips-for-managers-brochure-accessible-fina.pdf ; referenced at the DOJ Pride website at: https://dojpride.org/about-2/.

  ^[14] Tingley v. Ferguson, Nos. 21-35815, 21-35856, 2023 U.S. App. LEXIS 1632, *1, 26-27 (9th Cir. 2023); PDF: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/01/23/21-35815.pdf. (emphasis added).

  ^[15] Tingley v. Ferguson, Nos. 21-35815, 21-35856, 2023 U.S. App. LEXIS 1632, *1, *7 (9th Cir. 2023); PDF: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/01/23/21-35815.pdf.  (emphasis added).

  ^[16] Tingley v. Ferguson, Nos. 21-35815, 21-35856, 2023 U.S. App. LEXIS 1632, *1, *27-28 (9th Cir. 2023); PDF: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/01/23/21-35815.pdf.  (emphasis added).

  ^[17] Tingley v. Ferguson, Nos. 21-35815, 21-35856, 2023 U.S. App. LEXIS 1632, *1, *6 (9th Cir. 2023); PDF: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/01/23/21-35815.pdf.  (emphasis added).

  ^[18] Edmo v. Corizon, Inc., 949 F.3d 489, 505 (9th Cir. 2020). PDF: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/10/19-35017.pdf PDF p. 35-36 (emphasis added).