© 2024 Allbritton Journalism Institute
Plaintiffs and supporters pose for pictures outside of the Fifth Circuit Court of Appeals.
Plaintiffs and supporters pose outside of the Fifth Circuit Court of Appeals, Jan. 9, 2015, in New Orleans. Stacy Revere/AP

Inside a Federal Judge’s Cozy Ties to an Anti-Gay Marriage Think Tank

Fifth Circuit Judge Edith Brown Clement takes annual trips funded by a think tank that advocates for overturning gay marriage. She also ruled on a panel last year that a Christian business was allowed to discriminate against gay people.

Plaintiffs and supporters pose outside of the Fifth Circuit Court of Appeals, Jan. 9, 2015, in New Orleans. Stacy Revere/AP

For the past three years, 5th Circuit Court of Appeals Senior Judge Edith Brown Clement has taken an annual trip to Princeton University funded by a think tank called The Witherspoon Institute.

Last year’s trip was a milestone: The Witherspoon Institute celebrated its 20th anniversary with a dinner and keynote focused on how “cancel culture” is real. Clement spent two days in Princeton during which the institute paid for and provided transportation, lodging and meals.

The institute bills itself as a space for philosophy and debate. This year, its curriculum for students included a seminar on whether men and women can be just friends, a selected reading of Summa Theologica and a discussion on the “foundations of Judeo-Christian moral tradition.”

It is also a home for anti-gay marriage advocacy, with a nearly $3 million annual operating budget and about $12 million in assets.

Ethics experts told NOTUS that having the institute fund Clement’s travel likely doesn’t rise to the level of a formal ethical violation under the judicial code of conduct. But it does fuel questions of judicial impartiality — particularly on the New Orleans-based 5th Circuit, widely viewed as the friendliest bench for conservative causes. As the cozy relationship between Supreme Court justices and key players in the conservative movement becomes clearer, Clement’s close relationship with a group advocating against LGBTQ+ rights lays bare the fuzziness of what a judge should and should not participate in — and just how broad the gray areas can be in the world of judicial ethics.

“You shouldn’t be involving yourself in extrajudicial activities that essentially calls your impartiality into question or will result in frequent disqualification,” Indiana University ethics expert Charles Geyh told NOTUS.

“The question you have to ask is whether this judge’s participation in The Witherspoon Institute would sort of call the judge’s impartiality into question. I think that that depends in no small part on what their participation is.”

Clement has been on the federal bench for 23 years; she rose to national prominence in 2005, when she was a top contender for the Supreme Court seat that ultimately went to now Chief Justice John Roberts. (So much so that the Senate Judiciary Committee had issued an embargoed statement congratulating her for the nomination).

During that time, Clement has ruled on cases on LGBTQ+ rights, most recently last year, as part of a three-judge panel siding with a Christian business that sought a religious exemption from federal law banning discrimination against people based on sexual orientation or gender identity.

She has also been a longtime friend of The Witherspoon Institute, according to both its president and as detailed in a decade of financial disclosure reports reviewed by NOTUS showing annually funded trips in the early 2010s and over the past three years.

In its most high-profile moment in its two-decade history, the institute funded a widely criticized 2012 study asserting adverse outcomes for kids of gay parents, which was referenced in the Supreme Court’s Defense of Marriage Act case. Since 2013, the institute has housed and funded a project called CanaVox, which advocates for “natural law” marriages — those only between a man and a woman.

In 2010, 2011, 2012 and 2013, the Witherspoon Institute paid for Clement to speak to the organization. Over the past three years, the institute paid for Clement to go to Princeton for what Clement described in financial disclosure forms as “advisory council” meetings. Luis Tellez, The Witherspoon Institute’s president, said the organization does not have an advisory council and that Clement plays no formal role at the institute.

Based on the dates of the trips, Tellez surmised that the institute paid for her trips to attend separate advisory meetings of the James Madison Program at Princeton, where she is on a formal advisory board alongside conservative mega-donor Harlan Crow and his wife, Katherine. The Witherspoon Institute, also based in Princeton, New Jersey, often holds dinners on the same weekends as the university program’s meetings. Clement did not respond to a request for comment.

The James Madison Program also is a conservative organization, although it is expressly focused on legal issues. Judges across the ideological spectrum often give speeches or involve themselves with law-focused academic programs.

This practice has come under some scrutiny; in 2020, the Judicial Conference of the U.S. proposed banning judicial involvement in progressive or conservative ideological legal groups like the Federalist Society or the American Constitution Society. But, the effort was tossed following backlash primarily from conservative judges. The Federalist Society also defended membership, asserting it takes no policy positions. Associated and like-minded groups, however, author a significant percentage of amicus briefs, many of which have been cited in the Supreme Court’s major opinions.

Clement’s advisory role with the James Madison Program shares a similar dynamic. But her close ties to the Witherspoon Institute are distinct. While the two organizations are closely linked, sharing multiple board members and trustees, the James Madison Program does not have the same clear policy positions on LGBTQ+ issues as the institute.

“The less it feels like straight-up education and the more it feels like advocacy and policy taking, the harder it’s going to be to say it’s fine for judges,” Geyh said.

Tellez told NOTUS that the Witherspoon Institute is not a political advocacy group. He also said it is driven by two principles: “Respect for every individual” and the belief that the “basic and fundamental unit of society is a family of a man and a woman in a permanent union for the benefit of the children.”

“We think that some laws have to be changed and some laws should be maintained, that’s an argument worth having, but we don’t have it – we don’t do that at the Witherspoon Institute,” he said.

Some reports point to the contrary. The American Independent found that the “Witherspoon Institute recruited a professor from a major university to carry out a study that was designed to manipulate public policy” in 2012 when the Supreme Court ruled in the Defense of Marriage case.

More recent publications from Witherspoon’s marriage-focused arm CanaVox say, “We take a firm stand against same-sex civil marriage, which, despite good intentions, enshrines in law the idea that children don’t need both a mother and a father.” (April Readlinger, the executive director of CanaVox, also briefly clerked under Clement in the 90s. She did not respond to an emailed request for comment).

The Witherspoon Institute-funded trips, “would raise very serious concern about the fairness of a case that goes up in the 5th Circuit with LGBTQ+ litigants or issues,” Ethan Rice, senior attorney at the LGBTQ+ advocacy law firm Lambda Legal, told NOTUS.

The 5th Circuit, which hears cases from Texas, Louisiana and Mississippi, has been a testing ground for much of the conservative movement’s most galvanizing issues, like abortion rights, gun laws, separation of church and state, and affirmative action. Just five of 17 active judges, and three of seven senior judges, on the court were nominated by Democrats.

Rice pointed to Clement’s Fifth Circuit colleague Donald Trump nominee Stuart Kyle Duncan — who repeatedly misgendered a trans litigant before denying her request to legally change her name while incarcerated — as an example of a 5th Circuit conservative “activist” judge.

Clement does not currently have the same reputation. One former director of the Federal Judicial Center, Jeremy Fogel, who knew Clement personally, told NOTUS, “She’s always been a conservative judge, and she’s voted that way on panels, but not in a way where she’s really abandoned her judicial modesty.”

A NOTUS review of the past two years of financial disclosure forms from Fifth Circuit judges showed Clement’s Witherspoon Institute-funded travel does, however, stand out among colleagues. Most of the dozens of privately funded trips were funded by universities or legal groups. The few exceptions: Duncan took a trip funded by the Heritage Foundation in 2022, and another judge, Andrew Oldham, with the American Enterprise Institute in 2022.

There is room within the federal Code of Conduct for judges to accept reimbursement of travel, “if the source of the payments does not give the appearance of influencing the judge in the judge’s judicial duties or otherwise give the appearance of impropriety.” But the symbiotic relationship between outside groups like the Witherspoon Institute and active members of the judicial system like Clement still gives those who argue before the Fifth Circuit pause.

“I still don’t know, necessarily, if this would rise to a disqualification level that the court would find,” Rice said. “But in my mind, in a case that was about LGBTQ+ issues ... I would be highly concerned.”

Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow.