Daniel Bice

Milwaukee Journal Sentinel

State Supreme Court candidate Brian Hagedorn has just reversed himself.

In the past, Hagedorn has taken what scholars say is an unconventional and even radical position that the U.S. Constitution leaves it to the states to decide such issues as leading prayer in schools and installing religious monuments in courthouses.

Hagedorn has even gone so far as to argue that there is nothing in the Constitution that would prohibit a state from declaring its own official religion.

But when asked about these past writings, Hagedorn — already under fire for comments on gay rights — said this week he has changed his mind on this bedrock legal issue of separation of church and state.

The appeals court judge said he now believes the federal government has the authority under the U.S. Constitution to step in if it believes a state has gone too far in establishing an official religion or favoring one over another.

"Under current doctrine, it is clear no state may establish their own religion," Hagedorn clarified in an email to the Journal Sentinel on Tuesday.

Hagedorn's legal about-face brought criticism from his opponent's campaign and other foes. They suggested that the self-described originalist has now become a political pragmatist.

"Brian Hagedorn's can't hide from his radical and extreme agenda," said Tyler Hendricks, campaign manager for appeals court Judge Lisa Neubauer, when informed of Hagedorn's change of heart.

"It's hard to put much faith in Brian Hagedorn's election season change of heart," said Joanna Beilman-Dulin, research director for the liberal group One Wisconsin Now.

Hagedorn, who is favored by conservatives, faces off against Neubauer, a liberal darling, in a crucial Supreme Court contest on April 2.

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If Neubauer were to win, liberals would be in prime position to seize control of the high court when the next seat comes up in 2020 — when Democrats expect a strong turnout during Wisconsin's presidential primary.

In the current race, Hagedorn has found himself on the defensive over what some see as his discriminatory views on gay rights issues.

On a blog he wrote a dozen years ago, Hagedorn wrote that a Supreme Court ruling overturning an anti-sodomy law opened the door to the legalization of bestiality and sex with animals, and called Planned Parenthood a "wicked organization."

He also founded a school that can ban teachers and students in gay relationships and gave paid speeches to a legal organization that has argued in favor of anti-sodomy laws.

In response, Hagedorn has argued that he is under attack because of his evangelical Christian faith. He has yet to say whether he still holds many of the positions he has taken on controversial subjects over the years.

A 180-degree turn

But on Tuesday, the conservative jurist did the judicial equivalent of a 180-degree turn on the so-called Establishment Clause of the First Amendment to the U.S. Constitution. That provision prohibits the government from establishing an official religion or giving preference to one faith. The rest of the First Amendment guarantees freedom of religion and speech.

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In his 2015 application to become an appellate judge, Hagedorn wrote that the Establishment Clause was "at least in large part, a federalism provision leaving regulation of religion to the states." He accused judges of using the constitutional ban on establishing religions to impose their views on society.

"Establishment Clause jurisprudence generally looks very little like law," Hagedorn, who was appointed to the appellate bench by then-Gov. Scott Walker, wrote in response to a question about bad Supreme Court decisions from past 30 years.

"Much of it has the symptoms of a Court discussing desirable social policy or the proper place of religion in public life, and then crafting a legal rule that makes sense in light of that policy. This is not how judges should make law."

That was a more nuanced position than the one Hagedorn took in his old blog, which he wrote when he was a 27-year-old law student, law firm intern and father of two children.

In a July 2005 post, he wrote that the federal Constitution made clear in the Establishment Clause that "states can do whatever they want on religion and the federal government was not going to intervene."

To clarify, he added that the federal Constitution doesn't prohibit states from installing religious monuments in their courthouses or establishing their own official religions, including secular humanism, which he considered a belief system.

"The Constitution, in my opinion, would not prohibit Maine from declaring secular humanism its state religion," he wrote. "The point of my post is not to argue that Christianity should be our state religion. It is simply to point out that pretty much all Establishment Clause cases decided by the Supreme Court, including the most recent 10 Commandment cases, have absolutely no foundation in the Constitution at all."

He then endorsed more religion in public life. He said removing religion from this arena would create a society opposed to faith.

"A secular public sphere is not only not neutral, it is (and is in reality now) antagonistic toward people of faith," Hagedorn wrote. "That's why we're fighting back."

What scholars say

Constitutional scholars say Hagedorn's past writings ran counter to nearly 100 years of Supreme Court precedent.

They said this week that the high court has explicitly applied or "incorporated" the protections in the Bill of Rights — including the ban on establishing a religion — to all of the states as a result of the passage of the 14th Amendment in 1868.

"Very few consider this an open, viable question today," said Scott Idleman, a Marquette Law School professor specializing in law and religion who has donated to Walker in the past. "It's really water under the bridge."

Howard Schweber, a constitutional law professor at the University of Wisconsin-Madison, went a step further, saying Hagedorn's past writings on this issue represent a "radical position and one far outside the mainstream."

"These are fringe views even among conservatives," Schweber said.

But now it appears that Hagedorn has undergone a road-to-Damascus moment.

In a Tuesday email to the Journal Sentinel, Hagedorn said he no longer espouses his old views, even as he downplayed the significance of the issue.

"While this discussion is mostly academic, my position on incorporation of the Bill of Rights has shifted," Hagedorn wrote, without specifying when this happened.

He said he now believes the "original public meaning" of the 14th Amendment incorporated the Bill of Rights, including the Establishment Clause, and applied them to the states. He added that he reaches that conclusion differently than most others.

Contrary to Idleman, Hagedorn said this is not a settled issue but the subject "of lively, ongoing debate among constitutional scholars and courts."

"That said, my goal in any case raising this question would be to follow the governing precedent of the U.S. Supreme Court," Hagedorn wrote.

And just so his 2005 blog post on this issue isn't misconstrued, Hagedorn added that as a matter of public policy, he believed even back then that it would be "a very bad idea" for any state to establish an official religion.

"What is constitutional and what is good public policy are two very different questions," he said on Tuesday — a distinction he has previously made regarding legalization of bestiality.

Contact Daniel Bice at (414) 224-2135 or dbice@jrn.com. Follow him on Twitter @DanielBice or on Facebook at fb.me/daniel.bice.