Missouri AG contender has deep religious liberty legal roots

Missouri has a rare entry into its race for attorney general: a former Supreme Court clerk who has gone on to work as counsel on major Supreme Court cases like Burwell v. Hobby Lobby.

Josh Hawley, who clerked for Chief Justice John Roberts in 2006 and 2007, won an upset in Missouri’s Republican primary Tuesday. He ousted the favorite, state Sen. Kurt Schaefer, who had the more typical prestigious political background for these kinds of seats. In addition to two terms in the Senate, Schaefer worked for Gov. Jay Nixon, a Democrat, when he was the state’s attorney general in the 1990s. Hawley is 36, Schaefer is 50.

Hawley said he thinks states need attorneys general with constitutional law experience now more than ever.

“That’s a vital part of being the attorney general in this day and age, when the greatest threat to the everyday wellbeing—to farmers and families and religious ministry—is this unprecedented overreach,” he told me. “It is vital that states attorneys general stand up for the right of their people, and go to court to defend it.”

Hawley has folios of constitutional experience. He grew up in Missouri, completed his undergraduate at Stanford University, and attended law school at Yale University. He clerked for Judge Michael McConnell on the 10th U.S. Circuit Court of Appeals, one of the preeminent legal minds on religious liberty. Since retiring as a judge, McConnell has argued religious liberty cases at the Supreme Court and founded a religious liberty law clinic at Stanford.

After that, Hawley clerked for Roberts, where he met his wife, Erin Morrow Hawley, a fellow Roberts clerk. They now have two boys, ages 3 and 1. I asked if he had played on the justices’ private basketball court inside the Supreme Court.

“The highest court in the land?” he laughed. He has played hoops there but said the ceiling is low—“can’t get much arc.”

Coming from the chambers of the Supreme Court where the justices are all either Catholic or Jewish, Hawley is also a rarity: He and his family attend an Evangelical Presbyterian Church. He grew up Methodist but said he doesn’t feel a denominational identity is primary.

“We look more for, what is the congregation that is vibrant, that is preaching the Scripture,” he said.

Hawley said he felt the Supreme Court was “very welcoming,” even though he and his wife were among the few evangelicals.

“In general evangelicals are underrepresented in the law, and certainly in the practice of constitutional law,” he said. “We need more evangelicals to enter that field and to pursue constitutional law in its dimensions.”

Next he went to work at Roberts’ old law firm before serving as counsel on several major religious liberty cases with the Becket Fund for Religious Liberty, including Hobby Lobby as well as Hosanna-Tabor v. Equal Employment Opportunity Commission. Hosanna Tabor, concerning a Christian school’s personnel decision, was a unanimous win for religious liberty advocates.

If elected in November, Hawley wants to create a “federalism unit” within the attorney general’s office that would advocate for Missouri in the federal regulatory process, in federal courts, and in congressional testimony. Some other states like Oklahoma have created such “units.” Hawley insists the current Democratic attorney general, Chris Koster, has not done this job well.

“It has real-world consequences when people are over-regulated, when farmers are told what they can do with the water on their land, and church ministries, that they have to pay for drugs that violate their faith,” he said. “And we could go on down the list. He has been absent from these fights, and the people of Missouri are suffering because of it.”

Hawley faces Democrat Teresa Hensley, a prosecutor, in the general election. If Hawley wins, a test could come soon. Next term the Supreme Court will hear a major religious liberty case from Missouri, testing whether state aid can go to religious institutions. A church in Columbia, Mo., filed suit after the state refused the church’s application for recycled tires to use on its playground. The state attorney general would have to defend that case at the Supreme Court. The court hasn’t scheduled the arguments for that case yet, so timing might determine whether Hawley would have a role in influencing the outcome of the case.