Never before has the Christian right been as elated about the prospects for transforming the federal judiciary as it is now, with the Senate engaged in the rapid-fire confirmation of judges nominated by President Donald Trump. As the confirmations mounted — 43 appellate and 99 trial court judges by the summer recess this year — Trump and Senate Majority Leader Mitch McConnell became the toast of such pivotal Christian right conferences as the Values Voters Summit and the Road to Majority, where the Faith and Freedom Coalition celebrated their role in seizing the federal judiciary back from what they see as activist liberal judges run amok. Senator Josh Hawley, the freshman Republican from Missouri whose first year in office has shown him to be a fierce defender of the president and a potential political heir, has said “we have never had a president in my lifetime who is this pro-life, this pro-family this pro-freedom, this pro-religious liberty.”
That is why it came as a surprise when, in May, Hawley, a member of the Senate Judiciary Committee, used his brief allotted time during confirmation hearings to ruthlessly flay Michael Bogren, a Kalamazoo lawyer Trump had nominated to serve on a U.S. District Court. Bogren, it seemed, had failed a litmus test in defending the City of East Lansing in a lawsuit filed by the Christian right legal powerhouse, Alliance Defending Freedom. The suit charges that the city violated the religious freedom of an antigay farmer by requiring that farmers’ market vendors adhere to the city’s nondiscrimination law. And Bogren had made the fatal error of arguing on behalf of his client, against ADF ideology, that even sincerely held religious beliefs do not exempt businesses from complying with the law.
Bogren’s nomination was effectively dead.
It was one small, florid episode in ADF’s march on Washington. In the Trump era, ADF has found itself wielding the kind of power it could only dream of when, in 1993, Focus on the Family founder James Dobson and other conservative evangelical heavyweights first conceived of a muscular legal advocacy organization that could counter the American Civil Liberties Union. The ACLU, wrote ADF’s co-founder and longtime president Alan Sears in his 2005 book, The ACLU vs. America, “has used its huge war chest over the years to wage an unrelenting war against any public expression of religious faith,” staging “a continued war of fear, misinformation, and legal intimidation to bully public officials into removing any vestige of America’s traditional Judeo-Christian heritage.”
Twenty-five years after its formal launch, the not-for-profit ADF boasts a role in 54 Supreme Court victories, a $55 million annual budget, and more than 60 staff attorneys. ADF also estimates that an army of some 3,000 allied attorneys have contributed the equivalent of $212 million in pro bono services, and that it has trained at least 2,000 law students through its Blackstone Legal Fellowship, a prestigious summer training program for aspiring conservative Christian lawyers. There, students have heard lectures from prominent lawyers and legal thinkers, including Hawley, who served on the Blackstone faculty while he was a law professor at the University of Missouri.
Within the world of legal organizations that are influential on the Christian right — others include the American Center for Law and Justice, whose chief counsel, Jay Sekulow, is a top legal advisor to Trump, and the Becket Fund for Religious Liberty — ADF’s reach and relentlessness is unparalleled. ADF’s annual revenue dwarfs the others, and these superior resources, backing its nationwide networks of attorneys, has enabled it to successfully press legal claims across the country that once seemed too far outside the legal mainstream to succeed. In one of ADF’s earliest Supreme Court victories, Rosenberger v. University of Virginia, decided in 1995, the Court held that it did not violate the separation of church and state for a public university to fund religious student groups with the same student activity fees used for secular groups — and, more critically, that a failure to fund them both would constitute “viewpoint discrimination.” Advancing that last finding, and embedding it into law and policy, has become the bedrock of ADF’s legal strategy over the ensuing decades. In the intervening years, ADF’s ever-growing army of lawyers have fanned out across America’s courtrooms, working towards bringing once peripheral legal theories into the mainstream and advancing the idea that church-state separation is not only illegitimate, but tantamount to discrimination against religion.
Starting with its statement of faith, which includes a belief in the divinity of Jesus Christ, ADF clearly presents itself as a Christian organization, and has overwhelmingly represented Christian clients. But Bob Trent, ADF’s vice president for communication, insists that ADF has “defended the rights of Catholics, Protestants, Jews, Muslims, Mormons, Jehovah’s Witnesses, and people of no faith,” an assertion that is central to the group’s claim to stand for religious liberty, broadly construed.
U.S. President Donald Trump speaks at the Faith & Freedom Coalition 2019 Road To Majority Policy Conference at the Marriott Wardman Park Hotel, on June 26, 2019 in Washington, DC.
But as legal and cultural trends have marked a growing acceptance of LGBTQ rights, one of ADF’s chief aims has been to carve out exemptions freeing conservative Christians from complying with nondiscrimination laws. ADF has artfully framed this attack on legal equality as a defense of religious freedom — and a defense of religious people in the face of secular hostility to religion. Because of the intensity of this purported hostility, ADF has repeatedly argued, Christians, not LGBTQ people, are the ones who need the protection of the law. As President Trump has committed to giving the Christian right a virtual carte blanche in both personnel and policy, ADF has found itself with an unparalleled opportunity to entrench its positions in law and policy, potentially altering the civil rights landscape for generations.
A trinity of recent Supreme Court victories — Hobby Lobby, Trinity Lutheran, andMasterpiece Cakeshop, the latter two set in motion by ADF — have laid the groundwork for a range of Trump administration policies that drastically expand the ability of conservative Christians to raise religious objections, and roll back LGBTQ and women’s rights. In its 2014 decision in Hobby Lobby v. Burwell — here ADF represented another employer, Conestoga Wood, whose case had been consolidated with Hobby Lobby’s — the Court ruled that the Affordable Care Act’s contraception coverage requirement violated the religious freedom of private corporations. In its 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that the state of Missouri could not exclude a religious school from a state program providing playground resurfacing materials, solely on the ground that it was a religious school. And in 2018, the Court ruled in ADF’s favor in Masterpiece Cakeshop v. Colorado Civil Rights Commission, finding that the state agency charged with enforcing Colorado’s nondiscrimination laws had violated the religious freedom of Jack Phillips, a baker who had refused, on religious grounds, to bake a cake for a same-sex wedding.
On October 8, when ADF argues its most recent case at the Supreme Court, R.G. & G.R. Harris Funeral Homes v. EEOC, in which it represents an employer sued under Title VII of the Civil Rights Act for firing a transgender employee, it will mark the third time Trump’s Department of Justice has taken steps to support ADF’s legal arguments before the high court. The case also provides ADF an opportunity to make a more direct strike on nondiscrimination laws protecting LGBTQ people.
ADF is arguing — with the support of Trump’s Justice Department, in a reversal of the Obama administration’s position — that its client, a Michigan funeral home, did not violate Title VII, which prohibits employment discrimination based on sex, when it fired Aimee Stephens because she is transgender. Because the Court has consolidated the case with two others addressing the question of whether Title VII’s bar on sex discrimination includes sexual orientation and gender identity, its decision could have far-reaching consequences for LGBTQ people. ADF declined to make a representative available for an interview but in written responses to questions, John Bursch, senior counsel and vice president of appellate advocacy, who will argue the funeral home case before the Supreme Court, said, “Redefining ‘sex’ to include ‘gender identity’ will create unfair situations for women and girls and cause chaos for charitable organizations and businesses. It means biological men will take women’s places on athletics teams, at award podiums, and for college scholarships,” and “jeopardizes rights by forcing even women’s shelters who serve victims of rape, sex trafficking and domestic violence to allow men who identify as women to sleep alongside them.” It would, he said, “undermine nearly 50 years of advances for women.”
- ‘We have never had a president in my lifetime who is this pro-life, this pro-family this pro-freedom, this pro-religious liberty.’
Meanwhile, those three landmark ADF cases have already provided the Trump administration a basis for expanding the ability of taxpayer-funded federal contractors to cite their religious beliefs as grounds for engaging in discrimination. As Americans United for Separation of Church and State has pointed out, the controlling plurality opinion in Trinity Lutheran “explicitly stated that the decision was limited to ‘express discrimination based on religious identity with respect to playground resurfacing,’” and “does not extend to allow taxpayer funding to flow to educational services for school children.” Yet the Department of Educationclaims that the decision not only allows but requires it to contract with religious service providers. In August, the Department of Labor issued a notice of proposed rulemaking to expand the ability of a broad range of federal contractors to claim religious exemptions from nondiscrimination laws. Tellingly, the notice cited all three of those pivotal ADF Supreme Court decisions, and earned plaudits from ADF senior counsel Gregory Baylor. The Trump administration, Baylor wrote in comments on the proposal, “is right to consider adopting a rule that would clarify the ability of these organizations to operate based on their religious beliefs, maintain partnerships with the government, and serve the common good all at once. We live in a diverse society, and there’s no reason or constitutional basis to single out and marginalize certain views.”
For civil rights advocates, the proposed rule does not expand freedoms, but rather invites discrimination. Louise Melling, deputy legal director at the ACLU (which represents Aimee Stephens, the fired employee in R.G. & G.R. Harris Funeral Homes) said the proposed rule would “radically expand” the ability of a federal contractor to claim that adhering to nondiscrimination laws infringes on its religious beliefs. It is broad enough, she argues, to permit a federal contractor to discriminate against LGBTQ people in hiring, or to terminate a female employee for her reproductive choices. The Law, Rights, and Religion Project at Columbia Law School also submitted comments against the rule change, arguing it would also put religious minorities “at risk of losing their job if they do not comport with the theological beliefs of their employers,” which is not “a reasonable way to protect religious freedom.”
While ADF claims to only be a defender of the religious rights of the devout, and to oppose discrimination, internal documents tell another story. According to emails obtained by TPM and Type Investigations through a public records request, from 2013 through 2015, ADF sent Hawley, and other members of the Blackstone faculty, a copy of ADF’s “lexicon” guidelines, asking faculty to adhere to them in their remarks. The document contained a lengthy list of phrases under “USE” or “DON’T USE,” including to use “defending biblical, religious principles, convictions,” but not “bigotry, anti-tolerance;” and to use “demands of/by the homosexual legal agenda, demands of/by advocates of homosexual behavior, special privileges,” but not “homosexual/gay rights, hate-crimes legislation, antidiscrimination laws.” That particular admonition included a note observing that, according to Sears, the ADF co-founder, “the goals and agenda of advocates of homosexual behavior are not ‘rights,’ but ‘demands.’” Similarly, ADF’s lexicon called for using “homosexual behavior,” not “homosexuality or gay,” because “homosexuality is a personal struggle” and “the word ‘gay’ was conceived by advocates of homosexual behavior to de-stigmatize their behavior and advance their agenda.” According to the lexicon, Sears “notes that it’s not a ‘lifestyle’ — tragically, it’s a way that often leads to death (Proverbs 14:12).” Another entry calls for the use of the phrase “equality of opportunity,” but not “equality,” because, according to Patrick Buchanan’s book, Suicide of a Superpower, “Where equality is enthroned, freedom is extinguished. The rise of the egalitarian society means the death of the free society.” Hawley did not respond to a request for comment about his views on ADF. About the lexicon, ADF’s Bursch said “An internal communications document from 2012 has nothing to do with this case,” referring to R.G. & G.R. Harris Funeral Homes, and “Lexicons change over time, but the plain meaning of the law does not.”
The lexicon sharply exposes ADF’s view of transgender people — asking faculty to use the phrases “cross-dressing, sexually confused,” but to not use “transgender.” These guidelines now threaten to become government policy. The Department of Health and Human Services’ Office for Civil Rights, where former ADF attorney Matthew Bowman works as a political appointee, has issued a proposed rule defining “sex” as biological sex — effectively erasing trans people. “The Trump administration is right to issue a proposed rule that affirms the government’s longstanding interpretation of ‘sex,’” ADF attorney Kellie Fiedorek said in a statement about the proposed rule. Fiedorek made clear that circumscribing the definition of “sex” was a measure with potentially sweeping consequences: “Replacing the objective concept of sex with subjective gender identity, as some courts and the prior administrative have tried to do, has far-reaching consequences, including for women’s sports, school locker rooms, and homeless women’s shelters.”
Adhering to this narrow definition of “sex” is also underway at the Department of Education, where officials took one of the first anti-trans steps of the administration by rescinding, in 2017, the Obama-era guidance that encouraged schools to allow students to use the restroom or locker room that corresponds to their gender identity. Now, the agency is examining ADF claims that Title IX, the federal civil rights law that prohibits sex discrimination in education, could be interpreted to protect cisgender students from trans-inclusive policies, a potentially lethal blow to transgender rights. The Department’s Office of Civil Rights has already opened two investigations based on complaints brought by ADF. In one case, in which the facts are disputed, ADF alleges that a Decatur, Georgia, kindergartener was sexually assaulted in a trans-inclusive bathroom at school. In the other, ADF claims that a rule in Connecticut allowing transgender high school athletes to compete with cisgender athletes, violates the cisgender athletes’ rights under Title IX. “It’s one thing to say trans people aren’t covered,” said Chase Strangio, an ACLU staff attorney and expert on transgender rights, but “it’s a greater threat to say it violates federal law to cover them.”
In court, ADF is building an additional attack on Title IX: that trans-inclusive requirements violate the constitutional privacy rights of cisgender students. “If they prevail on those arguments, it’s very different from having a fight over a legislative exemption,” said the ACLU’s Melling. “A constitutional win on their claims is devastating to think about.”
Meanwhile, Trump’s DOJ has been enmeshed with ADF since the beginning of his presidency. In 2017, then Attorney General Jeff Sessions consulted with ADF lawyers in preparing a comprehensive memorandum for all federal agencies on how to expand religious freedom — and undermine civil rights protections. The 25-page document enumerated the circumstances under which, in DOJ’s view, religious people, charities, and companies should be exempt from laws they claim violate their religious beliefs. Civil rights advocates were in an uproar; Americans United for Separation of Church and State called the memo “a roadmap for how to discriminate against most anyone, including women, LGBTQ people and religious minorities.” Each year of his truncated tenure as AG, Sessions delivered speeches to ADF religious freedom conferences. In the 2018 speech, he thanked the organization “for your work for and commitment to religious freedom at such a time as this,” congratulated the group on its Supreme Court victories, and reminded those gathered of DOJ’s involvement on ADF’s side in cases in lower federal courts. DOJ also launched a Religious Liberty Task Force in 2018, with a day-long summit featuring remarks by one of ADF’s clients, Jack Phillips, the baker in Masterpiece. In his speech there, Sessions expressed sympathy with Phillips’ “ordeal” and decried a “dangerous movement” that is “challenging and eroding our great tradition of religious freedom.” When ADF argues Harris Funeral Homes before the Supreme Court in October, it will have the backing of DOJ, which reversed the position of the Obama administration — that the prohibition against sex discrimination in Title VII includes sexual orientation and gender identity. When asked how significant DOJ’s position was for ADF, Bursch said, “The Department of Justice simply brought the meaning of the word sex back to the understanding of the word when Title VII and Title IX were passed into law by Congress.” He would not say whether ADF discussed this reversal of Obama-era policy with DOJ, saying only that the change “was communicated to ADF counsel.”
Hawley’s destruction of the Bogren judicial nomination shows just how much ADF’s worldview has also come to dominate the judicial nominations process. During his brutal cross-examination of Bogren, without mentioning ADF, Hawley cited one of its most significant Supreme Court victories, Masterpiece Cakeshop. That case, like the playground case, Trinity Lutheran, was decided on very specific factual circumstances. As Cakeshop made its way through the state administrative process, a member of the Colorado Civil Rights Commission, Diann Rice, observed that bad actors have historically used religion as an excuse “to hurt others,” including justifying slavery and the Holocaust. The Supreme Court accepted ADF’s argument that this utterance amounted to hostility to Phillips’ religion.
Hawley seized on that example, zeroing in on two paragraphs of a 53-page brief Bogren had written in 2017, while defending East Lansing against the lawsuit filed by ADF. In that suit, which is ongoing, ADF charges that the city had infringed on the religious freedom of a Charlotte, Michigan, orchard and cider mill, Country Mill Farms, and its owner, Steve Tennes, when it required all vendors at its farmers’ market to comply with the city’s human relations ordinance, which bars discrimination on the basis of a number of enumerated factors, including sexual orientation. Because Country Mill made clear that it would not rent out its facilities for same-sex wedding ceremonies due to religious objections, the city denied it a vendor’s license.
In his brief, in which Bogren argues that religious beliefs do not exempt a business from complying with laws barring discrimination, Bogren proffers an example: the religious beliefs of the Nation of Islam or the KKK against marriage between people of different races, he notes, would not exempt any secular business owned by adherents to those sects from having to comply with anti-discrimination laws. “There can be no constitutionally sound argument that sincerely held religious beliefs would permit a secular business to avoid the prohibitions against racial discrimination or gender discrimination found in Federal, State and local laws,” he writes, and “the courts have utterly rejected any suggestion that sexual orientation is not entitled to the same level of protection as other protected classes.”
Following the ADF script, Hawley assailed Bogren for having “compared in, your briefs, a Catholic family’s adherence to the teachings of their church to the activities of the KKK and the teaching of radical imams,” theatrically declaring himself “particularly shocked by it in light of the Supreme Court’s clear teaching that this kind of animus and these kind of hateful comparisons are out of step with the protections of our law.” He then reminded an astonished Bogren that Masterpiece Cakeshop “turned on this kind of animus.”
Three weeks later, Bogren withdrew his name from consideration. Senate Judiciary Committee staff had told him there was “no path to confirmation,” he said in a statement. Bogren condemned Hawley’s charges as “utterly untrue.” “What I argued on behalf of my client is the First Amendment does not create an exception to antidiscrimination laws based on religious beliefs — whatever those religious beliefs might be,” he said. “It was not my intention to compare Catholics to the KKK, and the brief cannot be fairly read as doing so.” But that’s how it’s read by ADF, and ADF’s once novel legal arguments have gained ground.
Noel Francisco attends his Senate Judiciary Committee confirmation hearing on May 10, 2017 in Washington, DC.
While Bogren apparently went down for opposing ADF, four confirmed Trump judges — Allison Rushing of the United States Court of Appeals for the Fourth Circuit, Amy Coney Barrett of the Seventh Circuit, Kyle Duncan of the Fifth Circuit, and Michael Juneau of the United States District Court for the Western District of Louisiana — have ties to ADF. Rushing worked as a legal intern at ADF, and Barrett, like Hawley, had been faculty for its Blackstone Fellowship. (Barrett also is reportedly on Trump’s Supreme Court short list.) Juneau and Duncan had been allied attorneys. A fifth, Jeremy Kernodle of the Eastern District of Texas, briefly served as counsel in an ADF case. (He said that ADF had mistakenly listed him as an “allied” attorney even though he did not apply to be one.) In 2016, ADF had also identified Noel Francisco as an “allied” attorney on its website, only to alter it the following year, after Francisco became Trump’s Solicitor General and filed a brief supporting ADF’s position in Masterpiece Cakeshop. At the time, Keri Kupec was ADF’s director of communications; in 2018 she went on to play a critical role in Trump’s judicial nominations, becoming the White House spokesperson for Brett Kavanaugh’s nomination to the Supreme Court. She was later elevated to a post as director of public affairs at DOJ, where she has been the point person fielding queries on Trump’s potentially unlawful communications with Ukrainian president Volodymyr Zelensky. (The day after House Speaker Nancy Pelosi announced an impeachment inquiry, Kupec issued a statement saying that DOJ had determined “that there was no campaign finance violation and that no further action was warranted.”)
In August, Vice President Mike Pence addressed an ADF gathering at the Ritz-Carlton in Pentagon City, Virginia, expressing gratitude for the organization’s leadership, saying, “Keep standing strong for our first freedom and know that we’ll stand with you.” He enumerated the administration’s actions to protect religious conscience rights, noting, to applause, “the Alliance Defending Freedom has been there every step of the way.”
Democratic lawmakers have taken notice of the proliferation of Trump judicial nominees and political appointees with ADF ties, and have sought answers about the influence of ADF’s ideology on critical policymaking positions. Early last year, the House Committee on Oversight and Reform received documents from a whistleblower indicating that ADF had originally drafted a January 2018 letter sent by HHS to state Medicaid directors allowing them to terminate Planned Parenthood’s status as a health care provider for Medicaid beneficiaries seeking family planning services. The documents, then Ranking Member Elijah Cummings said in a statement, “raise serious concerns about whether the Trump Administration is now taking orders from an extreme right-wing interest group that is trying to deny American citizens the ability to exercise their right to obtain family planning services that are guaranteed by federal statute.” (ADF issued a statement to Politico calling Cummings’ charges “misleading and inaccurate” and arguing, “It is common practice for constitutional attorneys to be consulted regarding constitutional matters.”)
This June, Democratic lawmakers on Oversight’s Subcommittee on Economic and Consumer Policy, along with Senator Elizabeth Warren, wrote to Kathleen Kraninger, the director of the Consumer Financial Protection Bureau, about Paul Watkins, a former ADF attorney who is now a CFPB assistant director, because his responsibilities at the agency give him “wide discretion to exempt companies — or even entire industries — from anti-discrimination laws.” In August, the Subcommittee wrote to Kraninger again, this time asking about Watkins’ role in overseeing proposed new rules that would undermine protections against discrimination. “We have grave concerns about Mr. Watkins holding the authority to waive anti-discrimination laws given his prior employment at Alliance Defending Freedom,” the lawmakers wrote. (The CFPB did not respond to a request for comment.)
For now, ADF’s legal theories are on the verge of gaining more traction at the Supreme Court, and the House remains the only check on the spread of ADF’s agenda in federal agencies. And the more ADF acolytes obtain positions of judicial and legislative power, the more opportunities they will have to cement ADF’s ideology in the law — a goal that has long been in the organization’s sights.
In a 2013 email thanking Blackstone faculty for “your commitment to the Lord’s Kingdom work,” ADF attorney Jeffrey Ventrella wrote, “Together, with the grace of God, we can make a difference in America’s future. In particular, we can protect what we have; regain what we have lost; and shape who we become.”