On a sunny morning in September, Representative Vicky Hartzler, a Missouri Republican, held a press conference with four of her congressional colleagues to announce their support for Jack Phillips, a Colorado baker. The conservative Christian and “cake artist” had been found in violation of Colorado’s anti-discrimination law when he refused to bake a wedding cake for a same-sex couple. Phillips is now the plaintiff in one of the most closely watched cases on the Supreme Court’s docket this term, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
Hartzler had just spent a good part of her summer pressing for a ban on transgender people in the military because she believes they constitute a “domestic threat.” She was one of 86 Republican lawmakers who had just signed onto an amicus brief supporting Phillips’s novel claim that baking and decorating a wedding cake is constitutionally protected artistic expression. Phillips has also argued that he should not be required to deploy his creative talents on behalf of a same-sex couple, because doing so would violate his religious beliefs.
“A government that tells you what you must say and what you must do, and punishes you if you don’t, is frightening,” Hartzler said. “That kind of state power should scare all of us.”
Nearby, Phillips stood quietly with his attorney, Kristen Waggoner of Alliance Defending Freedom (ADF), which has mushroomed over the past few years into a Christian-right powerhouse. Founded 24 years ago because, as its longtime president Alan Sears once put it, “the homosexual agenda threatens religious freedom,” ADF now rivals some of the nation’s top private law firms in Supreme Court activity. It has trained thousands of lawyers, many of whom have gone on to government service at the federal, state, and local levels. The organization has helped shape “religious freedom” legislation; provides grants to other Christian-right organizations; and presses school districts to adopt its model policies on issues like transgender facility access. ADF now exerts far more influence than other legal organizations that litigate religious-freedom cases, such as the American Center for Law and Justice, the Becket Fund for Religious Liberty, and Liberty Counsel. As the courts have ruled in favor of marriage equality over the past decade, ADF has positioned itself at the very center of the efforts to curtail LGBTQ rights under the guise of religious freedom.
The preparation of the congressional amicus brief was led by Ted Cruz, the Texas senator and former GOP presidential contender; Senator Mike Lee, a Utah Republican once rumored to be under consideration by Donald Trump for a Supreme Court seat; and Representative Mike Johnson, a freshman Republican from Louisiana and a rising conservative star. Johnson is one of dozens of former ADF attorneys around the country who were trained in the organization’s “Christ-centered” legal principles and now serve in government or the judiciary. As an ADF staff attorney, he led many of its legal fights against marriage equality.
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The involvement of Cruz, Lee, Johnson, and other congressional leaders is just one mark of ADF’s remarkable ascent. The organization, which once aspired to be merely a Christian antidote to the secular ACLU, has fast become a training ground for future legislators, judges, prosecutors, attorneys general, and other government lawyers—including, notably, in the Trump administration. Noel Francisco, Trump’s solicitor general, is an ADF-allied attorney, and Attorney General Jeff Sessions consulted with ADF when drafting Department of Justice guidance on religious-freedom issues. At the state level, at least 18 ADF-affiliated lawyers now work in 10 attorney-general offices; all of them were appointed or elected in the past five years. And in just one year, Trump has nominated at least four federal judges who have ties to ADF—Amy Coney Barrett, recently confirmed to the Seventh Circuit; Kyle Duncan, nominated to the Fifth Circuit; and Jeff Mateer and Michael Joseph Juneau, both nominated to district courts.
At the press conference, Johnson enthused about the potential impact of Phillips’s case, calling it “seismic.” Before quickly departing for a vote on the House floor, he explained that he and his colleagues were only seeking “a very careful balance” in the wake of Obergefell v. Hodges, the Supreme Court’s landmark 2015 decision enshrining marriage equality. “We have to figure out how everyone can coexist,” Johnson said. “An essential component of that is allowing everyone to live out their deepest convictions.”
At the core of Masterpiece Cakeshop is a radically revisionist idea: that laws protecting the civil rights of historically marginalized groups can violate the free-speech rights of the people who refuse to serve them. Although ADF has also charged that the Colorado law violates Phillips’s right to the free exercise of religion, a shadow looms over that claim, cast by the Supreme Court’s 1968 decision in Newman v. Piggie Park. There, the owner of a South Carolina barbecue chain claimed that the Civil Rights Act of 1964 “contravene[d] the will of God” and infringed on his right to the free exercise of religion, because his beliefs “compel him to oppose any integration of the races.” The Supreme Court rejected these claims as “patently frivolous.” Notably, ADF has put its free-speech claim, rather than the free-exercise-of-religion claim, front and center in its brief, casting Phillips as an artist whose freedom of expression has been violated.
An ADF victory on either claim in Masterpiece Cakeshop, which will be argued before the Supreme Court on December 5, could not only create new precedent but also erode advances in LGBTQ rights, ushering in enduring consequences for LGBTQ people and other protected classes. “We know the possible hurtful effects from the endless examples of how same-sex couples and LGBT individuals have been refused service or turned away in the cases that we’ve litigated,” said Jenny Pizer, law and policy director at Lambda Legal, a national LGBTQ-rights organization.
Pizer said that discrimination occurs in a multitude of public accommodations, including medical, legal, lodging, retail, even access to schools. In its Masterpiece Cakeshop amicus brief, Lambda documented more than 1,000 incidents of LGBTQ people being refused service. According to the brief, these incidents expose “an ugly truth: with disturbing frequency, LGBT people are confronted by ‘we don’t serve your kind’ refusals and other unequal treatment in a wide range of public accommodations contexts.” Those refusals, Lambda argued, “wrongfully diminish lives that should have equal dignity under our laws and in our public spheres.”
If the Supreme Court were to accept ADF’s religious-infringement claim, Pizer said, “the vulnerability to arbitrary rejection” experienced by LGBTQ people would be present at “any moment during the day when we go through our daily lives—we work, we have to buy food, we have to live somewhere, we have to be able to access medical care, we have to be able to ride transportation services.” And if the Court were to accept ADF’s free-speech claim, Pizer continued, any vendor could simply claim that his or her work is “part of my living my faith, and my faith says I must not make this for you because if I make this for you, I am accepting you, and there’s something about you to which I object on religious grounds.” A ruling supporting either argument would leave “such an enormous hole in the civil-rights laws, there’s really nothing left.”
ADF’s dubious accomplishment, according to Greg Lipper, a First Amendment attorney, has been to “take an extreme position” and mainstream it so thoroughly that it has become “a viable theory at the Supreme Court.”
A Christian “Legal Army”
The Masterpiece Cakeshop case, with its Colorado plaintiff, brings ADF full circle. The organization was founded in 1993 by a group of Christian-right heavyweights, including Sears, James Dobson, and evangelist D. James Kennedy, in the midst of a conservative panic over a gay-rights movement that was just beginning to score some legal victories. Colorado, home to Dobson’s Focus on the Family and its sprawling campus, was ground zero for the backlash. Voters there had just passed Amendment 2, a ballot referendum that amended the state constitution to block state or local officials from recognizing gay men, lesbians, or bisexuals as a protected class. Such protections—known in conservative circles as “SOGI laws,” short for “sexual orientation and gender identity”—remain a prime ADF target. Nineteen states and the District of Columbia have passed laws protecting LGBTQ people in public accommodations; two more states prohibit discrimination based on sexual orientation. The statute that Phillips was found to have violated when he refused to serve a same-sex couple at his business was one such law.
After Colorado voters approved Amendment 2 in November 1992, gay-rights activists mobilized to protest the law and challenge it in court, ultimately prevailing in 1996 in Romer v. Evans, in which the Supreme Court ruled that Amendment 2 violated the US Constitution’s equal-protection clause.
For Sears, Dobson, and ADF’s other co-founders, these battles represented an existential threat to conservative Christians. The campaign marshaled to oppose Amendment 2, Sears wrote in his 2003 book, The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today, was proof that “radical homosexual activists and their allies are looking for any opportunity to attack and silence any church that takes a biblical stand with regard to homosexual behavior.” The persecution that churches faced due to the “wrath of angry homosexual activists,” Sears argued, “is a snapshot of what will happen to the church in America.” Sears’s book, along with his 2005 The ACLU vs. America, has long been on the reading list for the Blackstone Legal Fellowship, ADF’s summer program for law students.
Over the past 24 years, ADF has experienced remarkable growth, today receiving contributions of more than $50 million a year—up from $14 million in 2002—and boasting 58 staff attorneys based in its headquarters in Arizona and in offices in Washington, DC, and elsewhere. It also has an international presence, including opposing LGBTQ equality in courts in the European Union and advising anti-LGBTQ parliamentarians in Romania.
ADF’s funding comes from individual donations, which by law are kept secret, as well as from charitable foundations, which by law must be disclosed on the donors’ tax returns. But much of ADF’s foundation funding—$77.6 million between 2008 and 2015, more than a quarter of the organization’s total donations during this period—comes through the National Christian Charitable Foundation, a conservative donor-advised fund that allows contributors to shield their identities from public view.
One of the most prominent of ADF’s known donors is the family of Betsy DeVos, Trump’s secretary of education. The Edgar and Elsa Prince Foundation, which in its tax filings lists DeVos as vice president, has donated more than $1 million to ADF since 2002. When questioned at her confirmation hearings about the foundation, DeVos denied having any role in determining its grants, calling the listing of her name as an officer a “clerical error.” Another ADF donor is the family foundation of Representative Greg Gianforte, the Montana Republican who was elected despite having assaulted a reporter on the eve of the vote.
With this swelling war chest, ADF has been able to assemble what its founder Sears has called a “legal army.” Its ranks include more than 3,000 allied attorneys who litigate ADF cases pro bono, as well as 1,800 graduates of the Blackstone Legal Fellowship. Through these networks, ADF has exerted its influence throughout the conservative legal world, across law firms, state and federal governments, and the judiciary.
To become an “allied attorney,” one must agree with ADF’s 11-point statement of faith, which includes a commitment to believing in the divinity of Jesus Christ, that God designed marriage for one man and one woman, and that homosexual behavior is “sinful and offensive to God.” ADF states that its allied attorneys have so far donated more than 1 million hours of pro bono work, worth hundreds of millions of dollars. Trenton Garmon, the attorney representing Alabama Senate candidate Roy Moore, is among the allied attorneys who have been inducted into ADF’s “Honor Corps” for donating more than 450 pro bono hours to the organization.
The Blackstone Legal Fellowship trains law students on how to apply ADF’s principles to the public realm, offering “the highest level training in Christian worldview and constitutional law to help break the stranglehold the ACLU and its allies have on our nation’s law schools and judicial system.” Fellows become integrated into the conservative legal ecosystem through seminars and talks from senior staffers from Focus on the Family, the Family Research Council, and other influential conservative organizations. They have also been addressed by two attorneys Trump has since nominated to federal judgeships: Amy Coney Barrett, of the Seventh Circuit, and Kyle Duncan, an ADF-allied attorney who has also received grant money from the organization, awaiting confirmation to the Fifth Circuit. (Citing his pending hearing, Duncan declined to comment for this article, referring all questions to the Department of Justice, which did not respond to an interview request.) Blackstone Fellows are also placed in internships with prestigious law firms and think tanks.
Although they have since been removed from ADF’s website, testimonials from Blackstone Fellows available as recently as 2014 hint at an ideology firmly opposed to secular government and law. One fellow praised the program for its focus on hewing to the “orthodoxy of our Christendom in order to win back the rule of law.” Another said it “unveiled the scale of the attack against truth, and through awesome presenters, also gave the battle plan and weapons necessary to fight back.” One fellow spoke of being encouraged that “Christ’s Truth will never fail or be defeated. It is these attitudes and practices that I will use in recovering the rule of law in America.”
As ADF has built up its cadre of conservative Christian attorneys, it has also sought to shield them from the profession’s own prohibitions against bias. ADF campaigned against the implementation of a model antidiscrimination rule, added last year by the American Bar Association to prohibit discrimination based on, among other things, sexual orientation and gender identity, claiming that it would “censor” attorneys’ speech. This year, ADF provided a grant to the Foundation for Moral Law, the conservative legal-advocacy nonprofit founded by Moore, to study the issue and produce a report.
Religious Freedom—for Christians Only
This burgeoning “legal army” has helped ADF advance its foundational narrative: that conservative Christians, in particular, face persecution in the United States. It was the Becket Fund for Religious Liberty that represented the arts-and-crafts chain Hobby Lobby in its successful lawsuit to gain a religious exemption to the Affordable Care Act’s requirement to provide a contraception-coverage benefit. And it was the American Center for Law and Justice that won a major case in 2009 regarding the display of the Ten Commandments on public property. But no organization has played a more pivotal role than ADF in shaping and testing “religious freedom” as the Christian right’s latest legal strategy in the culture wars. And while the Federalist Society has positioned itself as the right’s screening agency for the federal judiciary, no other conservative Christian legal organization has propelled so many attorneys into state and federal government, where they are now in positions to oversee the restructuring of civil-rights and First Amendment law in ADF’s mold.
Although the organization pays lip service to supporting religious freedom for all people, a review of 146 of ADF’s appellate and Supreme Court briefs shows that its attorneys are focused almost exclusively on the religious rights of Christians. ADF filed 23 lawsuits challenging Obamacare’s contraception-coverage benefit, three of which reached the Supreme Court on the merits, including Conestoga Wood, which was consolidated with Hobby Lobby. ADF also took part in 22 cases advocating bans on same-sex marriage, including representing county clerks who objected to marriage equality in Virginia and Oklahoma.
Other cases included the defense of prayer or evangelizing in public schools in New York, Michigan, and California, and the defense of Christian prayers during legislative sessions in Florida, Michigan, Indiana, California, and New York, including an important Supreme Court victory in 2014. ADF has also been an active litigant in the anti-choice movement, defending protesters outside abortion clinics in New Hampshire, Pennsylvania, and Massachusetts, including another Supreme Court victory in 2014. The organization has defended restrictions on abortion like Arizona’s ban on the procedure after 20 weeks of pregnancy; an “informed consent” law in South Dakota; a late-term abortion ban in Nebraska; and Texas’s HB2, which was struck down by the Supreme Court last year. Lately, ADF has also waded into the campus free-speech wars, claiming, for example, that a student counselor at Eastern Michigan University had the right to refuse to counsel LGBTQ clients. The Supreme Court has just agreed to review another ADF case, this one challenging a California law that requires crisis pregnancy centers to inform patients about state programs offering free or low-cost access to abortion, contraception, and prenatal care.
An ADF spokeswoman said the organization “has an extensive record of representing and advocating for non-Christian parties,” including cities, counties, school districts, veteran organizations, and student groups like the College Republicans and Students for Life.
Yet we found just five instances in which ADF’s lawyers weighed in on appellate cases involving religious plaintiffs who were not Christian. In only two of them did ADF express support for the religious-minority plaintiff—once in a case in which a rabbinical organization challenged a public-health regulation on circumcision, and once in support of an Orthodox Jewish day school claiming that a local permitting process violated its religious rights. ADF also weighed in on two cases in support of Muslim prisoners who claimed their religious rights had been violated, but in neither did it address the particular facts of the case, making only arguments about what it considered to be a proper interpretation of the relevant statute and, in one case, how that interpretation would affect Christian organizations.
Most striking was ADF’s amicus brief filed in the challenge to Trump’s second Muslim ban. That brief effectively supported the ban by laying out a case for why the courts should not consider Trump’s own anti-Muslim statements in determining whether the ban violated the US Constitution’s establishment clause, criticizing the district court for inappropriately “combing through a government actor’s tweets.”
The overarching story highlighted in this substantial body of ADF’s briefs—most of which are available in public databases—is the organization’s painstaking construction, case by case and argument by argument, of a legal narrative asserting that Christians are under threat of persecution from the advance of LGBTQ and reproductive rights, as well as from secular schools and universities, and that the law must allow Christians to disregard, disobey, or even dismantle laws protecting those rights in order to protect their own rights to free speech and the free exercise of religion.
The “Christ-Centered” Lawyer
If one law firm in the country embodies the American establishment, it is arguably Jones Day. A powerhouse in Washington, and with thousands of lawyers around the world, including more than 40 former Supreme Court clerks, Jones Day has already funneled at least 14 attorneys into top posts or nominations in the Trump administration. Noel Francisco, Trump’s solicitor general, is a former partner there—and an ADF-affiliated attorney. In September, the firm opened up its expansive seventh-floor conference room, with its unobstructed view of the Capitol, to ADF for a briefing on the Supreme Court’s upcoming term.
ADF’s Kristen Waggoner made use of the occasion to rehearse the arguments she will soon present before the Court. She depicted Phillips, the Colorado baker, as a well-intentioned, pious artist whose rights are being trampled by a government that refuses to privilege the depth of his religious commitments. For Phillips, a cake is a means of artistic expression that carries “spiritual significance to him and to millions of others.” Waggoner insisted that Phillips had not discriminated against LGBTQ people, but rather that creating a cake for the wedding of Charlie Craig and David Mullins would have violated his religious convictions. The case, she said, isn’t “about the who, it’s about the what.”
Waggoner, who practiced law in Seattle for 17 years before joining ADF in 2013, is a graduate of the Regent University School of Law, founded by televangelist Pat Robertson to provide a “Christ-centered” legal education. In an interview with The Nation, Waggoner said that Regent offered her “unique” teaching and an opportunity to study “an originalist perspective on the Constitution” as well as “concepts like religious freedom.” Regent, she said, has produced many of ADF’s “best lawyers.”
While in private practice, Waggoner litigated a protracted case in which she represented a pharmacist who had refused, on religious grounds, to fill prescriptions for emergency contraceptives like Plan B. She has also long represented Barronelle Stutzman, a florist (or “floral artist”) in Richland, Washington, who was sued for violating the state’s antidiscrimination law when she refused to provide flowers for a gay customer’s wedding. ADF has asked the Supreme Court to review the case.
Waggoner worked alongside ADF on multiple cases, but she only joined its legal staff after she began to witness, in her words, “a government that is becoming far more coercive and less pluralistic.” Not long after she made that decision, in 2014, she told a Southern Baptist Convention conference that nondiscrimination laws were actually being used “to silence Christians, to force them to not live out their convictions” and “instead to cower in silence.”
Waggoner was chosen to argue Masterpiece Cakeshop by ADF’s new president, Michael Farris, a founder of the evangelical Patrick Henry College and the Home School Legal Defense Association, a conservative Christian advocacy group. Farris replaced the retiring Sears as ADF’s president in January. In an appearance on Hugh Hewitt’s conservative radio program, Farris described Waggoner as “just dynamite” and expressed confidence that she “will present the argument with real, real aplomb.” Hewitt called Waggoner “an amazing woman” and encouraged his listeners to donate money to ADF.
An Abomination Before God
In the context of Phillips’s claim that he objects to the wedding—and not to the gay customers themselves—it is striking that more than a quarter of the 146 ADF appellate briefs we reviewed are arguments for restricting LGBTQ rights. Until very recently, ADF routinely trafficked in slurs against the LGBTQ community, consistently depicting LGBTQ people as promiscuous, uncommitted, and unfit to parent in dozens of its briefs opposing marriage equality.
In a 2006 case in Maryland, ADF maintained that “sexual fidelity is rare among homosexual men” and that “the average homosexual relationship is short.” In a 2009 case in West Virginia, arguing against a lesbian couple’s adoption of a baby they had fostered, ADF noted that the couple had insisted that the court be “forced to treat their home as just as good as any other.” But, ADF wrote, “this cannot be.” Although the organization had long opposed allowing same-sex couples to marry, in another parenting case, this one in Arkansas in 2010, it used the fact that the couple could not marry as an argument against allowing them to adopt. “It is logical to prevent children’s exposure to the illicit sexual conduct and revolving-door of adult sexual partners that often accompany cohabitation,” ADF argued.
Our review of ADF’s briefs also found that the organization repeatedly argued in court that sexual orientation is not a suspect class, and as such that laws denying LGBTQ rights should not be subject to strict scrutiny. That argument is based partly on ADF’s contention, common on the Christian right, that sexual orientation and gender identity, unlike race, are matters of choice.
In a 2012 case before the Montana Supreme Court, for example, Tim Fox—then counsel for an ADF-allied organization, the Montana Family Foundation, and now the state’s attorney general—filed a brief on behalf of ADF. In it, Fox argued that sexual orientation and gender identity should not be considered a suspect class like race because LGBTQ people are not marginalized by society and indeed possess significant political power, as evidenced by the “zealous political advocacy” that then-President Obama engaged in on their behalf. In a New Mexico case the following year, ADF argued that “citizens advocating to redefine marriage are among the most influential groups in modern politics; they have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.”
Over the past 14 years, the Supreme Court has repeatedly rejected many of these arguments. In 2003, the Court struck down laws criminalizing sodomy in Lawrence v. Texas. In 2013, in United States v. Windsor, the Court struck down a key part of the Defense of Marriage Act, which restricted access to federal benefits. Two years later, it formalized marriage equality with Obergefell.
Since Windsor, seeing the handwriting on the wall, ADF has pivoted away from arguments that LGBTQ people aren’t worthy of marriage equality to arguments that marriage equality violates the rights of Christians. By making this argument in Masterpiece Cakeshop, ADF is bringing its foundational fear—that the advance of rights for LGBTQ people turns Christians into their victims—to the Supreme Court. In The Homosexual Agenda, Sears opined that churches would be forced to abandon their faith; once it became clear that the law does not force churches to perform or condone same-sex marriages, ADF expanded its universe of victimized Christians.
Now the organization aggressively seeks to limit the scope of Obergefell, trying to restrict LGBTQ couples from equal access to public accommodations by framing bakers, florists, county clerks, and website designers as persecuted by the application of civil-rights laws. ADF’s brief in Masterpiece Cakeshop, for example, argues that the law “must respect Phillips’s freedom to part ways with the current majority view on marriage” and asserts that true freedom “does not crush those who hold unpopular views, pushing them from the public square.”
But back in 2004, when court clerks in California, with the blessing of San Francisco Mayor Gavin Newsom, began issuing marriage licenses to same-sex couples, ADF challenged that action directly to the California Supreme Court. The organization argued there was no legal justification whatsoever for the clerks to violate state law by issuing such licenses. In its brief, ADF claimed that “the Clerk has ignored the law—an improper action regardless of motives or reasons.” The “real and only issue” in the case, the brief continued, was that “public officials must follow the laws—even laws with which they disagree.”
Apparently, in ADF’s view, only conservative Christians have the right to resist.
Increasingly wary of being called discriminatory in the wake of a decision last year by the Southern Poverty Law Center to label it a hate group, ADF has redoubled its efforts to portray its views as mainstream. ADF attorneys have adamantly rejected any comparison of the organization’s stance to that of segregationists. At the Jones Day briefing in September, Waggoner declared it “offensive” to compare opponents of same-sex marriage to “those who are engaged in racial bigotry.” The following month, ADF promoted and took part in a press conference in front of the US Supreme Court, featuring several African-American conservatives who championed the ADF line that race is an immutable characteristic but homosexuality is a choice.
However, speaker after speaker attacked homosexuality itself, using language that would have been right at home in ADF’s earlier briefs. The Rev. William Keen spoke of “some sins that are considered an abomination before God,” and Janet Boynes, an “ex-lesbian” activist, called homosexuality a “false identity that is rooted in sexual or emotional brokenness,” a “disorder,” and a “rebellion against God’s plan.”
ADF in Power—in Washington and in the States
In 2007, a scandal engulfed then-Senator Larry Craig, an Idaho Republican, after he was arrested for soliciting sex in a men’s public bathroom. ADF attorney Austin Nimocks responded by writing a column for the conservative website Townhall. “Those pushing the homosexual agenda, including their accomplices in the media, typically portray presentable and socially successful persons who have purportedly made a lifelong and stable commitment to another person of the same sex,” Nimocks wrote. But the Craig scandal, he continued, “is the true story of homosexual behavior. When the advocates of homosexual expression attempt to sell us the all-American pictures of lifelong, committed same-sex couples, who participate in intimate behavior only in their bedrooms, it is important to know that this is the exception—not the rule.”
At the time, Nimocks had been on staff at ADF for just four months. His eight-year career there—litigating on the front lines of ADF’s long battle against marriage equality; arguing cases defending same-sex-marriage bans before the Court of Appeals for the Fourth Circuit and the Wisconsin Supreme Court; testifying before legislative bodies against “SOGI laws” and arguing for religious exemptions—had just begun. He would go on to become one of the organization’s leading attorneys, as ADF’s director of legal advocacy for marriage and family.
Today, Nimocks is a top litigator in the office of the Texas attorney general, along with two other former ADF attorneys, David Hacker and Heather Hacker. There, Nimocks has played a leading role in two legal challenges to Obama-era rules protecting transgender rights, in which the Texas AG’s office led a consortium of attorneys general from other states. Each time, Nimocks’s team won nationwide injunctions: one against a Department of Education guidance protecting transgender students’ rights in public schools, and the other against an Affordable Care Act rule prohibiting discrimination against transgender people in health care. The education ruling represented a significant victory for ADF, which had been fighting both the Obama guidance and the school districts that adopted it, claiming that it “[put] the privacy and safety of children at risk.”
Kenneth Upton, senior counsel in Lambda Legal’s Dallas office, noted that Nimocks has become “a very powerful person in Texas.” Upton has encountered him in litigation since Nimocks’s days at ADF, and now again in his role in the Texas AG’s Office of Special Litigation. Like other attorneys who have gone up against Nimocks, Upton described him as smart, personable, and courteous. Even so, Upton said, “his views are very extreme”; Nimocks seems to believe “that LGBT people either don’t exist or shouldn’t exist.”
To Upton, Nimocks is “the poster child for what ADF has become. Everything he does is textbook what their mission would be and how they would hope to execute it.” (Nimocks declined to comment for this article.)
And Nimocks is hardly alone. In the past five years, state attorneys general in Arizona, Georgia, Michigan, Missouri, Montana, Nevada, Ohio, Oklahoma, and Wisconsin have hired former ADF staff attorneys, allied attorneys, and Blackstone Fellows. Still others in recent years have brought on ADF attorneys to act as special counsel for the state in cases involving touchstone issues for social conservatives. The Nebraska attorney general, Doug Peterson, has spoken at an ADF conference and called its lawyers “some of the best at what they do.” Attorneys general in Arizona and Oklahoma have brought on ADF staff and allied attorneys to assist in major litigation over abortion and LGBTQ rights. In Mississippi, the governor retained an ADF attorney to represent the state in defending a legal challenge to an anti-LGBTQ law that the organization had helped champion, after the state attorney general declined to defend it.
ADF and Blackstone alumni also serve in staff positions in the US Congress and as attorneys in the United States military, the Department of Justice, and other federal agencies. Others serve as state legislators, City Council members, district attorneys, and judges. Brian Hagedorn, a Blackstone Fellow who went on to serve as counsel to Wisconsin Governor Scott Walker, is now an appellate judge in Wisconsin.
Trump’s election signaled the start of a new phase in ADF’s political reach. So far, Trump has nominated three members of the organization’s “legal army” of allied attorneys to federal judgeships: Kyle Duncan; Jeff Mateer, currently with the Texas attorney general’s office; and Michael Joseph Juneau, a Louisiana attorney. Mateer and Duncan “were both involved in many cases where ADF also played a role,” an ADF spokesperson said. In addition, Steven Grasz, whom Trump nominated to serve on the US Court of Appeals for the Eighth Circuit despite Grasz’s having been rated “not qualified” by the American Bar Association, serves on the board of the Nebraska Family Alliance, which has worked with ADF—including in a successful effort to defeat a bill introduced in the Nebraska Legislature this year that would have provided civil-rights protections to LGBTQ people. (The DOJ did not respond to interview requests for any of these nominees.)
During the presidential transition, Trump tapped Ken Klukowski, the senior legal editor for Breitbart and a vocal ADF supporter, to advise on constitutional issues. Klukowski has said that he attended ADF legal trainings, and he also authored a rosy profile of the organization for Breitbart in 2012, in which he lauded its “massive and growing impact in courtrooms across America.”
As Trump’s nominations, appointments, and actions unfolded, ADF was everywhere. DeVos, whose family has long funded ADF, became the new secretary of education. Ben Carson, who had given at least one speech to an ADF gathering in 2014, came in as Trump’s secretary of housing and urban development. Matthew Bowman, one of ADF’s top litigators on abortion issues and an architect of its opposition to the contraception-coverage benefit under Obamacare, was named deputy general counsel at the Department of Health and Human Services. The department almost immediately made moves to repeal the requirement. (Bowman did not respond to a request for comment.)
ADF has enjoyed access to other Trump officials. In July, Attorney General Sessions gave a closed-door speech to the organization, promising that he would issue guidance ensuring that “religious Americans will be treated neither as an afterthought nor as a problem to be managed.” When Sessions issued that guidance in October, ADF praised specific aspects of its language—“Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government”; “free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs”—an indication that core ADF arguments had been enshrined in official US policy.
In September, the Department of Justice filed an amicus brief in Masterpiece Cakeshop that legal observers described as unprecedented. In a move that First Amendment attorney Greg Lipper called “quite irregular,” Sessions’s DOJ argued for the restriction of a state civil-rights law—possibly telegraphing an intention to restrict federal civil-rights laws as well. Lipper sees the intervention as a sign of “how influential ADF’s view of things is, even at the highest level of the Justice Department.”
Masterpiece Cakeshop isn’t the only ADF case that the DOJ has gotten involved in since Sessions became attorney general. The department has moved to intervene in a case in which ADF is representing a college student who claims that his rights of free speech and free exercise of religion were violated when Georgia Gwinnett College asked him to stop preaching outside of the school’s designated free-speech zones. Citing two landmark ADF cases, the DOJ urged the court not to dismiss the case, arguing that it was in the government’s interest to “lend its voice” because the student’s “First Amendment claims are intertwined with allegations of disparate treatment based on religion.”
Casey Mattox, the director of ADF’s Center for Academic Freedom, said in an interview that the organization has been in communication with the Department of Justice about this and other cases. Mattox refused to identify the DOJ officials with whom ADF had communicated but said, “We’ve provided information to people in the administration; people in the administration asked for information about our cases.” In response to a query, a DOJ official would say only that it was common in “any possible civil-rights violation” for the department to use “preexisting relationships with outside organizations to determine if there is a predicate for an investigation.”
When Waggoner argues Masterpiece Cakeshop before the Supreme Court on December 5, she will have support from the highest levels of the federal government. Francisco, Trump’s solicitor general, asked for argument time in the case, noting that “the United States has a particular interest in the scope of such rights in the context of the Colorado statute here, which shares certain features with federal public accommodations laws.” Until recently a partner at Jones Day, Francisco also has ties to ADF: The organization identified him as one of its allied attorneys in an establishment-clause case that Francisco helped ADF litigate in 2016. It is not a relationship that he has made public; Francisco did not mention the organization by name in the questionnaire he submitted to the Senate Judiciary Committee in advance of his May confirmation hearing. Francisco’s only acknowledgment of his ADF ties was a mention, on a list of speaking engagements, of his participation on a 2015 panel on law-firm recruiting hosted by the Blackstone Legal Fellowship.
Kathleen Clark, a professor at Washington University Law School and an expert on government ethics, suggests that “if [Francisco] had a particularly close relationship” with ADF, “a question would arise as to whether he could provide independent, professional judgment to his new client,” the federal government—in other words, whether he could be impartial in a case being argued by ADF. The Department of Justice declined to comment on whether Francisco’s participation in the case had undergone an ethics review. While at Jones Day, Francisco gave a speech at the Heritage Foundation in which he called for lawyers representing religious groups to “build powerful cases” with “sympathetic plaintiffs” and to “focus on the florist, on the baker, the sincere small businessmen under attack.”
On December 5, with the full force of the United States government behind it, ADF will be asking the Supreme Court to carve out yawning exemptions from civil-rights laws for conservative Christians. Yet in another case seven years ago, in which several families charged that their public school’s use of a church for graduation ceremonies violated the Constitution’s establishment clause, ADF filed an amicus brief that made a very different argument. At the time, the organization casually dismissed the possible religious objections of Jewish and Muslim students, whose faiths may have prohibitions against entering a church. The state, ADF argued, “cannot possibly organize its affairs to comport with the subjective views of all potentially religious groups.”
Editor’s note: This article was edited after publication to clarify ADF’s role in a press conference before the Supreme Court.
Update 11/29/17: In this article, we reported that Alliance Defending Freedom identified Noel Francisco, Trump’s solicitor general, as an ADF allied attorney. We based this identification on an August 16, 2016, press release on the ADF website about an establishment-clause case, Davis v. Shade, in which Francisco was co-counsel with ADF [see screenshot here]. ADF also had also identified Francisco as an allied attorney in a previous press release about that same case, dated June 27, 2016 [see screenshot here].
After publication, ADF contacted The Nation, claiming that Francisco has never been an allied attorney. Moments later, ADF wrote again, saying “it’s our mistake. It’s from this press release that we put out—unfortunately, our media dept. got it wrong, and I didn’t know it until now. Our media dept. is fixing it as we speak.” As of now, both press releases have been rewritten and no longer identify Francisco as an ADF-allied attorney. As we reported, the Department of Justice declined to comment on whether Francisco had undergone an ethics review in order to present arguments in Masterpiece Cakeshop given his apparent relationship with ADF, one that the DOJ neither confirmed nor denied.
ADF also claimed, in the same e-mail, that its allied attorneys are not required to agree to the statement of faith we found linked to within ADF’s FAQs about applying to the program, saying that they do not have to agree to the same statement of faith as employees. That statement of faith includes a commitment to believing in the divinity of Jesus Christ, that God designed marriage for one man and one woman, and that homosexual behavior is “sinful and offensive to God.” Later in the day, that FAQ page, too, was changed. It had read, “The application requires affirmation of agreement with our statement of faith,” linking to the statement we quoted in the story [see screenshot here]. ADF’s website now omits that clause, reading only, “You become a part of the ADF Attorney Network by formally applying and being accepted as an Allied Attorney.” But the link on the web page, before it was changed yesterday, took one to the same statement of faith that employees must agree to.