Manufacturing culture war test cases
A Washington Post investigation pulled back the curtain on a legal advocacy group’s decades-long efforts to sherpa conservative culture war test cases before the U.S. Supreme Court.
The Supreme Court ruled in June that Colorado’s public accommodations law could not force web designer Lorie Smith to design wedding web sites for gay couples because it violates her religious beliefs. The 6-3 decision was not about discrimination, Justice Neil Gorsuch wrote. No. Coercing Smith to create a message with which she disagrees violates her First Amendment rights.
Smith, SCOTUSblog reminds us, is “a devout Christian who owns a website- and graphic-design business [who] wanted to expand her business to include wedding websites – but only for heterosexual couples, and she wanted to post a message on her own website to make that clear.”
Here’s what stood out as weird. Smith cited a request from a man named “Stewart” as the basis for her lawsuit. Except when contacted by The New Republic, Stewart knew nothing about the case (NPR):
“I was incredibly surprised given the fact that I’ve been happily married to a woman for the last 15 years,” said Stewart, who declined to give his last name for fear of harassment and threats. His contact information, but not his last name, were listed in court documents.
That much we knew. And now?
Among the wedding vendors represented by the Christian nonprofit Alliance Defending Freedom were a photographer from Kentucky, videographers from Minnesota and a pair of Arizona artists who created stationery. Each challenged local laws barring businesses from discriminating based on sexuality, which the plaintiffs said violated their First Amendment rights.
In its petition asking the high court to hear the Colorado case, ADF cited favorable decisions it had won in those three cases. Winning meant its clients were free to express their beliefs about marriage through their work “without fear of government punishment,” ADF said in a statement after one ruling.
But an examination by The Washington Post of court filings, company records and other materials found that two of the three vendors cited in ADF’s September 2021 petitionhad stopped working on weddings, and the other did not photograph any weddings for two years. Three additional vendors represented by ADF in similar lawsuits elsewhere also abandoned or sharply cut back their work on weddings after they sued local authorities for the right to reject same-sex couples, The Post found.
Such developments led an opposing lawyer and a judge in two of the cases to separately question whether ADF’s plaintiffs truly intended to exercise the rights they sued for — or if their claims were instead manufactured to be test cases in a national litigation campaign.
Astroturf meets astrochurch
It gets better. ADF was founded in 1993, the Post reports. One of its founders, Marlin Maddoux, “argued in a book published that year that Christians should ‘shift to an all-out culture war’ and build a ‘well-funded, well-trained army of religious rights attorneys’ to prosecute it.”
ADF also had a hand in formally establishing companies for some of its clients, The Post found. Lawyers associated with the legal group signed incorporation paperwork and helped to draft company policies that were later used as a basis for the wedding lawsuits. ADF promoted some of its lawsuits with videos and images of plaintiffs photographing women in bridal gowns at what The Post found were staged events featuring ADF employees.
Legal advocacy groups that challenge federal law in court often seek out individuals who are well-suited to serve as the face of their lawsuits. But ADF’s behind-the-scenes involvement in the businesses and public profiles of a nationwide roster of similar clients — some of whom subsequently showed wavering commitment to the weddings industry — reflects how aggressive the group has been in pursuit of that goal as it sought to overturn laws barring discrimination based on sexual orientation.
It gets better.
In an interview with The Post, ADF senior counsel Jonathan Scruggs said the group’s clients had sincere interests in working in the wedding industry. “These are real companies, real businesses, people who are trying to live their lives,” Scruggs said.
Scruggs, who argued several of the cases in court, said the fact that multiple ADF plaintiffs abandoned the wedding industry did not undermine their claims. “Unfortunately, sometimes in the natural progression of people’s businesses, they happen to close,” Scruggs said.
ADF seems to exist to manufacture culture war test cases for “conservative Christian leaders who opposed LGBTQ+ rights.” The Scottsdale, Ariz. legal firm with 90 lawyers on staff and “maintains a nationwide network of more than 4,000 “allied attorneys” — described as “Christians committed to using their God-given legal skills to keep the doors open for the Gospel.” ADF “collected nearly $97 million in contributions in the 12 months ending June 2022 — a 27 percent increase over the previous year and almost double its 2016-17 total.”
Read the whole thing. Smith’s is not the only case ADF fought in which the plaintiffs subsequently moved on to other ventures than the ones on which ADF “manufactured cases to expand religious exemptions to anti-discrimination laws.”
We’ve seen the same thing with the Texas abortion vigilante law and North Carolina’s independent state legislature theory case. The right complained bitterly for years about “activist” judges until they had in place enough of their own activist judges.