With Amy Coney Barrett, a once-fringe legal philosophy goes mainstream

Why We Wrote This

Is the First Amendment the most important? Adherents of the conservative Christian legal movement believe so – particularly the Free Exercise clause, which they argue has been given short shrift as America has become less religious.

J. Scott Applewhite/AP
Anti-abortion activists demonstrate at the Supreme Court in Washington, Oct. 5, 2020, as the justices begin a new term without the late Justice Ruth Bader Ginsburg. If confirmed by the Senate, Amy Coney Barrett would mark the culmination of efforts by the conservative Christian legal movement to move from the fringe of the legal world to the mainstream.

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A generation of judges and lawyers are now coming to the fore with backgrounds in fighting to preserve Christianity as a protected class. They believe they need to protect Christians from being targeted and criminalized for their beliefs – even if that means rolling back precedents on abortion and permitting discrimination on the basis of gender or sexual orientation.

The conservative Christian legal movement behind this thought is now poised to move from the periphery of the legal world into the mainstream with the Supreme Court nomination – and quite possible confirmation – of Amy Coney Barrett. Law in the U.S. could shift substantially – starting perhaps as soon as the Supreme Court term that opened this week – toward favoring religious liberty over all other rights, legal experts say.

“True tolerance, where people of different views and faiths, can peacefully coexist,” says Matt Sharp, senior counsel for the nonprofit Alliance Defending Freedom. “That is ultimately what we’re advocating for.”

Some critics are concerned however. In one of her final dissents, Justice Ruth Bader Ginsburg warned of allowing “the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.”

Before she joined 100 fellow law students at the Blackstone Legal Fellowship, Leah Boyd, now a practicing attorney in Amarillo, Texas, felt discouraged and hopeless in her first year of law school.

These were the people who were going to be shaping the laws and the culture in the United States, she said in a 2015 video promoting the fellowship, “and they have absolutely no moral compass.”

“Just to know that I was not alone was encouraging, and helped me to not give up,” she added.

The Blackstone fellowship, organized for 20 years by the nonprofit Alliance Defending Freedom, aims to train Christian lawyers to “foster legal systems that fully protect our God-given rights.” The program’s student and teacher alumni now include dozens of law clerks, a U.S. senator, and at least six federal judges – most notably Judge Amy Coney Barrett, who could soon become the youngest member of the U.S Supreme Court.

The reach of the ADF and other conservative Christian legal organizations is further still. If Judge Barrett is confirmed, it would represent a culmination of decadeslong efforts by the conservative Christian legal movement to move from the periphery of the legal world into the mainstream. And it is coming at the same time that fewer Americans – just 65% – identify themselves as Christian.

The ADF is one of several richly funded conservative Christian legal organizations (CCLOs) that constitute that movement, training lawyers, arguing – and winning – high-profile religious liberty cases in the courts, and increasing their influence on policy and politics. That movement is now reaching maturity, and law in the U.S. is thus poised to shift – starting perhaps as soon as the Supreme Court term that began this week – substantially toward favoring religious liberty over all other rights, legal experts say.

Indeed, among the movement’s stated goals is the protection of free exercise of religion as a fundamental right above all others. Such a shift in the law could prompt the diminishment of other rights, such as abortion access and same-sex marriage. CCLO attorneys, for their part, say that they just want to ensure that courts give religious beliefs the respect and protection they deserve.

“True tolerance, where people of different views and faiths can peacefully coexist ­­– that is ultimately what we’re advocating for,” says Matt Sharp, senior counsel for the ADF.  

Amanda Andrade-Rhoades/Sipa USA/AP/File
John Bursch, of the Alliance Defending Freedom, addresses the press outside the Supreme Court in Washington on Oct. 8, 2019, after oral arguments for R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. The Supreme Court ruled 5-4 that it was illegal for businesses to fire employees on the basis of gender identity or sexual orientation.

Judge Barrett, a former professor at Notre Dame Law School whom President Donald Trump appointed to the 7th U.S. Circuit Court of Appeals in 2017, is expected to begin her confirmation hearings for the Supreme Court next week. A devout Roman Catholic, she has no direct affiliations with any CCLOs, and in her brief time on the 7th Circuit she has not developed a deep record on religious liberty or other rights, like abortion and same-sex marriage, with which it has often conflicted.

If confirmed, she would join a conservative high court that has been incrementally expanding free exercise protections along with other rights that conservative Christians see as limiting their religious freedom.

CCLOs began to form around this issue decades ago, says Jordan Sekulow, executive director of another leading Christian legal organization, the American Center for Law and Justice (ACLJ). The establishment clause in the First Amendment, which prohibits the establishment of religion by Congress, “had basically eaten the free exercise of religion away.”

“It shouldn’t be more important than any other First Amendment right, but it was trampled on,” he adds. “And I wouldn’t say it’s come back.”

Outsiders to insiders

The rise of CCLOs was prompted by, and modeled on, the successes of progressive groups like the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund (LDF).

“In the 1950s, ’60s, ’70s, it was very much a story of progressive religious impulses that held political sway,” says Laura Olson, a political scientist at Clemson University who researches religion and politics.

While the Rev. Martin Luther King Jr.’s group successfully lobbied for civil rights legislation like the Voting Rights Act, the NAACP LDF won a series of court cases beginning in the 1930s that led to the high court’s landmark Brown v. Board of Education ruling that ended racial segregation in public schools.

The conservative religious movement began in the late 1970s and ’80s as a reaction to what it saw as an erosion of traditional family values and government intrusion on religion – most notably to end racial segregation in Christian schools. But groups like Jerry Falwell Sr.’s Moral Majority still struggled to break into Washington’s elite circles.

“They’ve been outsiders to the mainstream of the conservative legal movement,” says Joshua Wilson, a political scientist at the University of Denver who studies the Christian conservative movement.

So, he adds, “they developed their own institutions and resources to make a parallel conservative Christian movement.”

Conservative legal groups like the ADF, ACLJ, the Becket Fund, the First Liberty Institute, and the Thomas More Society were all formed in the 1990s.

Most of these groups are tax-exempt 501(c)3 nonprofits, and thus not required to publicly identify donors. But they are well funded, with the ADF raising almost $61 million, the ACLJ almost $23 million, and the Becket Fund almost $7 million, according to their most recent 12-month tax-filing period. (For comparison, Lambda Legal, a national nonprofit that advocates for LGBTQ rights, raised just over $17 million in the 12 months of its most recent tax filing.)  

And unlike their common opponents on the left, conservative Christian legal groups have always focused entirely on religious liberty issues.

“They have a longing for what religious liberty protections were before 1990,” says Katherine Franke, a professor at Columbia Law School and founder-director of the school’s Law, Rights and Religion Project.

“They’re trying to have the courts reread the Constitution in a way that elevates religious liberty rights over all other individual rights, as well as the public interest.”

“Positive change”

Some of the Supreme Court’s more conservative justices agree. This week, in a short opinion declining to hear a case related to same-sex marriage, Justices Clarence Thomas and Samuel Alito criticized Obergefell v. Hodges, the court’s 2015 ruling legalizing same-sex marriage, as having “ruinous consequences for religious liberty” by “choosing to privilege a novel constitutional right.”

The court’s recent grappling with religious liberty claims has focused primarily on two issues: religious institutions’ ability to access state funding, and religious individuals’ ability to exercise their beliefs around sexual norms in public life and in their private business.

For the most part, the court has narrowly favored religious liberty. Religious institutions and businesses have been granted exemptions from contraception mandates. Religious schools have been given access to state funding. A state has been rebuked for punishing a Christian cake shop owner for refusing to make a cake for a same-sex wedding.

Many of these cases have been pushed by CCLOs.

Of the 11 cases it has been lead counsel for at the Supreme Court, the Becket Fund has won nine. The ADF had more Supreme Court wins in First Amendment cases than any other litigant between 2013 and 2017, according to Empirical SCOTUS. In every religious liberty case the court hears, there are usually friend-of-the-court briefs filed by CCLOs.

The hundreds of mostly young, conservative federal judges appointed by President Trump – not least Supreme Court Justices Neil Gorsuch and Brett Kavanaugh – have certainly helped in that regard, say lawyers for conservative Christian groups.

“We’ve seen a lot of positive change on the courts,” says Michael Berry, general counsel for the First Liberty Institute. “By and large the president [has a strong] record of nominating originalist, constitutionalist judges.”

And among the more than 200 judges the Senate has confirmed are six who are alumni of conservative Christian legal organizations. Those six include Kyle Duncan, a 5th Circuit Court of Appeals judge who was general counsel for the Becket Fund, and  Lawrence VanDyke, a 9th Circuit Court of Appeals judge who was a Blackstone fellow and listed by the ADF as an “allied attorney.”  

Greg Nash/AP
Judge Amy Coney Barrett, President Donald Trump’s nominee for the U.S. Supreme Court, meets with Republican Sen. Bill Cassidy of Louisiana on Capitol Hill in Washington Oct. 1, 2020. Confirmation hearings are scheduled to begin Oct. 12, with the Repubilican-led Senate planning to vote before Election Day.

 

Judge Barrett’s short tenure on the 7th Circuit hasn’t brought any rulings from her on issues like abortion, marriage equality, or free exercise rights. But she is a popular nominee for social conservatives, and if confirmed would likely align with the court’s most conservative justices. 

Affiliations with nonprofit legal groups are by no means disqualifying for a judge. Justices Thurgood Marshall and Ruth Bader Ginsburg, totemic jurists for progressives, spent much of their careers with the NAACP and the American Civil Liberties Union. And judges are, regardless, expected to set their personal beliefs aside in deciding cases, unlike lawyers, who are expected to advocate fiercely for their clients. 

But working in a Christian legal organization, or as a Christian lawyer, can mean being “a different kind of lawyer,” as Judge Barrett described in a 2006 commencement speech at Notre Dame Law School – the school where she was voted “professor of the year” three times.

“Your legal career is but a means to an end,” she told the graduates. “That end is building the kingdom of God.”

A landmark term?

If you ask CCLO attorneys what the “end” is, most say it’s for the free exercise of religion to have the protection and deference of a fundamental right.

In a landmark 1990 opinion, the late Justice Antonin Scalia explained why courts have chosen to not do that.

The case, Employment Division v. Smith, concerned whether it was unconstitutional to deny state unemployment benefits to two Native American men for ingesting peyote, a controlled substance, as part of their religious ceremonies.

But obligating someone to obey a law only when it coincides with their religious beliefs, wrote Justice Scalia, “permit[s] him, by virtue of his beliefs, ‘to become a law unto himself.’”

The case this term concerns a Catholic agency being banned from the city of Philadelphia’s foster program because it refuses to license same-sex couples. The court – which by the scheduled Nov. 4 oral argument may include a newly appointed Justice Barrett – could overturn Scalia’s opinion in Smith. As a result, it could be much easier for religious objectors to gain exemptions from laws.

“Some religious exemptions are appropriate and necessary,” says Professor Franke, the Columbia Law School scholar. But “they need to be given sparingly, or else we really undermine democracy itself.”

Special protection for religious liberty is especially needed now “to ensure that those viewed as ‘out of step’ [with social and cultural change] are not effectively expelled from society,” writes Catholic Archbishop Jerome Listecki of Milwaukee in a friend-of-the-court brief filed in the case.

“That anticipated time is already here,” he adds, quoting Justice Alito’s dissent in Obergefell that those with “out of step” views “will risk being labeled as bigots and treated as such by governments, employers, and schools.”

Persecution of Christians is a major concern for CCLOs and jurists like Justice Alito. In one concurrence last term, he compared the anti-Catholic animus that motivated 18th-century laws banning public funding for religious schools to the racial animus that motivated Jim Crow laws. He illustrated the point with a political cartoon from the time depicting Catholic priests as crocodiles slithering toward schoolchildren.

The court struck down that state ban, continuing a trend of slowly but steadily strengthening free exercise protections. This term that pace of change could accelerate – especially if Judge Barrett is confirmed.

Justice Ginsburg, in one of her final dissents, criticized the court’s movement in this direction. The majority, she wrote, “casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,” allowing “the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.”

For their part, attorneys at CCLOs say they are fighting for all faiths, not just Christianity, and that they are just fighting for the freedom to practice their own faiths, not impose them on others.

“If we’re able to protect and advance religious freedoms for minority faith groups, I think that benefits all other faith groups, even those in the perceived majority,” says Mr. Berry, the First Liberty Institute’s general counsel.

He’s been at First Liberty for eight years, and he says each year has been busier than the last.

“I’m not sure it will ever end,” he adds. “So long as there are people who want to silence dissent and silence people with a religious belief they disagree with, we will always have work.”

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