Two days before the announcement of Justice Anthony M. Kennedy’s retirement, a woman who stood to gain from it was on the steps of the Supreme Court once again. Kristen Waggoner’s blond bob was perfectly styled with humidity-fighting paste she’d slicked onto it that morning at the Trump hotel. Her 5-foot frame was heightened by a pair of nude pumps, despite a months-old ankle fracture in need of surgery. On her wrist was a silver bracelet she’d worn nonstop since Dec. 5, 2017, the day she marched up these iconic steps, stood before the justices and argued that a Christian baker could legally refuse to create a cake for a gay couple’s wedding.
Her job was to be the legal mind and public face of Alliance Defending Freedom., an Arizona-based Christian conservative legal nonprofit better known as ADF. Though far from a household name, the results of ADF’s work are well known. Masterpiece Cakeshop v. Colorado Civil Rights Commission was just one of ADF’s cases at the Supreme Court this term. The organization has had nine successful cases before the court in the past seven years, including Burwell v. Hobby Lobby, which allowed corporations to opt out of covering contraceptives based on religious beliefs. And it was ADF that created model legislation for “bathroom bills,” which bar students from using restrooms that don’t correlate to their sex at birth.
Opponents say ADF is seeking to enshrine discrimination into law. But to its supporters, ADF is fighting for the right of Christians to openly express their faith — and winning.
Or as ADF’s CEO, Michael Farris, put it: “We would say the combination of hard work and God’s blessing appears to be paying off.”
With Donald Trump in the White House, a savvy media strategy boosting donations and a new Supreme Court justice on the way, ADF is poised to become more influential than ever.
But first, Waggoner was about to find out whether the organization had a chance of returning to the court for another high-profile battle. ADF’s win in Masterpiece was considered to be a narrow ruling. The justices avoided the case’s central question — whether the business owner had the right to decline to make a creation for a same-sex wedding — but acknowledged it would have to be answered someday, in some future case.
If Waggoner has her way, that day will come soon, and the case will be one of hers. ADF has four cases pending in the lower courts regarding Christian business owners who will serve gay people but won’t make custom creations for same-sex weddings. On this morning in late June, the court was going to decide the fate of one of them: Barronelle Stutzman, a florist from Washington state.
Lower courts had ruled unanimously against her. Because the justices had just ruled in Masterpiece, they were unlikely to take her case immediately. Waggoner knew they could decline to touch it altogether. Or they could order the Washington courts to give Stutzman a do-over — giving ADF a clear path back to the Supreme Court.
Waggoner kept her eyes on her phone, where the SCOTUSblog website was posting minute-by-minute updates about what was happening inside the court. News cameras waited for her reaction. Her silver bracelet dangled on her wrist. It was engraved with a line from the Bible’s Book of Esther: “For such a time as this.” Nine Supreme Court cases in seven years and ADF had won them all. She was hoping it was such a time that God would grant them another.
Seven months earlier, in a D.C. hotel room, Waggoner's 15-year-old daughter, Grace, awoke in a panic. An alarm clock was going off, and beside her, her mom was still asleep. With her father, brother and grandparents, Grace had flown in from Arizona to be here for this morning, the most important day in her mom's career. They all had to be at the Supreme Court with the baker, Jack Phillips, in just a few hours. Grace started shaking her mom awake.
“I had purposely set the alarm for 10 minutes early and I had a second alarm set,” Waggoner said, laughing as she told the story. “But it was very sweet.”
This work had long been a family affair for the 45-year-old attorney, who grew up in Longview, Wash., as the daughter of a Christian school superintendent. She credits her father with instilling the values and views that populate the 121 active cases she oversees at ADF, where there are 63 lawyers operating on a budget of more than $50 million.
To describe these cases is to traffic in loaded language. ADF regularly sues colleges for creating versions of “safe spaces” that it sees as First Amendment violations. What some people call birth control, ADF calls “abortion-inducing drugs” and argues that the government is forcing those who oppose abortion to provide them. Allowing transgender students into their chosen bathrooms is, to ADF, failing to protect the privacy of the majority of students.
Asked whether she believes it is possible for a person to be transgender, Waggoner said she believes “it is possible to be confused about your gender.” Waggoner answers all questions about her work, even on the most contentious of issues, with a smile. Her colleagues say she is always, always smiling. Her incessant pleasantness can come off as strategic, a way of dismantling those trying to paint her as cruel or intolerant. She says joy is just the mark of a person of faith.
Critics point to LGBT-disparaging rhetoric from the man who helped found ADF in the 1990s as proof of what the organization is really after. The Southern Poverty Law Center classifies ADF as a “hate group,” a claim ADF has responded to by calling the SPLC a “radical leftist organization.”
“Whether they are truly committed to religious freedom, or whether they are using it as a way to package and sell their opposition to homosexuals and abortion, I don’t know,” said the American Civil Liberties Union’s David Cole, who represented the gay couple in Masterpiece.
Those at ADF believe their positions on same-sex marriage and abortion should be irrelevant when it comes to the First Amendment. In court briefs, press releases and interviews, they repeat mantras such as “Tolerance is a two-way street” and “If we want freedom for ourselves, we must extend it to others.” In other words, it doesn’t matter if you don’t agree with the baker’s views. The government can’t force him to express something that goes against them.
But what counts as expression? When Waggoner stood before the justices in December, they bombarded her with rapid-fire versions of this question. A pre-made cake in the cooler? Not expression, Waggoner assured them. The person who designs the invitations? That would be expression, she said. How about the hairstylist? The menu designer? The jeweler? Her answers came just as fast: No. Yes. It depends.
“Who else then?” Justice Ruth Bader Ginsburg asked. “Say the person who does floral arranging, who owns a floral shop?”
Thinking of Stutzman, Waggoner smiled. She was ready to answer the question.
The florist herself was in the back of the courtroom. ADF had flown her in to watch, a preview of what she might one day face. Stutzman and her husband had spent hours waiting in line to get a seat inside, but ended up sitting so far back, she couldn't make out what the justices were saying. She tried to glean meaning from their body language instead.
Because of the baker’s case, her own case had been put on hold. Again. It had been five years since she had declined to make floral arrangements for the wedding of her client Rob Ingersoll, since the attorney general of Washington state had sued her and the shop she inherited from her mother, Arlene’s Flowers. Five years of hate mail, of vile phone calls, of going on TV to say again and again: “I serve everybody who comes in my shop” and “Because my faith teaches me that marriage is between a man and a woman, that just wasn’t something I could do for Rob.”
Constantly putting Stutzman before the media is Waggoner’s strategy, which became ADF’s strategy when she was put in charge of their legal division in 2014. Each big case — the printer who won’t make shirts for a pride parade, the teen girl who feels unsafe with “a man” in her school bathroom, the pregnancy centers accused of misleading women — gets a mini-documentary about their personal journeys and dedication to their faith.
“If we can’t show their souls to people, their constitutional freedoms will falter,” Waggoner said. “We have to show what is at stake.”
Come June, as Waggoner was on the steps of the Supreme Court, Stutzman was waiting for the news of her case's future in her shop in Washington state. She was sorting bills in her office. Her desk was filled with cards, letters and Bibles sent from her supporters, her favorite of which was from a youth group. She was always worrying whether the next generation has what it takes to defend their faith.
Just after 6:30 a.m., her phone rang. She braced herself for the news.
“GVR,” Waggoner shouted into her ear. “GVR!”
Stutzman knew what that meant: Grant, vacate, remand. The case was coming back to Washington state. Her previous losses no longer mattered. They still had a chance.
“The videographer will be at the shop at 7:30,” Waggoner said. They needed to film a reaction video to send to reporters. Then would come a media call, a few more interviews, a two-hour drive to Spokane so she could appear on Fox News the next morning. An earnest plea for donations would appear on the ADF website: “The threat to Barronelle’s religious freedom is a threat to your religious freedom.”
The next morning, Waggoner was back on the Supreme Court steps to hold a news conference celebrating ADF’s second win of the term, NIFLA v. Becerra , a case about California’s mandate that religious pregnancy centers notify women that the state provides free or low-cost access to abortions.
She stepped up to the podium and read a line from the majority opinion, written by Justice Kennedy.
“Government must not be allowed to force persons to express a message contrary to their deepest convictions,” she read. That line, she was sure, was going to help Stutzman and so many of ADF’s cases.
The next day, a great week got better. At the news of Kennedy’s retirement, Waggoner whooped, loudly, in the middle of the law office. ADF quickly put out a press release: It looked forward to a justice who would uphold “the original public meaning of the Constitution.” That night, Waggoner and her daughter went to dinner and a movie in celebration of a week — a year, really — that had gone in their favor. Then, back in her room in the Trump hotel, she returned to her work.