Henry Farrell: Your book describes the various Christian conservative legal organizations (CCLOs). Which are involved in the current case, and at what stage did they get involved?
Daniel Bennett: The key actor supporting the case is Alliance Defending Freedom. It has been involved with this case since 2012 and has been touting its defense of baker Jack Phillips since 2013. Since then, ADF has been active in the Colorado court system and now at the U.S. Supreme Court. If its media outreach is any indication, ADF considers Masterpiece Cakeshop to be one of the most important cases it has ever been involved with.
Taking this kind of case is not new territory for ADF, as it has a dedicated center focusing on “freedom of conscience” issues. In addition to Phillips, ADF has defended several individuals who have argued that they were forced to choose between violating their conscience and keeping their jobs or staying in business. Phillips’s case is simply the first of these cases to make it to the Supreme Court.
Several other actors in the Christian legal movement have filed amicus curiae briefs supporting Phillips. Christian conservative legal organizations First Liberty, the Freedom of Conscience Defense Fund, Liberty Counsel, National Legal Foundation and Thomas More Society all have their names on amicus briefs filed for Phillips. Former American Center for Law and Justice attorneys Thomas Monaghan and Walter Weber, former ADF attorney Nate Kellum, and ADF and ACLJ veteran attorney David French filed their own briefs, and Thomas Berg and Douglas Laycock — big names in this movement — filed a brief on behalf of the Christian Legal Society. Finally, Becket (formerly the Becket Fund for Religious Liberty, the powerhouse group sympathetic to many of the concerns of the Christian legal movement) filed a brief backing Phillips.
In short, this case has drawn a great deal of attention from the broader movement.
HF: You describe how the Supreme Court’s Obergefell decision (banning states from refusing to marry same-sex couples) created a crisis for conservative organizations devoted to traditional marriage. How are concerns about traditional marriage playing out in the current court case?
DB: After the Obergefell decision, several attorneys I interviewed were understandably disappointed and frustrated, but they also expressed cautious optimism for the future. Specifically, one attorney said, “Our hope is that, now that the marriage issue has been settled, [Justice Anthony] Kennedy will come back to the side of religious freedom.” While unconvinced about the new legal definition of marriage, CCLOs were bullish about the next steps of this debate.
With same-sex marriage legally decided, the battle at the heart of CCLO advocacy has shifted toward those objecting to same-sex marriage in the marketplace. These includes bakers like Jack Phillips, but the precedent in Masterpiece could reach widely into other areas of law and policy.
For example, during the oral argument in Obergefell, Justice [Samuel A.] Alito questioned Solicitor General Donald Verilli about whether colleges and other nonprofit organizations could lose their tax-exempt status by adhering to a traditional understanding of marriage and sexual relationships in their hiring practices. “I’m not going to lie,” Verilli said, “it’s going to be an issue.”
Attorneys in the movement took notice. “The candidness of the answer surprised me,” one lawyer told me, but “knowing that’s the goal of the other side doesn’t surprise me at all.” With the marriage issue decided, CCLOs and their lawyers are shoring up their defenses in areas where anti-discrimination measures and religious liberty could collide.
“From a religious liberty perspective,” this same attorney told me, “I fully expect the other side will increase their efforts to use public accommodation and employment discrimination laws to get full participation and agreement that [Obergefell] was the right decision.”
Thus, while Obergefell was decided two and a half years ago, the ramifications from that decision will be felt for years to come.
HF: You note that Christian conservative legal organizations have shifted their frame, so that they seek less to defend their preferred definition of marriage and instead push for religious liberty. How do they understand religious liberty, and how does this understanding shape their legal strategy in this case?
DB: While most CCLOs speak broadly of religious liberty, in practice this has mostly meant defending Christian clients. In searching through nearly 15 years of Christian legal movement news releases, I found very few references to non-Christian clients on issues of religious liberty. That said, most CCLOs argue that their defense of religious liberty is beneficial to all faith traditions, regardless of the religious beliefs of the specific client. “We’re a Christian ministry,” said one ADF attorney, “but a win for free exercise benefits all faiths.”
That said, there are a couple CCLOs who do not share this view. Notably, the Thomas More Law Center is vocally opposed to Islam, with one of their attorneys describing the religion as a “Trojan horse” for an insidious political movement.
Moreover, the ACLJ has been less than warm toward Muslims. The group opposed the Park51 project (derisively called the “Ground Zero mosque”) on the grounds that debate over whether to grant the requisite permits was not about religious liberty at all but was “an American issue.”
As for what religious liberty means to CCLOs, it is not merely the freedom to believe. Instead, it is the freedom to act and to practice. While the free-speech clause and compelled-speech doctrine feature heavily in Masterpiece, religious liberty had crucial consequences for Phillips’s actions in this case. Phillips objects to making cakes for a same-sex wedding ceremonies because of the nature of his religious beliefs, and is thus arguing for a robust understanding of religious liberty in the public square. This is consistent with how most CCLOs understand religious liberty.
HF: Your book talks about occasional disagreements and competition between these groups, but concludes that they are trying to create common ground for the future. Are they succeeding in creating greater unity?
DB: Despite agreement on a core set of issues, CCLOs are not in lockstep with one another. Early on in the movement, there were often tensions over cases and resources, since, as one attorney told me, “We all want the good case, the juicy case, the test case.”
In one example from 2010, Liberty Counsel blamed ADF for a federal judge’s ruling striking down California’s Proposition 8, the state amendment defining marriage as between one man and woman. ADF had prevented LC from becoming involved with the case in earlier stages, citing strategic differences.
Nevertheless, the attorneys I interviewed each highlighted the value of working alongside one another toward a shared goal. Some spoke positively of competition between the organizations as helping to refine the final legal product. Others spoke of the importance of having multiple sets of eyes on the same issues. And others cited new cultural and political realities as requiring greater collaboration among their groups.
For example, under the Affordable Care Act, the Department of Health and Human Services required employers to offer insurance plans that provided for certain forms of contraception. When some employers — including the Green family, which owns a majority stake in the craft retail chain Hobby Lobby — objected to the HHS requirement, it created a flood of litigation that reached the Supreme Court in multiple stages.
“If you look at the marriage cases and the HHS cases,” one attorney told me, “there were a substantial number of amicus briefs filed. And that’s because of coordination. We collaborate, and we have to collaborate, especially at the point we’re at in the culture.”
This is not to say that the Christian legal movement has matured completely. In speaking with movement attorneys, there is still the potential for the tensions of the past to emerge from inevitable competition over limited resources and cases. But given recent cultural changes and the resulting challenges, CCLOs are in many ways closer today than at any point in the movement’s history.