The Rise of Christian Conservative Legal Organizations
By Daniel Bennett | June 10, 2015
Two years ago, a longtime customer walked into Barronelle Stutzman’s flower shop with a request: the customer—who is gay—asked Stutzman to provide flowers for his wedding. Stutzman declined, citing her Christian faith’s objections to same-sex marriage, and was eventually charged with violating Washington’s state anti-discrimination statute. With Stutzman facing thousands of dollars in fines, attorneys with Alliance Defending Freedom stepped in to defend her in court. Today, the case is under review at the Washington Supreme Court, where Stutzman’s attorneys are hoping for a reversal of a lower court’s ruling against her.
“Barronelle and numerous others like her around the country have been more than willing to serve any and all customers, but they are understandably not willing to promote any and all messages,” Kristen Waggoner, one of Stutzman’s attorneys, said in a statement. “No one should be faced with a choice between their freedom of speech and conscience on one hand and personal and professional ruin on the other.”
Alliance Defending Freedom—a legal organization with a multi-million budget, several regional offices, and more than three dozen staff attorneys—has specialized in taking on these types of cases. But it’s not alone. ADF is just one of many Christian conservative legal organizations, or CCLOs, that rose to prominence in the 1980s and 1990s. These groups promote and defend the interests of the Christian conservative community in the legal arena, with activities ranging from filing legal briefs and arguing at the Supreme Court to educating public school officials on the legality of after-school Bible clubs. Included in their ranks are the Liberty Counsel, which is tied to the law school of Liberty University, founded by the late Jerry Falwell, and the American Center for Law and Justice, which was founded by Pat Robertson as the Christian Right’s response to the American Civil Liberties Union.
But who exactly are these organizations? What do they do? How do they differ from one another? And what does the future hold for the Christian legal movement? Examining CCLOs not only sheds light on an influential legal community in the United States—it shows how a broader political movement has tried to adapt to new challenges in a changing society.
ALTHOUGH MANY CHRISTIAN Conservative legal groups dot the current American legal landscape, it has not always been this way. For decades, legal advocacy—that is, marshaling legal tactics in support of broader policy goals—was a tool of the political left in the United States, dominated by groups like the American Civil Liberties Union and the NAACP Legal Defense Fund. Traditional outlets of political engagement were generally unsuccessful for these groups, due to the unpopular nature of their beliefs or the lack of political support for their goals. Legal advocacy gave these marginalized peoples victories unavailable to them otherwise.
Eventually more established, conservative interests saw the value of legal advocacy. The Federalist Society, organized at various law schools in 1982, provided an outlet for conservative legal ideas in an environment traditionally dominated by liberals. Today it is arguably the most influential conservative legal community in the United States, supporting libertarian, business, and socially conservative legal interests.
The 1980s also saw the emergence of expressly Christian legal interest groups. John Whitehead’s Rutherford Institute was one of the earliest of these, focusing mainly on defending religious freedom and opposing abortion. And though its mission has since evolved beyond the Christian legal movement, Rutherford’s successes helped set the stage for the CCLOs active today.
Just as the Federalist Society spurred and lent credibility to the conservative legal movement, the Christian Right did the same for CCLOs. Specifically, elites in the Christian Right, sensing the promise of legal advocacy for their causes, lent organizational support and resources to new legal interest groups: Pat Robertson founded both the National Legal Foundation and the American Center for Law and Justice; James Dobson, D. James Kennedy, and Bill Bright (among others) were instrumental in organizing Alliance Defending Freedom; and Jerry Falwell lent Liberty Counsel institutional support. Without this early assistance from the Christian Right, many CCLOs would not exist as we now know them.
Today, CCLOs generally focus on three major issues: strengthening religious liberty, supporting the traditional family, and defending the sanctity of life. CCLOs uniformly take the position that religious liberty is crucial in a thriving society, even when exercised in ways the broader culture deems unpopular—as is the case with Barronelle Stutzman. Likewise, most CCLOs take an accommodationist approach to the Establishment Clause of the First Amendment, arguing that public displays of religion—such as crèches and displays of the 10 Commandments—are consistent with the Judeo-Christian roots of the country. CCLOs’ work on religious liberty and establishment illustrates the flexibility of legal advocacy, emphasizing that lawsuits are not necessary for success: Sometimes the mere threat of a lawsuit may be enough for victory, as is often the case when dealing with public schools and local governmental agencies.
For CCLOs, marriage is more than a legal contract: it is a union between a man and a woman ordained by God with enormous cultural significance. Thus, these groups uniformly oppose expanding marriage rights to same-sex couples. Their past arguments have included appeals to the religious foundations of marriage, but more recently they have relied on controversial and largely debunked research suggesting children are raised better by a mother and father than parents of the same sex. They have also emphasized the importance of the democratic process in defining what marriage is, taking jabs at “unelected judges” redefining the institution. Opposing abortion also remains a critical element of their advocacy—and one where they have been making gains at the state level in creating more abortion restrictions, most notably through supporting “personhood” amendments to state constitutions. CCLOs have also defended pro-life protesters and supported “conscience clause” protections for doctors and pharmacists opposed to abortion and contraception. Here, attorneys appeal to broad rights like free speech and religious exercise, downplaying the content of the activity—namely, opposition to abortion—and focusing on the activity itself. In doing so, CCLOs highlight their clients’ expressive freedom, a value familiar and popular among most Americans.
WHILE DEFINING “CHRISTIAN Conservative legal organization” is in some sense a subjective task, one definition is that it is a multi-issue organization dedicated to the interests of Christian conservatives primarily through legal strategies and tactics. There are several groups that can be identified according to this definition, a testament to the growth of the Christian legal movement in the United States:
Alliance Defending Freedom – Founded in 1994, ADF was originally a funding source for other legal interest groups, but transitioned into direct advocacy and case sponsorship in the early 2000s. Led by Alan Sears, an attorney with roots in the Reagan administration, it has a network of affiliated attorneys around the country to go along with staff attorneys in several areas of law and policy. With annual revenue approaching $40 million, ADF boasts an impressive media presence and sponsors a series of legal training programs for law students and seasoned attorneys alike.
American Center for Law and Justice – Since its inception in 1990, the ACLJ has been led by the most well-known Christian conservative attorney in the country: Jay Sekulow. Under his leadership the ACLJ has grown into perhaps the best recognized CCLO in the country, and rivals ADF in terms of overall resources. The ACLJ is officially tied to Regent University School of Law (also founded by Pat Robertson), and has established branches overseas in Africa, Asia, and Europe.
Center for Law and Religious Freedom – The oldest of the CCLOs, the CLRF was founded in 1980 as the advocacy arm of the Christian Legal Society. Today the CLRF is small, with only one attorney—senior counsel Kim Colby—working full-time. But it is active nonetheless, especially in filing amicus briefs and writing statements for public consumption.
Liberty Counsel – Mat Staver founded LC in 1989 out of his private practice in Florida. Since then, it has grown into an active, well-funded ($6 million annually) organization with its own policy office and educational arm. Staver is still in charge, along with his wife, Anita, and several staff attorneys. Like the ACLJ, LC is also tied to a law school: the Liberty University School of Law, where Staver served as Dean for several years.
Liberty Institute – Based in Texas, LI was born of a marriage between the Free Market Foundation and Liberty Legal Institute, founded in 1972 and 1997, respectively. Kelly Shackleford heads the organization, which includes several staff attorneys, an affiliated network of pro bono attorneys, and over $8 million in annual revenue. LI is especially active on religious freedom issues, but also tackles other issues of importance to Christian conservatives.
National Legal Foundation – One of the older groups on this list, the NLF was founded in 1985. For years it was led by Robert Skolrood, who argued Westside Community Schools v. Mergens before the Supreme Court, which upheld the Equal Access Act for religious student groups. Steven Fitschen is now the group’s only attorney, although it remains active primarily in filing amicus briefs.
Pacific Justice Institute – PJI was founded in 1997 by Brad Dacus, who currently serves as its president. With annual revenue nearing $2 million, the group is the only CCLO based in California, and most of its legal work is focused there. PJI is perhaps most famous for its defense of the phrase “In God We Trust” in federal court. The group is particularly active in migrant communities in California, touting the similarities of their beliefs to the views of recent immigrants.
Thomas More Law Center – Founded in 1998 by Catholic businessman Tom Monaghan, TMLC is based in Michigan and led by Richard Thompson, who successfully prosecuted Dr. Jack Kevorkian in the 1990s. With $2 million in annual revenue, TMLC is staffed by three attorneys and numerous affiliated lawyers, and is one of the few CCLOs with explicitly Catholic foundations.
Thomas More Society – In the midst of defending pro-life activist Joseph Scheidler in a lengthy court battle, Thomas Brejcha was told to cease his pro bono work. Instead, he left his firm and founded TMS. In the years since its 1997 founding, TMS has expanded its agenda beyond the sanctity of life to include other issues prominent in Christian Right circles.
Noticeably absent from this list is the Becket Fund for Religious Liberty, which has made a name for itself by winning a number of recent Supreme Court cases, including Hosanna-Tabor v. EEOC, Burwell v. Hobby Lobby, and Holt v. Hobbs. This omission is intentional: just as the Christian Right is concerned with more than one issue, CCLOs should be defined by their attention to multiple issues and causes in their advocacy. Due to its focus solely on religious liberty and the fact it represents non-Christian clients, the Becket Fund does not belong to the community above, despite some overlap with CCLO interests.*
WHILE AGREEING ON MAJOR issues, CCLOs are not, it should be noted, copies of one another. These groups have carved out niche identities in an otherwise crowded field. The American Center for Law and Justice consistently critiques the Obama administration on issues beyond the traditional purview of Christian legal advocacy, like immigration, gun control, and the separation of powers. Liberty Counsel has made support for Israel and the Jewish people a central component of its agenda. The Pacific Justice Institute routinely opposes the normalization of homosexuality and transgender identity, especially in public schools. Alliance Defending Freedom has encouraged pastors to “break the law” by taking political stances from the pulpit, in order to challenge IRS regulations prohibiting such activity. And the Thomas More Law Center is active in opposing the advancement of Islam in the United States. Despite an overarching agenda, there is diversity within the ranks of the Christian legal movement.
Christian legal organizations of all kinds have undeniably proliferated over the past three decades, building their fundraising capabilities and gaining important court victories. But now, there is evidence that the groups’ primary constituencies—conservative Christians—are becoming less wedded to the culture war battles that gave CCLOs their initial footing. What, then, will be the future of the Christian legal movement?
Most CCLO attorneys I speak with express optimism about the future of their organizations. This optimism is laced with disappointment, though, as future opportunities depend on legal challenges. Much of the future of this movement is linked to the Supreme Court’s forthcoming decision in Obergefell v. Hodges. If the Court determines there to be a right to same-sex marriage, CCLOs will shift their attention to carving out exemptions for individuals and businesses (such as florists and photographers) morally opposed to participating in same-sex weddings. Some legal observers also believe sexual orientation will soon be considered a protected class, along with race, gender, and other categories. Should this happen, CCLOs will move to shield religious institutions—including churches and universities—from new anti-discrimination laws. In framing these battles in broad terms, CCLOs will paint their advocacy as less about disagreement with homosexuality and more about protecting constitutional freedoms for everyone—which is essentially how they portray their efforts now.
Regardless of the Obergefell decision, the Christian legal movement is too well funded and organized to simply disappear. Armed with million-dollar budgets and attorneys committed to a broader cause, CCLOs are not built to fade away. Some of its groups may dissolve over time, but the broader Christian legal movement is poised for a sustained presence on the stage of legal and cultural conflict.
Daniel Bennett is assistant professor of political science at Eastern Kentucky University. His book on the Christian legal movement in the United States is under contract with the University Press of Kansas.
*This sentence has been updated to clarify that the Becket Fund does not just represent Christian interests.
Writers tell us stories about where they discovered religion and politics in their states.
An Atheist Finds (Some) Reasons to Believe in Her Old Church.
A setting to debate the issues of the day.