Nadav Spiegelman

Alliance Defending Freedom’s Crusade Against Trans Rights

https://www.newyorker.com/magazine/2023/10/09/alliance-defending-freedoms-legal-crusade
Author
David D. Kirkpatrick
My last highlight
2023-10-03
Number of highlights
20

My Highlights

As though to reassure the staff that A.D.F. wasn’t abandoning its roots, Bauslaugh kept inserting Biblical references into his explanation. “Why do we exist as an organization?” he asked. “A.D.F. exists to advance our God-given rights to live and speak the truth.” He paused to let that sink in before adding, “The truth—the Gospel.”
D.F. has filed a suit in Alaska to protect the right of a shelter for battered women to turn away transgender clients.
Thanks to the rightward shift of the courts under Trump, A.D.F. lawyers now often find a sympathetic audience on the federal bench. Filing the mifepristone case in Amarillo enabled A.D.F. to argue before Judge Matthew Kacsmaryk, a Trump appointee who had previously worked as the deputy general counsel of First Liberty Institute—a conservative Christian advocacy organization that has received grants from A.D.F. The summer before, Kacsmaryk’s chambers had chosen an intern from an A.D.F. program for law students; an alumnus of the program is clerking for him this fall. (Other alumni clerked last term for Justice Samuel Alito and Justice Amy Coney Barrett.)
In fact, he explained, A.D.F. was quietly revising its mission altogether, to reflect both the changing times and the group’s growing ambitions. Until now, A.D.F. had cast itself as primarily defensive. In the words of one of its founders, its purpose was “to keep the door open for the Gospel”: to prevent the American Civil Liberties Union and the courts from interfering with Christian ministry, to stop them from removing abortion from the jurisdiction of legislatures, and to keep religion in public life. But A.D.F. leaders often said that the Bible wasn’t just for the faithful; it was a universal guide to “human flourishing.” Accordingly, Bauslaugh told the fund-raisers, A.D.F. was taking on less explicitly religious concerns, perhaps including “corruption in the bureaucratic state.”
Bauslaugh framed the case yet more broadly, beyond abortion or even Christianity. Calling it “a massive pushback on the F.D.A. and the Biden Administration from a regulatory standpoint,” he noted that there was “a ton of corruption in the bureaucratic state.”
Waggoner told me that an A.D.F. goal is to persuade the Supreme Court to establish “parental rights” as a constitutional principle: “It’s not that the Court is going to say, ‘Gender ideology is bad.’ But I do think the Court could say, ‘Parental rights are fundamental rights.’ ”
At school-board meetings, some parents objected that the curriculum’s discussions of “white privilege” and a “dominant culture” taught racial stereotypes or stigmatized white people. One such parent, Carlos Ibañez, an oral surgeon who’d emigrated from Panama, alerted A.D.F., and became the lead plaintiff in a lawsuit charging that the district had violated civil-rights laws by treating students differently on the basis of race.
psychotherapist’s right to counsel children and adolescents about how to overcome same-sex attraction—a
D.F. is currently asking the Supreme Court to hear its defense of a Christian
(In an internal briefing, the head of its legislative effort said that A.D.F. had “authored” at least a hundred and thirty bills in thirty-four states last year; more than thirty were passed into law. In 2018, the organization’s lawyers drafted a Mississippi law banning most abortions after fifteen weeks of pregnancy; last year, A.D.F. successfully defended that law in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe.)
Others accuse A.D.F. of inventing grievances to blow up into causes. Smith, of 303 Creative, told me that her pastor had directed her to speak with A.D.F. before she even entered the business of making Web sites for weddings. And A.D.F. routinely sends out bulletins urging churches and ministries to be on the lookout for “SOGIs”—prohibitions of discrimination on the basis of sexual orientation and gender identity. An A.D.F. legal guide warns churches that such prohibitions “are not designed for the innocent purpose of ensuring all people receive basic services”; rather, “their practical effect is to legally compel Christians to accept, endorse, and even promote messages, ideas, and events that violate their faith.” A.D.F. sometimes resembles a culture-war personal-injury firm; it even solicits clients with a catchy toll-free number, 1-800-TELL-ADF.
He told donors that A.D.F. would follow the litigation strategy of the Black civil-rights movement. Where Thurgood Marshall and the N.A.A.C.P. had set out to overturn the precedents underpinning racial segregation, A.D.F. aimed to undo Roe v. Wade and Lemon v. Kurtzman, the 1971 precedent barring “excessive entanglement” of government with religion. Like the N.A.A.C.P., A.D.F. would find sympathetic and strategically placed plaintiffs, then seek conflicting rulings from different circuits in order to push the Supreme Court to take up a question. Along the way, A.D.F. would try to erode precedents that it opposed—for example, by supporting parental-notification requirements for minors seeking abortions.
Sears made fighting gay rights A.D.F.’s third priority, alongside opposing abortion rights and church-state separation. Its lawyers contested the recognition of same-sex marriage in state after state. A.D.F. defended the military’s so-called Don’t Ask, Don’t Tell rule, opposed school speech codes aimed at protecting gay people, helped defend a state-funded Baptist youth center in Kentucky that fired a lesbian therapist, and represented chaplains at a Minnesota women’s prison who condemned lesbianism.
Recently, A.D.F. opened a new front in its “parental-rights” fight: a lawsuit over teaching about racism. The school district that includes Charlottesville, Virginia, began devising an anti-racist curriculum after white supremacists gathered there in 2017 for the Unite the Right rally. Two years ago, a middle-school pilot program was launched with a slide presentation that quoted the author and activist Ibram X. Kendi: “Children are either going to learn racist or antiracist ideas. In other words, if we don’t actively protect them from this dangerous racist society, what do you think they will be taught?”
If Sears were writing “The Homosexual Agenda” now, he told me, he’d have to make some updates. But he stood by the book’s portrait of a plot, hatched by gay-rights activists, to use Hollywood, schools, and the courts to transform American culture. He had sent a lawyer to attend a major L.G.B.T.-activist conference in London, and he had studied gay-rights manifestos like “After the Ball: How America Will Conquer Its Fear and Hatred of Gays in the 90’s,” by Marshall Kirk and Hunter Madsen. Sears said that such activists “told us what they wanted to do—they said, ‘Let’s adopt the strategy of the civil-rights movement, let’s call ourselves a minority, let’s call ourselves oppressed, blah blah blah blah.’ ” In hindsight, he said, his book still “stands pretty well,” especially the claim of its subtitle—that L.G.B.T. rights are “the principal threat to religious freedom today.”
judge in Texas ordered lawyers for Southwest Airlines to receive A.D.F. training as part of the settlement of a suit by a flight attendant who claimed she’d been fired for her opposition to abortion. (Southwest is appealing.)
Waggoner is what psychologists call an active listener. She gives empathetic nods and smiles even when she disagrees vehemently with what she is hearing. As I laid out a liberal critique of her cases, she kept smiling while calling what I’d just said “absolute garbage.” Lawyers who have faced her in the courtroom say that the corners of her lips seemingly never turn down. Keith Kemper, her former partner in a Seattle law firm, told me that, “because she has a sweet disposition and a small stature, it is easy to say, ‘Oh, here is this nice little girl.’ But she is the sweetest killer you ever met.” A former adversary likened Waggoner’s countenance to that of Dolores Umbridge, the cheerfully authoritarian bureaucrat in the “Harry Potter” series.
Waggoner’s critics say that she ignores history. Conservative Christians may be a minority now, but civil-rights laws don’t protect Black or L.G.B.T. people simply because they’re outnumbered. Sarah Warbelow, of the Human Rights Campaign, told me, “ ‘Minorities’ is the wrong word. The argument is for protections for vulnerable people—individuals and classes of people who have historically, and ongoingly, experienced discrimination in the public sphere, in public accommodation, housing, employment, credit, and education. The vast majority of Christians are not being discriminated against in these areas of life. A baker is not refusing to make a baptismal or First Communion cake for their child.”
Waggoner referred me repeatedly to a dissent by Justice Alito in Obergefell v. Hodges, the 2015 case that found a constitutional right to same-sex marriage. A.D.F. bulletins often quote Alito’s words, which she deems prophetic. “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes,” Alito warned. “But if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
In 2021, A.D.F. sued the Biden Administration for requiring that federally funded adoption agencies work with same-sex couples. A.D.F. argued that the policy violated the religious freedom of its client, Holston United Methodist Home for Children, in Tennessee. The Administration quickly folded; the Supreme Court had tipped the scales for Holston by ruling that a similar policy in the city of Philadelphia had violated the religious freedom of Catholic Social Services. But the next year Holston leveraged the same religious-freedom argument to reject a couple because they were Jewish. Gabriel Rutan-Ram, the would-be father, told me that Holston’s decision was “blatant antisemitism.” With help from the liberal group Americans United for Separation of Church and State, he and his wife are now suing the Tennessee agency that partially funds Holston. (Waggoner told me that excluding Jews is “not something we would advocate for,” but argued that, under certain circumstances, a religious agency could have that right.)