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The Crusaders distort the meaning of religious freedom to impose their concepts of religion and morality on the rest of us. They are reshaping the federal judiciary to do so. Who are they?
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Understanding the Crusade
We’ve seen in the last three issues of the newsletter (Religious Freedom, Weaponizing Religious Freedom, and The Crumbling Wall of Separation Between Church & State) how the Supreme Court has been whittling away at both freedom of religion and freedom from religion, which we’ve long enjoyed in this country, allowing religious conservatives to impose their beliefs on the rest of us. In this issue, we’ll take up that story again, trying to understand why this is happening and who is behind it.
Today’s Court Favors Religion
In past newsletters we’ve looked at a few examples of recent Supreme Court rulings that undermine religious freedom. Are these few cases a trend? Yes.
Epstein and Posner’s statistical analysis1 of the outcomes of religion cases before the Supreme Court since the 1950s shows that the Roberts Court rules in favor of religion in a far higher percentage of cases than did predecessor courts:
Note that the data in this chart ends with the 2020 term. If we were to add in the 2021-2022 terms, the result would be even more pronounced.
Why is Religion Being Favored?
The short answer is that the Crusaders have changed the game in two important ways:
Six of today’s Supreme Court justices are right-wing Christians who apply theories of constitutional originalism to undo longstanding Supreme Court decisions that have heretofore kept other people’s religious beliefs out of our personal lives and out of government. The Court’s current makeup is no accident.
The cases brought before the Court that are being used to overturn our freedoms are also no accident. Rather, they are carefully chosen, backed by extensive media efforts to frame them sympathetically and supported by well-funded, highly-competent organizations.
Our task now is to understand these two changes.
Today’s Reactionary Supreme Court
Definition of “reactionary”:
“An extremely conservative person or position that not only resists change but seeks to return to the ‘good old days’ of an earlier social order.
— The New Dictionary of Cultural Literacy (p. 324)
Today’s Supreme Court is reactionary. Just look at some of the justices’ writings:
Justice Gorsuch wrote regarding the Establishment Clause in Kennedy v. Bremerton (see previous newsletter): “[T]he line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.”2
Similarly, in the Bladensburg Peace Cross case (see previous newsletter) Justice Kavanaugh wrote: “[I]f the challenged government practice is not coercive and if it (i) is rooted in history and tradition … then there is ordinarily no Establishment Clause violation.”
Likewise, Justice Alito wrote in the Bladensburg case, referring to the Lemon test, that “in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance.”
The reactionary justices, which include Alito, Barrett, Gorsuch, Kavanaugh, Roberts, and Thomas, are all adherents of originalism, a theory promoted by Justice Antonin Scalia. In an interview with NPR’s Nina Totenberg, Scalia himself described it succinctly:
“The Constitution that I interpret and apply is not living, but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
Back to the good old days.
The religious composition of the current Court is wildly out of kilter with America3:
I am not saying that being Catholic implies that you’re reactionary (indeed, Justice Sotomayor is both Catholic and liberal) nor that being Protestant or Jewish implies that you’re not reactionary (indeed, Justice Gorsuch is both Protestant and reactionary).
What I am saying is that it is hard to imagine that the Court’s out-of-kilter composition is by chance. How could this have come to be?
Leonard Leo and the Federalist Society
Here’s how the Federalist Society describes itself on its own web site:
Founded in 1982, the Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians dedicated to reforming the current legal order. We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks to promote awareness of these principles and to further their application through its activities.
Since its founding forty years ago, the Federalist Society has developed an extensive, national network of chapters for law students, law faculty, and practicing lawyers. The Society claims 10,000 law students and 65,000 lawyers among its membership. It is well respected as a conservative legal think tank that debates legal principles and seeks to instill conservative values in law students and the judiciary.
Politico Magazine said that “it has become one of the most influential legal organizations in history—not only shaping law students’ thinking but changing American society itself by deliberately, diligently shifting the country’s judiciary to the right.” The six reactionary justices have all been members of the Federalist Society at one time or another.
On paper, Leonard Leo is co-chairman of the Federalist Society, which is run as a 501(c)(3) non-profit. Behind the scenes, he is more. Much more.
Robert O’Harrow, Jr. and Shawn Boburg of The Washington Post told a long version of the Leo story in 2019. This year, Katherine Stewart, a journalist who specializes in separation of church and state and religious nationalism, provided a more up-to-date version of the story. Both are worth reading, but if you only have time for one of them, I recommend Stewart’s article. My description is guided by and draws from these two sources
Leonard Leo is a Catholic ultra-conservative who believes that the best chance to rescue our civilization from liberal culture is to take over the courts. As quoted by Stewart, Leo’s former media relations director Tom Carter put it this way:
“Abortion, gay rights, contraception—conservatives didn’t have a chance if public opinion prevailed. So they needed to stack the courts.”
Leo also understood early that while many people believe that the court system operates above the partisan political fray, in real life an alliance between big money and right-wing religion could transform the courts. He’s been working toward this since the early 1990s. The Dobbs case, which threw out Roe v. Wade and the right to abortion, is a culmination of that work. And, he is not resting on his laurels.
Shaping the Judiciary at the Top
Leo led the campaigns to get Justices Roberts and Alito appointed and confirmed in 2005 and 2006. Since a 501(c)(3) cannot endorse candidates, he temporarily stepped away from his role at the Federalist Society and used a complicated network of social welfare organizations (see Dark Money in Turning Money Into Power) to funnel difficult-to-trace dark money to support the efforts.
Leo also served on the boards of the nonprofit Catholic Association and Catholic Association Foundation, funding campaigns to rally Catholic voters to stop states from recognizing same-sex marriage.
He excels at establishing networks of organizations to funnel dark money to help reshape the judiciary. Between 2014 and 2017, Leo helped raise more than $250 million for that purpose, including from wealthy conservative donor Rebekah Mercer.
By the time that Antonin Scalia died in February 2016, Donald Trump was already a strong contender to be the Republican presidential nominee. In March 2016, Leo briefed Trump on his goals for the judiciary and felt that Trump was receptive. Later, Leo gave Trump a list of potential nominees “approved” by the Federalist Society. Trump released the list to boost his credibility with mainstream Republicans.
At the same time, Leo used his relationship with the independent nonprofit Judicial Confirmation Network4 (JCN) to fund media campaigns to discourage Republican Senators from considering Merrick Garland’s nomination. JCN and the Federalist Society had offices on the same hallway of a Washington building but the relationship between the two organizations and Leo's role in JCN is unclear.
As the 2016 election campaign swung into full gear, Leo created three additional social welfare nonprofits called BH Fund, Freedom and Opportunity Fund, and America Engaged. These organizations had no employees or even web sites, but they raised $33 million, $24.25 million of which came from a single undisclosed donor to BH Fund.
In 2017, some of this money was passed to other organizations, including JCN, for them to use to support the Gorsuch nomination. Other Leo funds distributed $4 million to Independent Women’s Voice, which used it for appearances on Fox News and elsewhere to promote the Gorsuch and Kavanaugh nominations.
Shaping the Entire Judiciary
Among the 860 Article III judges5 in the federal judiciary, only 9 are Supreme Court justices, leaving the vast majority of cases to be decided by the lower courts. Appointing those judges is also a significant opportunity to shape the direction of the country.
In a speech in 2019, Senator Sheldon Whitehouse (D-RI) observed that 90% of Trump’s appellate judges are members of the Federalist Society, which he thought was “a little weird.” Whitehouse went on to quote Trump’s legal counsel, Don McGahn, speaking at a 2017 Federalist Society meeting:
“Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges. That is completely false. I’ve been a member of the Federalist Society since law school. Still am. So, frankly, it seems like it’s been in-sourced.”
I don’t have the space to go into the details, but you can read Senator Whitehouse’s speech. Suffice it to say that the pattern is familiar: Leo collects money from big donors (including the Koch brothers, the Lynde and Harry Bradley Foundation, the Mercers, and other right-wing donors), laundering them through various social welfare organizations, including JCN, thus allowing the donors to be hidden, then uses that money to groom young conservative lawyers and ultimately get them confirmed for positions in the federal judiciary. The main qualification is a willingness to do the bidding of the donors. Senator Whitehouse gives an example of a lawyer appointed to the DC court of appeals who has never been a judge, but is deeply connected with the Federalist Society.
Not Just Religious Freedom
It is important to understand that different participants in Leo’s takeover of the judicial system have different motivations.
Yes, some, including Leo himself, want to establish what they believe are Christian morals as the law of the land —no abortion, no birth control, suppression of LGBTQ people, government aid to Christian schools and Christianity more broadly, an expanded role of Christianity in civil affairs, and more.
Others, like the Koch brothers, want the courts to quash regulation of businesses, weaken labor protections, weaken efforts to fight climate change, and eliminate gun control.
They work together because they need the same thing: Supreme Court justices that are willing to rule based on history and tradition, even if the history they use is incorrect and the tradition they espouse doesn’t include our march toward ever more inclusive civil rights.
Bring on the Cases
If you’re trying to reshape the nation’s laws via the Supreme Court, it’s great to have justices who will be receptive to your arguments. Check. Got them.
You also need cases that can work their way through the court system, with sympathetic appellants and storylines consistent with the issues you want to raise and the framing you’re trying to establish.
And you need lots of money,
to pay lawyers to work the cases through the lower courts and into the Supreme Court;
to support an army of “think tanks” and other interested parties to flood the Court with amicus6 briefs to help frame the issue as you desire;
to fund advertising and appearances on TV and other media to get the pundits and public to demand the result you’re trying to establish;
to fund publicity efforts to get the “facts” (even if not true) established in the media so that the Court is receptive to your framing.
We’ll now take a look at a few of the major players in making this happen for the Christian nationalist agenda.
Alliance Defending Freedom
Alliance Defending Freedom (ADF) bills itself on its web site as “the world's largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God's design for marriage and family.” ADF was founded in 1994 with the support of prominent members of the Christian right like D. James Kennedy (Coral Ridge Ministries), James Dobson (Focus on the Family), and Bill Bright (Campus Crusade for Christ International). ADF gets funding from, as Stewart puts it, “financial heavyweights of the movement—among them the Edgar and Elsa Prince Foundation, the Bill and Berniece Grewcock Foundation, and the Richard and Helen DeVos Foundation. It also receives substantial funding from the National Christian Foundation, a ‘donor-advised fund’ that raised $2 billion in 2020, according to its financial reports.”
ADF is large and well-funded. Its audited financial report for the year ended June 30, 2022 shows total support and revenue of $101.7 million and total assets of almost $90 million. They have more than 12 times the (2020) $8 million annual revenue of Americans United for Separation of Church and State, the most prominent defender of Jefferson’s wall.
Many prominent Republicans, including Justice Amy Coney Barrett7, former VP Mike Pence, former attorneys general William Barr and Jeff Sessions, and Senator Josh Hawley have had associations with ADF.
ADF has been a leader in attacking LGBTQ rights, especially influential in the Trump administration, and has been classified by the Southern Poverty Law Center (SPLC) as a hate group8. Longtime ADF leader Alan Sears co-authored The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today, a book whose title says it all.
ADF was a key player in the Hobby Lobby case we’ve discussed previously (it represented Conestoga) and the Masterpiece Cakeshop case about a bakery that refused to bake a cake for two men who were getting married. They are behind the 303 Creative case now before the Court, in which the owner of a web site design business claims that complying with state anti-discrimination laws would violate religious freedom.
Should you want to understand further the scope of ADF’s involvement, see Wikipedia’s list of cases with which they’ve been involved. Warning: it is long!
ADF is the big kahuna. But there are many other much smaller but nevertheless important organizations that have similar agendas and approaches. These include:
Liberty Counsel, founded and run by Mat Staver, former dean at the Liberty University School of Law and his wife Anita Staver. Liberty filed an amicus brief in Kennedy v. Bremerton School District. It is also classified as an anti-LGBTQ hate group by SPLC. They have also been active in using freedom of religion arguments to oppose COVID restrictions in places of worship and vaccination requirements in the military.
Becket9 Law, which describes itself as “a non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths,” has since 2012 served as counsel or amicus curiae on eight religious freedom cases before the Supreme Court, including Hobby Lobby and other important cases. According to SPLC, Becket is “at the center of a small group of Roman Catholic-dominated religious liberty activists funded by conservative Roman Catholics.”
So, after all of this, who are the Crusaders?
They are an amorphous alliance of Christian nationalist religious leaders — some Catholic and some Christian fundamentalist — who believe that their view of religion should be dominant and above the law, leaders of smaller religious movements, including Orthodox Judaism, who also seek exemption from civil law, all supported by extremely wealthy individuals and a conglomeration of well-funded dark money social welfare organizations that are pursuing the destruction of Jefferson’s wall of separation.
They are the six justices of the Supreme Court who employ Antonin Scalia’s Constitutional originalism to overturn civil rights gained by previous Supreme Court decisions.
They are organizations like the Federalist Society and their network of allies and funders who are remaking the federal judiciary in their own image, filling it with judges that believe in a limited role for government and an expanded role for religion in our country, regardless of what the electorate want.
They are people like Leonard Leo and the Koch brothers, who either have or can raise vast sums of money to build large, effective organizations to play the long game of creating the change that they want.
They are leading Republican politicians like Mike Pence, Donald Trump, Gregg Abbott, and Ron DeSantis who exploit anti-LGBTQ rhetoric to drum up their own political support and support for weaponizing religious freedom. They are leading “traditional” Republican politicians who don’t speak up when their colleagues behave so egregiously.
They are leading “traditional” Republican politicians like Mitch McConnell who hypocritically establish different rules for Republican nominees than for Democratic nominees10 to ensure that their candidates get confirmed.
They are wealthy individuals, again including the Koch brothers, and corporations that have allied themselves with the religious right as a means to the end of reducing government regulation of business.
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To see the text, click on the link for page proofs.
Unfortunately, the Court’s view of history is sometimes not consistent with the historical evidence. And sometimes the evidence of the founders’ intent simply no longer exists.
Indeed, the picture could be even more out of kilter: Justice Gorsuch was raised Catholic but is now Episcopalian; count him as Catholic and the distribution changes to 11% Protestant, 11% Jewish, and 78% Catholic.
Now renamed to a more innocent-sounding Judicial Crisis Network.
Article III of the Constitution established the federal judiciary. Judges authorized under that Article are known as Article III judges. There are also judges authorized under legislative authority, known as Article I judges.
The legal Latin term amicus curiae means “friend of the court”. These are people or organizations that offer the court relevant perspectives on the issue at hand. Amicus briefs are the documents that amicus curiae submit to the Court, which may or may not consider the briefs at its discretion. Occasionally, the Court will request briefs from certain amicus curiae.
She delivered lectures to ADF legal fellows each year from 2011 to 2016.
The firm is named after Saint Thomas Becket, who is the prototype of a martyr standing up to the government (King Henry II) in the name of religion.
McConnell refused to allow a vote on President Obama’s nomination of Merrick Garland to the Supreme Court because it was too close to an election, even though the election was nine months away, while allowing a confirmation vote on Amy Coney Barrett’s nomination only 35 days before the 2020 election.