The Alliance Defending Freedom, the religious right legal giant pushing a conservative culture war agenda around the world, held a symposium on Monday afternoon at which its lawyers celebrated Supreme Court decisions weakening church-state separation and discussed cases coming before the court in October in which ADF and its allies are urging the court to rule that job discrimination on the basis of sexual orientation or gender identity is not prohibited by federal civil rights laws. The symposium was held in the Washington, D.C. office of Jones Day, one of the largest law firms in the U.S, right across the street from the grounds of the U.S. Capitol.
The first panel, moderated by New York Times Supreme Court correspondent Adam Liptak, discussed religious conservatives’ recent win in a case involving a huge cross-shaped World War I memorial on public land in Bladensburg, Maryland—and what the decision might mean for the religious right’s efforts to undermine church-state separation by further dismantling the Establishment Clause of the First Amendment. (People For the American Way’s affiliate PFAW Foundation had joined a friend-of-the-court brief arguing that the memorial was unconstitutional.)
The panel featured ADF Vice President of U.S. Litigation David Cortman and Jones Day Associate Kaytlin Roholt, who was part of the legal team that worked on the Bladensburg cross case and who served as special counsel to the Senate Judiciary Committee during the confirmation process for Supreme Court Justice Neil Gorsuch. A dissenting point of view was provided by Charles Rothfeld, a lawyer at the law firm of Mayor Brown who has argued 31 cases before the Supreme Court.
The court’s complicated ruling in the case—with seven separate opinions signed onto by varying groups of justices—allowed the cross to stand given that it had been in place for a century, but reaffirmed how messy First Amendment cases can get. The ruling and the opinions are examined in People For the American Way’s report on the court’s 2018-2019 term, which noted that the court’s decision weakened church-state separation without going as far as the religious right pushed them to. “The damage could have been far worse,” the report notes, “and in their separate opinions, the conservatives made clear their intention to eventually make it so.”
At the ADF symposium, Roholt said the ruling, in which seven justices voted to allow the cross to stay, was a sign of how far the court has moved on Establishment Clause cases. ADF’s Cortman agreed, reviewing the shift in language from court rulings in the 1940s and 1950s that talked about the importance of protecting a “high” and “impregnable” wall between church and state, to the Supreme Court back-tracking in the 1980s and 1990s, to the shifts we are seeing from the current court.
All the panelists agreed that the Supreme Court’s Establishment Clause jurisprudence—and the so-called “Lemon Test” created by the court in 1971—is in tatters. They also agreed that it’s a challenge for the court to come up with a single rule or test that will work for different kinds of Establishment Clause cases. Panelists said that the three-prong Lemon test, sometimes tinkered with and sometimes basically ignored in later cases, has left government officials and lower courts without clear guidance for determining when an action by the government violates the Establishment Clause. The Lemon test asks whether there is a secular purpose for a government action, whether the action has the primary effect of promoting or inhibiting religion, and whether it creates too much entanglement by government with religion.
Some religious right groups have urged the court to replace Lemon with a “coercion test” which would define coercion so narrowly that it would allow expansive government involvement with, promotion, and funding of religion unless an action actually compelled people by law into belief, observance or financial support for a particular religion. Loyola Law Professor Jessica Levinson has written that Justice Brett Kavanaugh’s opinion in the cross case embraced a form of coercion test.
Rothfeld, who filed a brief on behalf of legal historians and law professors supporting the cross challengers, argued that there is strong historical evidence that founders like James Madison and Thomas Jefferson were deeply suspicious of sectarian expression by government and government officials. He said that the “wishy-washy” and “confusing” outcome in the case was a kind of success, because it meant the conservative court didn’t yet embrace one of the more radical positions promoted by religious right groups. He warned that tests proposed by religious right legal groups to replace Lemon are ahistorical and could lead to an “alarmingly close” association between government and religion—and not just religion in general but particular religions.
Moderator Liptak asked the panelists whether, in the wake of the Bladensburg ruling, it would be constitutionally appropriate for a government today to erect a cross-shaped memorial, given the increasing religious diversity of people serving in the U.S. armed forces. Liptak said he spoke to members of the American Legion who were adamantly in favor of protecting the Bladensburg cross but did not think a similar memorial would be appropriate today. Roholt and Cortman argued that such a memorial would be constitutional.
During a Q&A portion of the session, a questioner asked whether ADF supports the position taken by Justice Clarence Thomas that the Establishment Clause doesn’t apply to the states—and that Alabama, for example, could declare evangelical Christianity its official religion. Cortman didn’t give a clear answer. He said Thomas is right to say that it was not, as written, meant to apply to the states. He added that while the Court might have been wrong to apply the Establishment Clause to the states under the incorporation doctrine, the court did so and therefore it applies. Pressed by Liptak about whether the court was right to incorporate, Cortman said that was more of a “philosophical question” rather than a legal question.
In truth, it is very much a legal question as long as Thomas is pressing his view in his concurring and dissenting opinions, as he did in the Bladensburg cross case. A recent conservative book about Thomas argues that Thomas has laid out a “road map” to return the U.S. to the “Framer’s Constitution,” and that President Trump’s judges are giving him the judicial “troops” to carry it out. According to author Myron Magnet, Thomas “has blazed a trail to liberty that future justices can follow. And he is patient in waiting for the Court to catch up.”
The panel also discussed Espinoza v Montana Department of Revenue, a case the Supreme Court will be considering this term. In that case, the legislature created a voucher-like tax-credit scholarship program that allowed businesses and individuals to get a tax credit for giving to nonprofit scholarship organizations. The state’s Department of Revenue, citing a provision in the state constitution banning “direct or indirect” public funding of religious schools, prohibited students from using scholarships to attend religious schools and then the program was eliminated altogether. The state Supreme Court sided with the state. But the U.S Supreme Court agreed to hear the case, which could threaten many state constitutional provisions barring public support for sectarian schools.
Right-wing groups are hoping that the court will use the Montana case to expand on its 2017 ruling in Trinity Lutheran, in which the court said the state of Missouri was wrong to deny a church the ability to apply for a state-funded program to help improve the safety of playgrounds. That ruling included a footnote saying it was restricted to the facts of that specific case, but right-wing advocates like the ADF’s Cortman hope the court will use this case to erase that limiting footnote. In June, an education writer at Forbes wrote that the case could “change the face of public education” and noted that a huge array of right-wing and religious conservative groups had been “urging SCOTUS to take this case and run with it.”
During Q&A, a questioner asked whether the lawyers on the panel consider marriage equality to be settled law. “It is until it’s not,” said the ADF’s Cortman. Rothfeld said he believes it is, and that he would be “shocked” if Roberts voted to reverse marriage equality.
But in fact anti-equality groups are eager for a conservative-dominated Supreme Court to reverse the marriage decision. At the time of the decision, ADF called it “a huge blow to democracy,” and the group’s website says it “remains committed to promoting the truth that marriage is the lifelong union of one man and one woman.” Cortman said courts are already pushing back against states that have gone “too far, too fast” and are punishing small business owners who run afoul of nondiscrimination laws by refusing to provide wedding-related services to same-sex couples.
A second panel at the symposium focused on cases concerning civil rights laws in the upcoming term. ADF and other religious right groups are urging the Supreme Court to rule that job discrimination on the basis of sexual orientation or gender identity is not prohibited by federal civil rights laws, specifically Title VII provisions that prohibit discrimination on the basis of sex.
The panel focused in particular on a case in which a funeral home cited its gender-specific dress code policy in refusing to accommodate an employee’s gender transition. The federal Equal Employment Opportunity Commission, which considers discrimination on the basis of gender identity to violate acivil rights prohibitions on sex discrimination, sued the funeral home on behalf of the employee, Aimee Stephens.
Religious right groups, joined by the Trump administration, are urging the Supreme Court to side with the employer. ADF’s Vice President of Appellate Advocacy John Bursch, who was on the panel, will argue the case for the funeral home owner. Brian Burgess, a partner at Goodwin Law, took the opposing view. When panel moderator Amy Howe, a journalist who covers the Supreme Court, noted that Bursch had been speaking carefully about the case, he said he would not be using any pronouns in his argument to avoid misgendering Stephens but also to avoid embracing the employee’s preferred pronouns because that would get into the merits of the case and whether sex is malleable or objectively fixed.
Two other cases that will be argued on the same day—October 8—raise similar questions about whether discrimination on the basis of sexual orientation violates laws against sex discrimination. Dozens of organizations have weighed in on both sides of these cases.
Freedom for All Americans reported that more than 2,000 organizations and individuals have filed friend of the court briefs in the three cases. People For the American Way Foundation joined the Lawyers’ Committee for Civil Rights Under Law and the Leadership Conference on Civil and Human Rights and other allies in filing an amicus brief in support of Stephens, who was fired from the funeral home. Earlier this month, Leadership Conference on Civil and Human Rights President Vanita Gupta and Lambda Legal Chief Strategy Officer and Legal Director Sharon McGowan took part in a SCOTUSblog symposium and explained why Title VII must cover sexual orientation and gender identity.