A new investigation by The Washington Post sheds damning light on the tactics of Alliance Defending Freedom, the powerhouse Christian right legal firm behind Supreme Court rulings that state anti-discrimination laws violate the constitutional rights of anti-LGBTQ Christian wedding vendors. The upshot of the Post’s deep dive into ADF’s dubious methods is that some of its clients, whom ADF has presented in court filings as pious wedding vendors, may have barely been vendors at all. The findings add fresh details to questions about the central claims of some of the firm’s clients — and serve to highlight how Donald Trump-appointed judges are eager to decide cases in their favor without interrogating the underlying facts.
Under the anti-discrimination laws the ADF has challenged, in effect in more than 20 states and hundreds of localities, business proprietors cannot turn away customers on the basis of their sexual orientation or gender identity. ADF developed a legal theory that if a Christian proprietor had a religious objection to same-sex marriage, then enforcing the law against them for refusing to serve a same-sex wedding would be a violation of their free exercise of religion and free speech rights. ADF made inroads with the high court in 2018, when it won Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court ruled in favor of Jack Phillips, a baker who had refused to make a cake for a gay couple’s celebration.
These findings raise grave legal ethics concerns.
This year, in 303 Creative LLC v. Elenis, the court’s expanded right-wing majority ruled for ADF client Lorie Smith, the owner of a graphic design firm. The court protected Smith and her company despite her lawyers presenting no evidence that she had ever even designed a website for any wedding. As Supreme Court Justice Neil Gorsuch acknowledged in his majority opinion, “While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans.” But like other ADF clients, Smith claimed that, as a Christian, the mere prospect of being “forced” to design a wedding website for a same-sex couple infringed on her right to free expression.
The court’s acceptance of Smith’s claim, granting of prospective relief despite no real evidence of harm, stunned legal experts, including the court’s liberals. “The breadth of petitioners’ pre-enforcement challenge is astounding,” Justice Sonia Sotomayor wrote in her dissent. (Contrast the Supreme Court’s approach in this case with its treatment of other peoples’ worries that, say, they could be jailed for having an abortion.)
Gorsuch’s admission only hinted at the shaky foundations of Smith’s case. The New Yorker reported this week that Smith said her pastor “had directed her to speak with A.D.F. before she even entered the business of making Web sites for weddings.” ADF, which the magazine likened to a “culture-war personal-injury firm,” distributes a legal guide warning that the “practical effect” of anti-discrimination laws “is to legally compel Christians to accept, endorse, and even promote messages, ideas, and events that violate their faith.”
Thanks to the Post’s reporting, we now know that ADF’s tactics go far beyond soliciting clients through such missives to pastors. The Post found multiple instances where ADF’s website published promotional materials of its plaintiffs taking wedding photos, which were actually photos of ADF’s employees, seemingly in costume. These findings raise grave legal ethics concerns, and even more troubling questions about whether a high court mired in its own ethics debacles would even care.
Another ADF case, involving dubious claims about harm to a wedding photographer, highlights just how much lower Trump judges also have embraced and enabled ADF’s tactics. In 2020, Justin Walker, whom Trump had nominated in 2019 to be a federal trial judge in Kentucky, ruled in favor of Chelsey Nelson, a Louisville photographer who claimed the city’s anti-discrimination ordinance infringed on her religious beliefs. Nelson’s case was of such great interest to the Christian right that the Trump administration’s Justice Department filed a supportive statement with the trial court.
It remains to be seen whether the Supreme Court will ever address any of these problematic litigation tactics.
As I reported in 2020, Nelson made no claim that any prospective same-sex clients had inquired about her services, or that the Louisville Metro Human Relations Commission had ever initiated any probe into her or her company. The commission’s employees had never even heard of her before her lawsuit. Nonetheless, Walker, a protégé of Senate Minority Leader Mitch McConnell, R-Ky., preemptively ordered the commission to refrain from investigating Nelson.
Now the Post’s investigation suggests that Nelson never truly ran a wedding photography business in Louisville at all — but that Trump-appointed judges accepted her claims nonetheless. The Post reported that a lawyer allied with ADF’s national lawyer network filed incorporation papers for Nelson’s company just one month before her lawsuit. After serving just five months as a trial judge, Walker was rewarded with a seat on the prestigious U.S. Court of Appeals for the District of Columbia Circuit. The case was assigned to another Trump-appointed judge, who issued a permanent injunction in her favor.
The city’s attorneys appealed the ruling to the U.S. Court of Appeals for the 6th Circuit. On appeal, a lawyer for Louisville pointed out that Nelson had not photographed any wedding in nearly two years, and in any case has moved to Florida, out of the city’s jurisdiction. ADF told the appeals court that Nelson has photographed two weddings, neither in Louisville, hundreds of miles from where she lives — but the Post uncovered that these weddings were of a family member and a church friend, suggesting she is not open for business to the public in any event.
It remains to be seen whether the Supreme Court will ever address any of these problematic litigation tactics. Tragically, its right-wing majority is more than ideologically sympathetic to ADF. Justice Amy Coney Barrett, for example, has lectured at ADF’s training academy for Christian law students, but downplayed her connection to the group during her 2017 Senate confirmation hearings to the 7th U.S. Circuit Court of Appeals. Owing to ADF’s efforts, it is now an article of faith both on the Christian right and on the high court that a secular government will “force” Christians to do things against their will in order to advance the interests of LGBTQ people. This is a long-standing but mythical tenet of Christian nationalists who revile a pluralistic secular government and want to supplant it with one run by like-minded Christians. We are just beginning to see how much this myth will justify when Christian nationalists seize both political and judicial power.
