Religious Bigotry is Hiding Behind Arguments for Free Speech
Joshua Wilson is an associate professor in the Department of Political Science at the University of Denver. He is the author of The New States of Abortion Politics and The Street Politics of Abortion: Speech, Violence, and America's Culture Wars. Wilson's areas of research includes law and society, social movements, abortion politics, American conservative politics, and American constitutional law and civil liberties.
Last Tuesday, the U.S. Supreme Court heard Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case concerning the ability of a conservative Christian Colorado baker to refuse to bake a cake for a same-sex wedding.
Religious opposition to gay marriage obviously lies at the case’s core, but that is not the way that the baker has presented things. In his words, “I'm just trying to preserve my right as an artist to decide which artistic endeavors I'm going to do and which ones I'm not.”
Seen in this way, he is fighting for the free speech rights of artists and the general public. His cause is only incidentally, at best, related to the Christian Right.
But to understand the real cause behind the case, it is significant that his case is being argued by the conservative Christian legal organization Alliance Defending Freedom.
The loose grouping of activists, politicians, and voters that are commonly referred to as the Christian Right arguably coalesced around the 1980 presidential election.
The Christian Right’s early years were marked by political naiveté and failures, but over the course of the 1980s and 90s they came to learn how to become effective within electoral politics under the leadership of groups such as the Christian Coalition and the Family Research Council.
It was only in the late-1990s and early 2000s, though, that the Christian Right came to understand the importance of dedicating similar attention to pressing their argument through the nation’s courts.
The Christian Right’s legal movement was uneven at its start, but two features mark its political maturation.
The first is the commitment of resources to build legal organizations dedicated to pursuing the Christian Right’s policy interests. The second is embracing pragmatism over purity in deploying legal arguments. No group better embodies these two features than Alliance Defending Freedom.
Created by a group of leaders within the Christian Right in 1994 as the Alliance Defense Fund, ADF was originally intended to help fund, train, and coordinate what their website used to describe as “a battlefield in disarray with inadequate resources to win.”
In the early 2000s, ADF was renamed Alliance Defending Freedom.
In his 2017 book on Christian legal organizations Defending Faith, Daniel Bennett finds that ADF’s budget dwarfs that of other Christian Right legal groups, with recent revenue estimated at $50 million. Their website also list more than 40 staff attorneys and over 2,200 “allied attorneys” in North America.
With these resources, it is no wonder that ADF has made repeated, high-profile Supreme Court appearances in cases such as Town of Greece v. Galloway, McCullen v. Coakley, and now in Masterpiece Cakeshop. Under the direction of groups such as ADF, the Christian Right’s legal battlefield is clearly no longer in “disarray” or under-resourced.
The group recognizes the need to appeal not only to judges and its core supporters but to the larger public. ADF thus provides media training to its lawyers and litigants and is the most active Christian legal organization in terms of producing press releases.
The Christian Right’s legal movement first embraced this pragmatic approach in the 1990s when they turned away from making arguments about the special position of religion and started making claims that equated religious speech with other forms of speech that courts had protected. This change in strategy was accompanied by increasing success in the courtroom.
Last week’s Masterpiece Cakeshop claims that the baker’s cake-making is a form of protected expression.
The Christian Right recognizes that they have lost the gay marriage issue in court, and more importantly, in public opinion. They have not, however, lost their dedication to their underlying cause.
Learning from decades of trial and error, they have pivoted and embraced the language of rights that enables them, in the words of Daniel Bennett, “to portray their advocacy as less about infringing upon the rights of gay…Americans and more about defending the First Amendment.”
As one ADF attorney stated in Bennett’s book, “I think we’re starting to see people respond,” to this approach. Before long we will discover whether the Court has also responded.