March 2013 Church & State | Featured

Stanford Law School in California is a prestigious institution with a distinguished past. Founded in 1893, one of its first professors was a former president, Benjamin Harrison.

When the school opened new offices in 1975, another president, Gerald Ford, was on hand for the festivities. On its website, Stanford proudly calls itself “one of the nation’s top law schools.” U.S. News & World Report agrees and ranks the school number two in the nation, behind only Yale Law School.

It came as quite a surprise, then, when officials at Stanford announced recently that they would open a “Religious Liberty Clinic” thanks to a $1.6 million grant from the John Templeton Foundation that was funneled through the Becket Fund for Religious Liberty, a Washington, D.C.-based legal group that seeks to undermine church-state separation with arguments straight out of the Religious Right’s playbook.

The creation of such a clinic at one of the nation’s best law schools underscores the incredible growth, financial power and political influence of the Religious Right’s legal organizations. Thirty years ago, fundamentalist Protestant and ultra-conservative Catholic political forces were represented in court by small, ill-funded and mostly ineffective outfits that few took seriously. They certainly didn’t have the clout to graft themselves onto major law schools.

Today these outfits have multi-million-dollar budgets, hundreds of allied attorneys and remarkable clout in the halls of government. And they are pressing courts and elected officials to fund religious schools and other ministries, open public schools to coercive prayer and proselytizing, limit reproductive rights and gay rights and give organized religion special privileges generally.

Stanford officials have made it clear that the new clinic will push a conservative religious and political perspective.

“The 47 percent of the people who voted for Mitt Romney deserve a curriculum as well,” Lawrence C. Marshall, Stanford’s associate dean for clinical legal education, told The New York Times. “My mission has been to make clinical education as central to legal education as it is to medical education. Just as we are concerned about diversity in gender, race and ethnicity, we ought to be committed to ideological diversity.”

The clinic’s founding director, James A. Sonne, told The Times, “In framing our docket, we decided we would represent the believers. Our job is religious liberty rather than freedom from religion.”

Sonne is a former professor at Ave Maria School of Law, an ultra-conservative Catholic school in Florida founded by Domino’s Pizza magnate Thomas Monaghan.

A taste of things to come at Stanford may have been offered during a recent panel discussion at the clinic. The Times reported that Hannah C. Smith, Becket Fund senior counsel, asserted that church-state separation isn’t in the Constitution.

Smith, a former clerk for Supreme Court Justice Clarence Thomas, told attendees that Becket works to show “there are certain God-given rights that existed before the state. God gave people the yearning to discover him. Religious freedom means we have to protect the right to search for religious truth free from government intrusion.”

But Smith’s approach to religious freedom is quite different from the definition of attorneys who support church-state separation, and they worry about the burgeoning influence of the Becket Fund and its allies.

The Religious Right move toward legal power began in the 1990s. A turning point occurred when TV preacher Pat Robertson jettisoned a small legal group he had formed called the National Legal Foundation and announced the creation in 1990 of the American Center for Law and Justice (ACLJ).

Named deliberately to tweak the American Civil Liberties Union, the ACLJ was for many years the leading Religious Right legal group in the nation. Headed by Jay Sekulow, a Jewish lawyer who converted to evangelical Christianity after his private legal practice became mired in financial problems, the ACLJ collected millions from Robertson’s eager followers. Its aim was a frontal assault on the wall of separation between church and state.

The ACLJ operates in tandem with a separate organization Sekulow had founded called Christian Advocates Serving Evangelism. According to its most recent IRS filing, the operation takes in over $40 million annually.

Even Sekulow’s critics admit that he’s an effective advocate. He has argued several times before the U.S. Supreme Court and helped pioneer a key legal Religious Right strategy of arguing that the government’s failure to extend certain benefits to religion is, in fact, a form of discrimination.

But Sekulow isn’t the only conservative Christian who jumped into the legal arena. In Florida, a conservative Seventh-day Adventist attorney named Mathew Staver started a small group called Liberty Counsel in 1989. The organization percolated along on a modest budget for a number of years before being subsumed into TV preacher Jerry Falwell’s empire in Lynchburg, Va.

Staver, who later converted to the Southern Baptist faith, now runs Liberty Counsel from Jerry Falwell Jr.’s Liberty University, where he also serves as dean of Liberty’s fledgling law school. It’s unclear how much Liberty Counsel spends because, remarkably, Staver claims the organization is a church auxiliary and refuses to make the organization’s finances public as other nonprofits are required to do.

Conservative Roman Catholics also started legal groups in the 1990s. The Becket Fund was founded by Kevin J. “Seamus” Hasson, and the Thomas More Law Center was formed by Richard Thompson with money from pizza magnate Monaghan.

The Religious Right landscape really began to shift in 1993, however, when a coalition of TV and radio preachers announced the formation of the Alliance Defense Fund (ADF). Radio preacher Marlin Maddoux pulled together figures such as James Dobson of Focus on the Family, Donald Wildmon of the American Family Association, Campus Crusade’s Bill Bright and D. James Kennedy of Coral Ridge Ministries to fund the ADF.

This band of politically active fundamentalists and “Christian nation” advocates conceived the ADF as a funding pool. The outfit would collect money from the legions of Religious Right donors and parcel it out to other groups that were active in court.

The ADF, which recently changed its name to the Alliance Defending Freedom, did that for a few years but soon began hiring attorneys and taking on litigation directly. Based in Scottsdale, Ariz., it took in over $46 million last year and had a network of volunteer attorneys all over the nation.

The Religious Right has even created law schools to train sympathetic attorneys. The best known is the law school at Robertson’s Regent University, although a new law school at Liberty University may eventually prove a contender. For conservative Catho­lics, Ave Maria School of Law in Naples, Fla., is a popular choice. (Another school with a far-right orientation, Pressler School of Law at Lou­isiana College, is in the works.)

The influence of these law schools shouldn’t be underestimated. The current governor of Virginia, Robert F. McDonnell, is a graduate of Regent Law. During the presidency of George W. Bush, Regent had a pipeline to the White House and federal agencies, and many of its graduates ended up with influential government positions, especially in the U.S. Justice Department. (One of them, Monica Goodling, a 1999 graduate of Regent Law, ran into trouble  after she went to work at Justice and was accused of favoring job applicants who were “pro-God in public life” and engineering the firings of several U.S. attorneys.)

Although it doesn’t sponsor a law school, the ADF offers a special “Freedom Legal Academy” for attorneys and summer training for law students called the Blackstone Legal Fellowships.

Faculty for the Blackstone program includes discredited “Christian nation” advocate David Barton and two men – Gary DeMar and Andrew Sandlin – who are members of the extreme Christian Reconstructionist movement that seeks to replace American democracy with Old Testament “biblical law.”

The goal of the program, the ADF states bluntly on its website, is to “recover the robust Christendomic theolo­gy of the 3rd, 4th, and 5th centuries.”

The group boasts of a roster of more than 2,200 cooperating attorneys nationwide and ties to 300 “allied organizations.” The ADF claims it wins 80 percent of the cases it brings and cites 38 victories before the Supreme Court, although this includes lawsuits where the ADF’s involvement was limited to filings briefs or providing some funding. (Like the ACLJ, the group also does some work overseas and lists activity in 31 countries.)

In recent years, the ADF has aggressively urged pastors to openly violate  federal tax law by endorsing candidates from their supposedly non­partisan pulpits and even sponsors an annual day of law-breaking called “Pulpit Freedom Sunday.”

As Religious Right leaders built their legal machine, they became more sophisticated. The organizations that sprang up in the 1980s were famous for tilting at windmills, often taking on cases they had little chance of winning.

Robertson’s ACLJ learned from those mistakes. The group framed its arguments in the language of fairness and equal treatment and leaned away from claims its lawyers knew would go nowhere in the courts.

For example, the ACLJ and other Religious Right groups often argue in favor of religious symbols or Ten Com­­­mandments monuments on public prop­­erty. Asserting that the United States was founded to be a Christian na­tion and thus the symbols are appropriate would be a non-starter in court, so these Religious Right attorneys instead insist that the symbols are merely part of an “open forum” or have a secular purpose such as educating the public about the historic origins of law.

The same logic applies to other church-state disputes. Thus, Religious Right legal groups claim the purpose of prayers before public school events or government meetings isn’t so much to worship God as it is to “solemnize” the occasion.

But the most prominent weapon in the Religious Right legal arsenal is the constant use of the term “religious freedom.” This phrase has a unique definition to Religious Right attorneys – it’s the right to tell other people what to do.

Thus, the “religious freedom” of churches is somehow infringed if same-sex couples are given access to civil marriages. A conservative Christian student’s “religious freedom” is violated if his public school biology teacher instructs about evolution.

Most recently, Religious Right legal groups have employed this argument in a string of cases dealing with access to birth control. They are asserting that the “religious freedom” of business owners and corporations is violated if the government mandates contraceptive access through health insurance plans.

Ironically, some of these organizations can’t be bothered to stand up when real religious freedom is threatened and, in fact, take stands counter to that principle. The ACLJ spent much of 2010 attempting to block the construction of an Islamic center  in New York City, arguing it was too close to the site of the 9/11 attack.

The right of a religious group to build a house of worship on land it has purchased would seem to be a quintessential religious freedom is­sue, but the ACLJ chose instead to tap into a rich vein of Islamophobia among the far right.

Other Religious Right legal guns were mostly silent on the matter.

An anonymous ADF spokes­­person told Yahoo News blogger John Cook, “We’ve been asked by a few outlets. We’re not commenting.”

Some Religious Right legal eagles seem to believe that religious freedom is only for Christians.

On Sept. 11, 2010, Thomas More Law Center’s Thompson ran an incendiary column attacking Muslims and accusing them of seeking to “construct a victory mosque that towers over the ruins of the World Trade Center.” (In fact, the Islamic center would be several blocks away from the Trade Center site, and the group that wants to build it has no ties to the terrorists who masterminded 9/11.)

In public schools, Religious Right legal groups have argued that students have a “religious freedom” right to impose prayer and worship on other students at school-sponsored events. The effort has met with mixed success. The Supreme Court as recently as 2005 struck down so-called “student-initiated” prayers before football games, but some lower courts have bought into the Religious Right’s rationale and allowed students to recite prayers or engage in proselytizing during graduation ceremonies.

In other cases, Religious Right legal groups have argued that parents have a “religious freedom” right to send their children to private religious schools and that states are permitted to facilitate this through voucher plans. They’ve also raised religious freedom in defense of religious groups that want to take taxpayer money through “faith-based” initiatives yet limit hiring to fellow believers.

But perhaps the most alarming Religious Right attempt to redefine religious liberty comes in areas related to human sexuality. Religious Right legal groups have led the charge to roll back gay rights and block the spread of marriage equality in the states.

The marriage of a same-sex couple would seem to be no one’s business but their own. But to the Religious Right, such unions are a threat to Western civilization.

The ADF has been involved in a long-running case dealing with same-sex marriage in California. Voters narrowly approved a ban on same-sex unions in 2008, but the matter went to court. The Supreme Court will take up the issue this year, and the ADF and other Religious Right attorneys plan to be in the thick of the legal donnybrook.

When voters in Maryland, Maine and Washington approved same-sex marriage in 2012, ADF attorneys sent letters to state officials arguing that local court clerks have a “religious freedom” right to refuse to provide a government service to same-sex couples – a claim that has no foundation in the law.

Last year, the ADF took up the case of Julea Ward, a student at Eastern Michigan University. Ward, who was enrolled in a program to become a professional counselor, claimed her religious liberty rights were violated by a school policy that required her to abide by non-discrimination policies.

Ward said she would not counsel gays and lesbians. The school countered that its policies were based on standards promulgated by the American Counseling Association Code of Ethics and Standards of Practice and the American School Counselor Association Ethical Standards for School Counselors.

Cases like this are designed to help Rel­igious Right legal groups achieve their ultimate aim: preferential treatment for conservative religious interests.

If there’s one thing that binds these groups together, it’s their unrelenting hostility to the Jeffersonian church-state wall.

Alan Sears, a former Reagan-era anti-pornography crusader, serves as ADF president. In 2004, he told supporters, “One by one, more and more bricks that make up the artificial ‘wall of separation’ between church and state are being removed, and Christians are once again being allowed to exercise their constitutional right to equal access to public facilities and funding.”

Sekulow has frequently compared the church-state wall to the Berlin Wall. In the wake of one Supreme Court victory, Sekulow exhorted to his followers, “Yes, the so-called ‘wall of separation’ between church and state has begun to crumble.”

Staver has a special animus toward Americans United, an organization that he once said is “out to literally destroy America.” He has blasted AU and its supporters for “essentially saying that separation of church and state is required or part of the Constitution, which we know it’s not.”

The Becket Fund has often steered clear of language this incendiary, but that may be changing. Last year, writer Jon Ward of The Huffington Post reported that the group’s new president, William P. Mumma, was interested in taking the group in a more aggressive direction. Not long after that, the Becket Fund jumped head first into the “culture wars” by attacking access to birth control.

As these groups jockey for funding and exposure, some are branching out beyond church-state relations. Liberty Counsel filed one of the lawsuits against President Barack Obama’s health care reform, and the ACLJ’s Sekulow routinely pops off on issues such immigration, gun control and even the appointment of former U.S. Sen. Chuck Hagel to be Defense Secretary. (Sekulow also has deep political ties to the GOP. During the 2012 election, he served as an advisor to Republican candidate Mitt Romney. There were even rumors that had Romney won, Sekulow would have been tapped for a federal position.)

These Religious Right organizations also have a warm relationship with government officials in many states. The ADF, for example, recently lined up 18 state attorneys general to sign a legal brief asking the Supreme Court to hear an appeal of Galloway v. Town of Greece, an Americans United case that successfully challenged sectarian prayers before municipal meetings in New York.

Similarly, the Becket Fund was able to muster considerable conservative legal firepower in asking the Supreme Court to hear an appeal of another AU case – Doe v. School District of Elmbrook, a successful challenge to a Wisconsin public school district’s practice of holding graduation ceremonies in a fundamentalist church. Becket drafted Michael McConnell, a law professor at Stanford and a former federal appeals court judge, to help frame its argument.

AU’s Lynn said the rise of Religious Right legal power is alarming and it’s critically important to meet the challenge in the nation’s courts.

“The ‘religious freedom’ the Religious Right seeks is the freedom to run other people’s lives according to their narrow doctrines,” Lynn said. “This is the opposite of real freedom, and it’s why Americans United’s legal department looks for every opportunity to counter the Religious Right agenda.”