In movies and television shows, it’s common for a person with a legal grievance to vow that they’ll take their case all the way to the Supreme Court.
In real life, it’s not that simple. The high court accepts less than 2% of the cases it is asked to hear. Plaintiffs face significant hurdles, not the least of which is proving “standing” – that is, the right to sue.
The Supreme Court has been curtailing standing in many contexts. That’s why it’s so frustrating to see the court accepting cases from Christian Nationalist legal groups that appear to have been manufactured to raise certain controversial issues, not provide justice.
Manufactured legal cases
The Washington Post reported recently that Alliance Defending Freedom (ADF), a large Christian Nationalist legal group and Shadow Network member, appears to be engineering cases to get them before the Supreme Court.
The newspaper examined court filings and found that in one court petition filed by ADF, the group cited a photographer, a videographer and an artist who claimed they were ordered to work with same-sex couples. But the newspaper found two of the three vendors “had stopped working on weddings, and the other did not photograph any weddings for two years. Three additional vendors represented by ADF in similar lawsuits elsewhere also abandoned or sharply cut back their work on weddings after they sued local authorities for the right to reject same-sex couples, The Post found.”
The Post added, “ADF also had a hand in formally establishing companies for some of its clients, The Post found. Lawyers associated with the legal group signed incorporation paperwork and helped to draft company policies that were later used as a basis for the wedding lawsuits. ADF promoted some of its lawsuits with videos and images of plaintiffs photographing women in bridal gowns at what The Post found were staged events featuring ADF employees.”
The case of the website designer
Consider an ADF case from last term, 303 Creative v. Elenis. The plaintiff, a website designer, hadn’t created a single wedding website for any couple, whether of the opposite sex or of the same sex. But she speculated that she might want to someday and if so, she wouldn’t want to serve same-sex couples. Relying on this completely theoretical possibility, ADF got her case before the highest court in the land, which ruled in her favor. (Separate reporting by The New Republic even calls into question how truthful ADF and its client were in describing whether she had created wedding websites in the past or received a request for service from a same-sex couple.)
In a recent article about ADF in The Nation, AU President and CEO Rachel Laser pointed out that when AU “litigates cases, we have serious heartburn around the standing phase. We’re held to incredibly high standards every time. The same rules don’t apply to the Shadow Network, because they have cronies – and I mean real cronies – right there on the bench.”
When it comes to litigation, all Americans United asks for is an even playing field. Right now, it looks like the Supreme Court is tilting it to favor Christian Nationalists.