November 2022 Church & State Magazine

Dark Shadows: For More Than 40 Years, Christian Nationalist Groups Have Worked To Topple The Church-State Wall. Are They About To Succeed?

  Liz Hayes

In the fight to protect church-state separation, Americans Uni­ted repeatedly faces off against a near-interchangeable cast of antagonists that try to manipulate the courts, the federal government and state legislatures to advance their Christian nationalist agenda.

It’s no secret that these organizations and their political allies have a warped view of religious freedom: They are trying to reforge this foundational American principle into a sword that forces everyone to live by their beliefs, rather than maintaining it as a shield that protects freedom and equality for everyone. Most of these groups work to undermine church-state separation, LGBTQ equal­­ity, abortion access and reproductive rights, and secular public education.

What’s less well understood is how often these well-funded, politically connected organizations are maneuvering together behind the scenes. And not just to the detriment of the social issues mentioned above, but also to advance an array of conservative causes: Some of these groups are involved in refuting the 2020 presidential election results, busting unions, denying climate change, blocking gun safety measures and fighting against a livable minimum wage, to name just a few.

Together, these organizations, their leaders and their policymaker allies form a billion-dollar shadow network working both in the public eye and under the radar to upend our democracy and increase inequality in our society.

Kennedy v. Bremerton School District, Americans United’s case that was argued before the Supreme Court last term, offered a textbook example of the shadow network in action. Long before the court’s ultraconservative bloc adopted the “deceitful narrative” spun by Coach Joseph Ken­nedy’s attorneys and ruled the public school district was wrong to stop a coach from leading coercive public prayers with players on the 50-yard line after football games, this web of organizations was filing briefs and working with conservative media to craft an alternative narrative that ignored the religious freedom rights of students and families.

These coordinated groups used the case as a tool to advance their own agenda. For them, the case was never about an individual football coach’s prayers; it was about changing our laws and policies to reflect their religious beliefs and ultraconservative political goals.

Many of most the prominent legal groups that stake out Christian nationalist positions in the courts were involved in Kennedy’s case at some level, starting with First Liberty Institute, the organization that represents the coach.

In American Crusade: How the Supreme Court Is Weaponizing Religious Freedom, AU Vice President of Strategic Communications Andrew Seidel described First Liberty: “The Institute wants Christian supremacy. It fought to keep evolution out of public schools, and bible classes, Jesus portraits, and school-imposed prayer in public schools. Like other Crusaders, the Institute wraps this supremacy in religious freedom, which the average American understands as equality. To build the perception that it’s fighting for equality rather than sup­re­macy, the Institute seeks stories that it can blow out of proportion and bend into the Christian persecution narrative.”

Kennedy wasn’t the only case First Liberty argued before the Supreme Court last term. The organization joined the Institute for Justice, a libertarian, anti-public education group, as co-counsel in Carson v. Makin. In that case, the two groups successfully urged the court to force Maine taxpayers to pay for religious indoctrination at private religious schools (even though the two schools connected to the case have discriminatory policies and curriculum).

First Liberty also filed a friend-of-the-court brief in Shurtleff v. City of Boston, a case in which the Supreme Court ruled Boston had to fly a Christian flag from a city hall flagpole at the request of a New England group that runs a camp aimed at indoctrinating kids in Christian nationalist beliefs. Liberty Counsel, another shadow network legal group that filed a brief in Kennedy, represented Shurtleff. Americans United filed friend-of-the-court briefs on the opposite side in both Carson and Shurtleff, supporting Maine and Boston.

“In my 33 years of advocating for religious liberty, I have never seen a year like this at the U.S. Supreme Court,” Kelly Shackelford, First Liberty’s president, CEO and chief counsel, wrote in a June opinion column in Newsweek on the heels of the Kennedy decision.

Americans United agrees that it was a Supreme Court term for the record books, but for very different reasons. “[The Kennedy] decision represents the greatest loss of religious freedom in our country in generations,” AU President and CEO Rachel Laser said two days before Shackelford’s op-ed was published. “This court focused only on the demands of far-right Christian extremists, robbing everyone else of their religious freedom. It ignored the religious freedom of students and families.

“As the network of religious extremists and their political allies behind this case celebrate victory, we can expect them to try to expand this dangerous precedent – further undermining everyone’s right to live as ourselves and believe as we choose,” Laser continued.

Her words were prescient: “Ken­nedy” was literally the first word First Liberty wrote in the introduction of an August brief filed with a federal appeals court in a Florida football prayer case. The brief goes on to reference the Kennedy case more than a dozen times. First Liberty also is currently urging the Supreme Court to take up the nearly decade-old case of an Oregon bakery that refused to serve an LGBTQ couple in violation of anti-discrimination laws.

In Kennedy, First Liberty was supported by prominent legal groups including Alliance Defending Freedom (ADF), Becket Fund for Religious Liberty and the Thomas More Society, which all filed friend-of-the-court briefs in the case.

ADF is notorious for representing businesses like Masterpiece Cakeshop that refuse to serve LGBTQ customers. The group will be back at the Supreme Court in December to argue its latest such case, 303 Creative v. Elenis, on behalf of a wedding-services business that wants to misuse religious freedom to justify turning away hypothetical same-sex customers, in violation of Colorado’s anti-discrimination laws. ADF also has been prominent in the fight to deny the rights of transgender students in public schools.

Becket Fund filed a brief on behalf of the U.S. Conference of Catholic Bishops in Kennedy. Last year before the Supreme Court, the group represented the taxpayer-funded foster care agency that refuses to work with same-sex couples in Fulton v. Phila­del­phia. Becket also represented the craft store chain Hobby Lobby and nursing homes run by the Little Sisters of the Poor in their crusade to deny employees access to health insurance that includes birth control. And Becket is involved in several ongoing cases (some opposite AU) seeking to broaden the “ministerial exception” so religious employers can deny workers, even those with no religious duties, any civil rights protections.

And the Thomas More Society is another familiar opponent whose work has included opposing COVID-19 public health orders, marriage equality and abortion. Earlier this year, The Washington Post reported the Thomas More Society was drafting model anti-abortion legislation so states can replicate Texas’ abortion ban that encourages private citizens to sue, vigilante-style, anyone accused of aiding someone who seeks an abortion.

Although mostly known for its religion-related work, Thomas More Society has filed a handful of election-related lawsuits in battleground states in the wake of the 2020 presidential election. The group joins several shadow network members working to undermine democratic elections, either by propping up Donald Trump’s “big lie” that he didn’t lose the election, making baseless claims about widespread election fraud or supporting policies that make it more difficult for people to vote.

The most prominent of these anti-democratic activists is John Eastman, a Trump attorney and founding director of the Center for Constitutional Jurisprudence at the Claremont Institute (which filed a legal brief in support of Kennedy). Eastman is one of several people in Trump’s orbit being investigated for potentially conspiring to undermine the election; he allegedly drafted a plan to have then-Vice President Mike Pence refuse to certify the election results. Eastman also spoke at Trump’s Jan. 6, 2021, rally outside the White House before Trump supporters stormed the Capitol.

Michael Farris, then head of ADF, also was tied up in contesting the 2020 election results. The New York Times reported he offered a first draft of the lawsuit that several Republican state attorneys general filed in December 2020 as part of a last-ditch effort to overturn the election. Farris told The Times that his work on the lawsuit was a personal endeavor and not related to ADF’s mission.

These legal groups and many others like them form the Christian nationalist shadow network alongside conservative Christian advocacy groups like Family Research Council and American Family Association and the conservative policy arms of religious denominations like the Ethics and Religious Liberty Commission of the Southern Baptist Convention and the United States Conference of Catholic Bishops (all signed briefs in support of Kennedy).

These larger, more well-known groups are joined in the network by a slew of less familiar organizations with vaguely similar names and similarly vague mission statements espousing a fundamentalist Christian view of freedom, faith and family. As AU’s Laser said in a recent message to supporters, “Their names may be an Orwellian word salad, but they’re key cogs in this shady machine. Their tendrils stretch to every corner of American politics and law.”

Five new groups founded by alumni of the Trump administration that all filed briefs in support of Ken­nedy offer a great example of this word salad: Advancing American Freedom, America First Policy Institute, America First Legal Foundation, American Cornerstone Institute and Defense of Freedom In­stitute for Policy Studies. Former Trump officials associated with these groups include Pence, policy adviser Stephen Miller, Chief of Staff Mark Meadows, Housing and Urban Development Secretary Ben Carson, National Economic Coun­cil Director Larry Kudlow, Small Business Administrator Linda McMahon and two officials who served with Education Secretary Betsy DeVos (who joined their brief in Kennedy).

Several groups that filed briefs in Kennedy have been identified by the Council on American-Islamic Relations as part of an “Islamophobia Network” that funds anti-Muslim policies and propagates anti-Muslim rhetoric. They are the American Center for Law and Justice (ACLJ, founded by televangelist Pat Robertson and currently led by Trump attorney Jay Sekulow); the American Constitutional Rights Union (ACRU, also known as the American Civil Rights Union); the American Family Association; and Con­cerned Women for America.

Organizations that seemingly focus primarily on anti-abortion policies, like Priests for Life and Pro-Life Texas, nonetheless felt the need to weigh in on a school prayer case. So did Texas attorney Jonathan Mitchell, well known in the anti-abortion sphere as the architect of Texas’ bounty-style abortion law. He authored an amicus brief in Kennedy on behalf of the America First Legal Foundation. Mitchell also filed a Supreme Court brief on behalf of Texas Right to Life in the Dobbs v. Jackson abortion case, arguing Roe v. Wade was “lawless and unconstitutional” and that the court’s decisions that established marriage equality in Obergefell v. Hodges and the right of married couples to use birth control in Griswold v. Connecticut and decriminalized gay sex in Lawrence v. Texas were “equally dubious.”

All told, the annual budgets of these shadow network groups exceed $1 billion. Well-known conservative backers like the Kochs, Bradleys and DeVoses are among their funders. In addition to this war chest, they’ve got a cable news empire dedicated to spreading their message and courts packed with hand-picked judges. They’ve got more than a few high-profile political allies as well. In the Kennedy case alone, 57 Members of Congress, 61 state legislators and 27 state attorneys general, all Republicans, joined briefs supporting the coach.

In her message to supporters, Laser acknowledged that the shadow network is a substantial foe in AU’s fight for freedom without favor and equality without exception. But she noted Americans United isn’t new to this fight, and that AU and its supporters don’t plan to back down.

“Americans United has tangled with just about every religious extremist and Christian Nationalist group around,” Laser said. “Their goal is to destroy the separation of church and state and turn our understanding of religious freedom on its head. They seek to concentrate political power and legal privilege in conservative white Christians. The end point of white Christian Nationalism is the toppling of our democracy—nothing less than that.

“They are prepared to stop at nothing in their desperate grab for power. We must stop them. And you can help us fight back. We need all the help we can get.”

AU is profiling members of the shadow network each month. To learn more, sign up for AU’s emails at au.org.

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