By Daniel Bennett (John Brown University)
If history remembers the current term at the United States Supreme Court for anything, it may be for its decisions on the First Amendment, particularly free speech. For example, the justices will soon render crucial decisions on the constitutionality of mandatory union dues and prohibitions on politically-themed attire at polling places.
This term has also seen two First Amendment cases of particular interest to Christian conservatives, with Masterpiece Cakeshop v. EEOC and NIFLA v. Becerra. In addition to their implications for free speech—specifically, compelled speech—Masterpiece and NIFLA are noteworthy for their connections to two issues at the heart of Christian Right activism: religious liberty and abortion.
Representing parties in both of these cases is Alliance Defending Freedom, probably the most influential and successful Christian conservative legal organization (CCLO) in the country. As for influence, ADF’s revenue has steadily approached $50 million annually, leaving other prominent CCLOs—such as the American Center for Law and Justice, First Liberty, and Liberty Counsel—in its wake. As for success, ADF has argued at the Supreme Court several times in the last five years, posting a 3-0 record in Town of Greece v. Galloway, Reed v. Town of Gilbert, and Trinity Lutheran v. Comer.
Despite the controversial substance of ADF’s recent cases—Masterpiece involves a baker who refused to create a custom cake for a same-sex wedding ceremony, while NIFLA involves pro-life pregnancy centers refusing to promote abortion as an option for its clients—ADF’s argument in each case dodges the controversy by appealing to the First Amendment: government cannot compel speech in all but the strictest of circumstances, circumstances which do not exist in either case. Essentially, in protecting the religious and moral beliefs of its clients, ADF is turning to free speech.
In Masterpiece, ADF argued that a baker’s work amounts to artistic expression, and since the Constitution protects artistic expression as speech, the baker’s work must be protected under the First Amendment. That is, requiring the baker to create a cake for an event he finds objectionable amounts to compelled speech. And in the recent NIFLA case, ADF argued that pro-life pregnancy centers should not be required to inform women of the availability of abortion. Specifically, the group wrote, “California need not, and under the First Amendment cannot, use coercion of private speech to advance the outcome it prefers.”
With these two free speech cases, ADF is hoping for a quick reversal of fortune following 2015’s Obergefell v. Hodges and 2016’s Whole Women’s Health v. Hellerstedt. In both of these cases, the Court dealt serious blows to the group’s (and the Christian legal movement’s) goals on same-sex marriage and abortion rights. With victories in Masterpiece and NIFLA, ADF and the Christian legal movement would be turning a corner.
That said, ADF’s arguments in these cases are not necessarily new. As Religion in Public contributor Andrew Lewis argues, it was the issue of abortion that taught Christians to start seeing political disputes in terms of rights. This transformation did not happen overnight, but rather has slowly and steadily become part of the Christian conservative consciousness. ADF’s position in these two cases is further evidence of this shift, at least at the elite level.
Though its recent time in the spotlight has helped ADF stand out among its peers, there are plenty of other CCLOs fighting similar battles (for more, see my book on Christian legal advocacy). But few entities ever get to argue a case before the nation’s highest court, let alone two in one year. In that respect, ADF is certainly on a roll.
What’s more, ADF’s position in these cases serves as a preview of how the movement may defend Christian conservatives in the future. If Christian conservatives really are becoming a cultural minority (as has been discussed and debated on this site before), then we should expect to see more of this rights-based argument moving forward, especially if it is successful in the coming months. Thus, we may someday look to cases involving wedding cakes and abortion as fundamental to the Court’s jurisprudence on free speech.
Daniel Bennett is an assistant professor of political science at John Brown University. He is the author of Defending Faith: The Politics of the Christian Conservative Legal Movement (University Press of Kansas). You can follow him on Twitter at @BennettDaniel.