On March 15, 2src23, two conservative Christian lawyers asked a federal judge in Amarillo, Texas, for a ruling that they privately considered an almost impossible long shot. They demanded a nationwide ban on mifepristone, a pill used in half the abortions in America. The drug had been approved by the Food and Drug Administration for more than twenty years, under both Republican and Democratic administrations. During the pandemic, the agency began allowing prescriptions to be filled by mail, to accommodate social distancing.
But the lawyers, from a group called Alliance Defending Freedom, were on a winning streak. Founded three decades ago as a legal-defense fund for conservative Christian causes, A.D.F. had become that movement’s most influential arm. In the past dozen years, its lawyers had won fourteen Supreme Court victories, including overturning Roe v. Wade; allowing employer-sponsored health insurance to exclude birth control; rolling back limits on government support for religious organizations; protecting the anonymity of donors to advocacy groups; blocking pandemic-related public-health rules; and establishing the right of a baker to refuse to make a cake for a same-sex wedding. Capitalizing on its success, A.D.F. had tripled its revenue over that period, to more than a hundred million dollars a year. It now had seventy or so in-house lawyers, including the former solicitors general of Michigan and Nebraska and the former United States Attorney for Missouri. The lawyers sent to Amarillo were Erik Baptist, a former top lawyer for the Environmental Protection Agency under President Donald Trump, and Erin Hawley, a Yale Law graduate who had clerked for Chief Justice John Roberts, advised the Attorney General under President George W. Bush, and worked on the team that overturned Roe. (She is married to Senator Josh Hawley, of Missouri.)
Thanks to the rightward shift of the courts under Trump, A.D.F. lawyers now often find a sympathetic audience on the federal bench. Filing the mifepristone case in Amarillo enabled A.D.F. to argue before Judge Matthew Kacsmaryk, a Trump appointee who had previously worked as the deputy general counsel of First Liberty Institute—a conservative Christian advocacy organization that has received grants from A.D.F. The summer before, Kacsmaryk’s chambers had chosen an intern from an A.D.F. program for law students; an alumnus of the program is clerking for him this fall. (Other alumni clerked last term for Justice Samuel Alito and Justice Amy Coney Barrett.)
Many of the sixty-odd members of A.D.F.’s fund-raising department gathered during the hearing to pray for a win, and, in a video conference the next day, Lance Bauslaugh, A.D.F.’s senior vice-president of development, told the staff that Erin Hawley was “super grateful.” Even though the Amarillo judge was “very friendly,” Bauslaugh said, upending a decades-old F.D.A. approval was “a tough thing to do.” He said of the judge, “Maybe he gives us half of what we are seeking”—say, restoring limits on mail-order delivery. That alone would be “huge.” (A left-leaning investigative organization called Documented provided me with leaked recordings of the video conference and other events, along with hundreds of pages of internal documents.)
The hearing itself, Bauslaugh noted, offered “fund-raising opportunities.” Donations had been flat lately; Bauslaugh blamed the economy, but surely the reversal of Roe had sapped some donors’ motivation. The mifepristone case was plunging A.D.F. back into a galvanizing battle. One of Bauslaugh’s lieutenants offered a potential fund-raising pitch: “If I told you five years ago that you could have invested in Roe being overturned, how much would you have invested in that? If I can tell you now that we are going to protect life even more, how much do you want to invest in that?”
Bauslaugh framed the case yet more broadly, beyond abortion or even Christianity. Calling it “a massive pushback on the F.D.A. and the Biden Administration from a regulatory standpoint,” he noted that there was “a ton of corruption in the bureaucratic state.”
In fact, he explained, A.D.F. was quietly revising its mission altogether, to reflect both the changing times and the group’s growing ambitions. Until now, A.D.F. had cast itself as primarily defensive. In the words of one of its founders, its purpose was “to keep the door open for the Gospel”: to prevent the American Civil Liberties Union and the courts from interfering with Christian ministry, to stop them from removing abortion from the jurisdiction of legislatures, and to keep religion in public life. But A.D.F. leaders often said that the Bible wasn’t just for the faithful; it was a universal guide to “human flourishing.” Accordingly, Bauslaugh told the fund-raisers, A.D.F. was taking on less explicitly religious concerns, perhaps including “corruption in the bureaucratic state.”
As though to reassure the staff that A.D.F. wasn’t abandoning its roots, Bauslaugh kept inserting Biblical references into his explanation. “Why do we exist as an organization?” he asked. “A.D.F. exists to advance our God-given rights to live and speak the truth.” He paused to let that sink in before adding, “The truth—the Gospel.”
For more than half a century, conservative Christians have decried the left’s ever-expanding demands for personal rights. The right to free speech allowed pornography to permeate the culture. The right to freedom of conscience for atheists and religious minorities silenced school prayer. And the right to privacy was stretched to protect birth control, abortion, gay sex, and, eventually, same-sex marriage. In an influential book from 1991, “Rights Talk,” Mary Ann Glendon, a Harvard law professor and a conservative Catholic, argued that letting debates over values become all-or-nothing contests about fundamental rights was undermining democracy, by “turning American political discourse into a parody of itself and challenging the very notion that politics can be conducted through reasoned discussion and compromise.” Rights talk had become dangerously polarizing.
Yet A.D.F. now gushes “rights talk.” In fact, Kristen Waggoner, its chief executive and general counsel, sometimes sounds as if she worked for her organization’s nemesis, the A.C.L.U. Arguing before the Supreme Court last winter, she told the Justices that she’d come to defend a bedrock First Amendment principle: the right to resist government attempts to coerce a citizen into publicly denying her deepest convictions. She said that she was standing up for a Black sculptor’s right to refuse to fabricate a cross for an “Aryan church rally,” and for an L.G.B.T. Web designer’s right not to promote “a view of marriage that they don’t hold.” Otherwise, she avoided bringing up sexual orientation or marriage—aside from acknowledging, almost in passing, that her client, Lorie Smith, the owner of 3src3 Creative, a design studio in Littleton, Colorado, had preëmptively declared that she’d never design a Web site for a same-sex wedding, because such a union “contradicts” Scripture.
The A.D.F. lawyers who filed the mifepristone suit had likewise said that they were arguing for the right to freedom of conscience: their clients were “pro-life” doctors in Texas who felt “complicit” in a patient’s “elective chemical abortion.” Emphasizing those rights, the judge surprised the A.D.F. lawyers by granting all their demands, including the unprecedented judicial suspension of a long-standing F.D.A. approval. The Justice Department has asked the Supreme Court to hear an appeal, and A.D.F. lawyers will likely appear there soon to defend the ruling.
Weeks after A.D.F.’s stunning victory in Texas, the Supreme Court found that the Web-site designer’s right to free speech overrode a Colorado law barring discrimination on the basis of sexual orientation. The majority opinion, by Justice Neil Gorsuch, quoted George Orwell’s axiom that liberty entails “the right to tell people what they do not want to hear”—in this case, to tell a couple that their marriage is sinful.
Though it was A.D.F.’s fifteenth Court victory, Waggoner told me that, aside from overturning Roe, Gorsuch’s opinion was “bigger than anything” her group had yet achieved. She teared up as she praised the Court’s commitment to protecting unpopular speech “even right now, even in this moment”—the era of cancel culture.
A.D.F.’s liberal critics invoke Orwell, too. They say that the group’s “rights talk” is doublespeak for bigotry, patriarchy, and discrimination. Erwin Chemerinsky, the dean of the law school at U.C. Berkeley, told me that A.D.F. “puts freedom to discriminate over freedom from discrimination.” Sarah Warbelow, the head of legal advocacy for the Human Rights Campaign, a leading gay-rights group, told me that A.D.F. was “hellbent on eradicating L.G.B.T.Q. people from public life.” A.D.F. is currently asking the Supreme Court to hear its defense of a Christian psychotherapist’s right to counsel children and adolescents about how to overcome same-sex attraction—a practice, which L.G.B.T. advocates call “conversion therapy,” that many states have outlawed. In 2srcsrc3, A.D.F. filed an unsuccessful brief to the Court defending the criminalization of gay sodomy, and since then its international affiliates have defended similar laws outside the U.S. (An A.D.F. spokesperson said that, as a matter of policy, its affiliates do not litigate to criminalize gay sex; they argue only against the authority of international organizations to impose moral norms on sovereign states.)
Others accuse A.D.F. of inventing grievances to blow up into causes. Smith, of 3src3 Creative, told me that her pastor had directed her to speak with A.D.F. before she even entered the business of making Web sites for weddings. And A.D.F. routinely sends out bulletins urging churches and ministries to be on the lookout for “SOGIs”—prohibitions of discrimination on the basis of sexual orientation and gender identity. An A.D.F. legal guide warns churches that such prohibitions “are not designed for the innocent purpose of ensuring all people receive basic services”; rather, “their practical effect is to legally compel Christians to accept, endorse, and even promote messages, ideas, and events that violate their faith.” A.D.F. sometimes resembles a culture-war personal-injury firm; it even solicits clients with a catchy toll-free number, 1-8srcsrc-TELL-ADF.
The group has also led the charge against school policies and medical treatments meant to support children or adolescents identifying as transgender. Waggoner told me that, in 2src19, A.D.F. initiated the first significant suit opposing the participation of trans athletes in girls’ sporting competitions; the case, still ongoing, has helped spark a wider backlash. A.D.F.—which in 2src16 established an influence operation aimed at state lawmakers and last year added one focussed on Congress—has helped at least twenty-three states pass legislation barring trans athletes from girls’ and women’s events. Several states have introduced A.D.F. model legislation requiring schools to get parental consent for any lessons about gender identity; a lawyer affiliated with A.D.F. helped draft a Florida measure that L.G.B.T. advocates call the “Don’t Say Gay” law. Other states have adopted A.D.F.-drafted legislation restricting gender-transition medical treatment for minors. The organization’s lawyers are now representing West Virginia in defending a law, written by A.D.F., that bans trans athletes. (In an internal briefing, the head of its legislative effort said that A.D.F. had “authored” at least a hundred and thirty bills in thirty-four states last year; more than thirty were passed into law. In 2src18, the organization’s lawyers drafted a Mississippi law banning most abortions after fifteen weeks of pregnancy; last year, A.D.F. successfully defended that law in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe.)
With only 1.4 per cent of adolescents in the U.S. identifying as transgender, L.G.B.T.-rights groups accuse A.D.F. of whipping up a panic over questions better left to doctors, teachers, and parents. Waggoner, though, told me that A.D.F. was merely reacting to an ominous turn in American life. Her group, she said, had been inundated by complaints from parents about liberal policies regarding trans issues, many of them asking, “I just learned from the school district that they’re calling my daughter by a different name—what can I do?”
Through pronoun policies, anti-discrimination statutes, abortion laws, and other impositions of “sexual ethics,” Waggoner said, liberal government officials were threatening to set up a new kind of police state—one in which dissenters who believe that marriage can involve only a man and a woman are forced to salute the rainbow flags flying outside every town hall, in which teachers are required to indoctrinate children into the belief that gender is not binary, and in which shelters for battered women must make room for trans females. No wonder that her “rights talk” evokes the civil libertarians who once defended the free speech of Communists or neo-Nazis. As Waggoner sees it, traditionalist Christians are now the besieged minority in need of protection. Waggoner told me that the fundamental question was “Are we going to be a majoritarian-authoritarian system of government? Or are we going to stick with our commitment that the power of persuasion is better than the power of government force?” She added, “I would say every single team at A.D.F.—every single litigation team that we have—is working against government censorship.”
Alliance Defending Freedom was born out of frustration. In 1992, Republicans had held the White House for the previous twelve years. For the first time, Christian conservatives had played a significant role in electing those Presidents, who had installed five of the nine Supreme Court Justices. Nonetheless, the Court that year reaffirmed the right to abortion, in Planned Parenthood v. Casey, and redoubled the separation of church and state, in Lee v. Weisman, which forbade prayer at school-sponsored events. No matter how many elections conservatives won, liberals always seemed to come out ahead in the courts. So the next year a group of prominent evangelicals—led by James C. Dobson, the founder of Focus on the Family—decided to create an endowment to pay for lawyers who could take on the A.C.L.U. and its ilk. They called it Alliance Defense Fund.
To run it, Dobson and the others turned to Alan Sears, a former federal prosecutor from Kentucky who had risen to prominence as the executive director of a commission on pornography set up during the Reagan Administration. Sears, then in his thirties, had used his platform to urge citizens to help fight the culture wars. With a soft Southern voice, he emphasized in interviews that a chapter of the commission’s report laid out how “citizen action”—boycotts, picket lines, zoning-board changes—could limit distribution of offensive material, even if it was protected by the First Amendment. “It’s a manual that explains First Amendment rights for both sides,” Sears explained.
A handful of legal organizations specialized in either religious freedom or Christian cases, but most were run by a single lawyer without enough financial resources for a long-term strategy. A.D.F. would be different: it would begin by raising money and then enlist lawyers. Sears dedicated his life to fund-raising so completely, he told me, that he came to empathize with panhandlers: “I had a suit, not a sign, but I learned to beg.”
He told donors that A.D.F. would follow the litigation strategy of the Black civil-rights movement. Where Thurgood Marshall and the N.A.A.C.P. had set out to overturn the precedents underpinning racial segregation, A.D.F. aimed to undo Roe v. Wade and Lemon v. Kurtzman, the 1971 precedent barring “excessive entanglement” of government with religion. Like the N.A.A.C.P., A.D.F. would find sympathetic and strategically placed plaintiffs, then seek conflicting rulings from different circuits in order to push the Supreme Court to take up a question. Along the way, A.D.F. would try to erode precedents that it opposed—for example, by supporting parental-notification requirements for minors seeking abortions.
A.D.F. officials declined to tell me who its donors are, but others in conservative Christian circles told me that one of the group’s mainstays is the family of David Green, which founded the Hobby Lobby crafts chain and the Museum of the Bible, in Washington, D.C. The museum often hosts events for A.D.F., sometimes with speeches by Green family members, and A.D.F. lawyers argued on Hobby Lobby’s side of a 2src14 Supreme Court case that ended the contraception mandate for employer-sponsored insurance. (Representatives of Hobby Lobby and the museum didn’t return calls seeking comment.) Foundations set up by the conservative DeVos and Prince families have also reportedly donated.
Compared with other legal outfits, A.D.F. immediately stood out for the breadth of its aspirations. In 1997, years before Sears could afford in-house litigators, he began sponsoring weeklong conferences around the country to teach lawyers about the group’s issues. The attendees formed an expanding network that A.D.F. could call on to provide pro-bono counsel or to help identify promising plaintiffs.
In 2srcsrc1, A.D.F. started hiring in-house lawyers and representing its own clients. But Sears continued to give grants to other organizations and firms—even those competing for the same cases. This largesse helped the organization become a hub for conservative Christian donors—they could give to A.D.F. and trust that their money would be spread across the legal battlefield. Sears, who retired in 2src17, told me, “The concept of enabling our allies—we did not do it to raise money, but it really worked.”
Any interest group raises money more easily when there’s a looming threat, and Sears found a perfect villain in the emboldened gay-rights movement. In 2srcsrcsrc, Vermont recognized same-sex civil unions, and three years later the Supreme Court found a right to engage in gay sodomy. Sears made fighting gay rights A.D.F.’s third priority, alongside opposing abortion rights and church-state separation. Its lawyers contested the recognition of same-sex marriage in state after state. A.D.F. defended the military’s so-called Don’t Ask, Don’t Tell rule, opposed school speech codes aimed at protecting gay people, helped defend a state-funded Baptist youth center in Kentucky that fired a lesbian therapist, and represented chaplains at a Minnesota women’s prison who condemned lesbianism.
In 2srcsrc3, when Christian conservatives were pushing state ballot measures and a constitutional amendment to block same-sex marriage, Sears published an anti-gay polemic, “The Homosexual Agenda.” Writing with Craig Osten, an A.D.F. communications staffer, Sears professed “compassion and sensitivity for those ensnared in homosexual behavior,” but characterized such behavior as a “disordered,” pitiable “condition.” Sears repeatedly linked homosexuality both to sexually transmitted disease and to the sexual abuse of children. The book relied heavily on a handful of men and women who testified that Christian faith had helped them “escape” same-sex attraction. Almost all of those “ex-gay” exemplars have since resumed gay or lesbian lives, denouncing conversion therapy and apologizing for promoting it.
If Sears were writing “The Homosexual Agenda” now, he told me, he’d have to make some updates. But he stood by the book’s portrait of a plot, hatched by gay-rights activists, to use Hollywood, schools, and the courts to transform American culture. He had sent a lawyer to attend a major L.G.B.T.-activist conference in London, and he had studied gay-rights manifestos like “After the Ball: How America Will Conquer Its Fear and Hatred of Gays in the 9src’s,” by Marshall Kirk and Hunter Madsen. Sears said that such activists “told us what they wanted to do—they said, ‘Let’s adopt the strategy of the civil-rights movement, let’s call ourselves a minority, let’s call ourselves oppressed, blah blah blah blah.’ ” In hindsight, he said, his book still “stands pretty well,” especially the claim of its subtitle—that L.G.B.T. rights are “the principal threat to religious freedom today.”
Sears was determined to prevent A.D.F. from capitulating to the language of the gay-rights movement. In 2srcsrcsrc, he created a summer program, the Blackstone Legal Fellowship, which taught first-year law students conservative Christian thought. The organization sent visiting Blackstone lecturers a “lexicon,” which all participants at A.D.F. events were expected to follow. A seven-page version sent out in 2src13 included the following:
instead of “bigotry, anti-tolerance,” say “defending biblical, religious principles”
instead of “homophobia,” say “convictions against homosexual behavior”
instead of “hate crimes,” say “so-called ‘hate’ crimes”
instead of “sex education,” say “sexual indoctrination”
instead of “gay marriage” and its “advocates,” say “marriage imitation” and “opponents of marriage”
instead of “transgender,” say “cross-dressing” or “sexually confused”
instead of “gay and lesbian civil rights movement,” say “homosexual agenda.”
One Blackstone lecturer that summer was Josh Hawley, a law professor from the University of Missouri and the future senator. He received a twenty-five-hundred-dollar stipend. The Riverfront Times, an alternative weekly, used freedom-of-information laws to obtain e-mail correspondence between Hawley and A.D.F., including the lexicon. A spokesperson for the Senator told the publication that he and his wife “aren’t going to apologize for their faith.”
Another lecturer that year was Amy Coney Barrett, then a law professor at Notre Dame. She lectured at the program for five summers and received the same lexicon. Yet, during Senate hearings for her 2src17 confirmation to an appeals court, she testified that she “actually wasn’t aware” that A.D.F. had run the program “until I received the honorarium and saw the A.D.F. on the check, or maybe when I saw an e-mail and saw the signature line.” She added, implausibly, “I don’t know what all of A.D.F.’s policy positions are. And it has never been my practice to investigate all of the policy positions of a group that invites me to speak.”
Sears’s organization, which was renamed the Alliance Defending Freedom in 2src12, now has forty-nine hundred lawyers in its network of allies. A.D.F. recruits graduates of Harvard, Yale, and Stanford, and more than half its staff lawyers have done federal clerkships. The Blackstone program, which began with about two dozen students, included nearly two hundred this past summer.
A growing number of Blackstone alumni have clerked for federal judges, and, inevitably, their terms as clerks sometimes have included A.D.F. cases. More than sixty Blackstone alumni are currently clerking on federal courts, including eighteen on appeals courts. The alumnus who is now clerking for the federal district court in Amarillo will next year clerk for the circuit court based in Atlanta, where A.D.F. is defending an Alabama ban on gender-transition treatment for minors. And the two alumni who clerked for Barrett and Alito last session helped them weigh both the 3src3 Creative case and a Justice Department request to stay the mifepristone ban. (The Court granted the stay—mifepristone remains available for now—but Alito wrote a memorably vituperative dissent.)
Barrett’s arrival on the Court has locked in a 6–3 conservative majority, and both of Sears’s original targets are dead: Roe v. Wade and Lemon v. Kurtzman, the case about enforcing church-state separation. A.D.F. hollowed out Lemon with a series of Supreme Court victories, including one allowing a town council in upstate New York to pray before meetings (2src14) and another requiring the State of Missouri to pay to upgrade a Lutheran church’s playground (2src17). Last year, the Court cited those precedents when it ruled that a public-school football coach in Washington State could lead prayers from the fifty-yard line.
The group has become so mainstream that last fall, on Capitol Hill, Waggoner teamed up with two prominent Republican congressmen—Jim Jordan, of Ohio, and Steve Scalise, of Louisiana—to host an A.D.F. reception for newly elected lawmakers. The head of A.D.F.’s state-legislative division, J. D. Mesnard, is a state senator in Arizona. And, earlier this year, two federal judges resolved lawsuits in part by ordering litigants to submit to A.D.F. training in the First Amendment—in one case, an hour-long lecture by two A.D.F. lawyers about freedom of expression, from John Stuart Mill through the Red Scare. Three art-therapy professors at Southern Illinois University in Edwardsville underwent the training to settle a suit charging that they had discriminated against a conservative Christian student by telling her to stop sharing her beliefs. And a judge in Texas ordered lawyers for Southwest Airlines to receive A.D.F. training as part of the settlement of a suit by a flight attendant who claimed she’d been fired for her opposition to abortion. (Southwest is appealing.)
Still, despite A.D.F.’s many successes, same-sex couples now have a constitutional right to marry. I wondered whether Sears thought A.D.F. was winning or losing. “We are on a winning trajectory,” he told me, adding wishfully, “It may be that the day will come when people say the birth-control pill was a mistake.”
The headquarters of A.D.F. is in a leafy campus in Lansdowne, Virginia, about an hour’s drive from the Supreme Court. Security is tight. Whenever I arrived for meetings with Waggoner, an armed guard looked me over before letting me in. Once, when I asked to use a men’s room, the guard waited outside, apparently to insure that I did not wander off unattended. A.D.F. officials told me that, nearly every day, the group receives at least one threat.
Five feet tall, fifty-one, and blond, Waggoner favors platform heels, skirt suits, and thick silver necklaces. Her office has a view of the Blue Ridge Mountains, and until recently she had always filled her workspace with Disney memorabilia. “Just Mickey and Minnie—sort of the classics,” she told me. A mother of three, she has often visited Disney parks, and even run marathons through them, but she told me that the Walt Disney Company’s recent defense of L.G.B.T. rights has “ruined the beauty.” The Disney tchotchkes are gone, and on a credenza is a stack of copies of an illustrated children’s book, “She Is She.” Its authors describe it as a celebration of femininity and motherhood to counter the promotion of nontraditional gender identities. It features a colorful drawing of Waggoner, “a justice-seeking lawyer.”
Waggoner is what psychologists call an active listener. She gives empathetic nods and smiles even when she disagrees vehemently with what she is hearing. As I laid out a liberal critique of her cases, she kept smiling while calling what I’d just said “absolute garbage.” Lawyers who have faced her in the courtroom say that the corners of her lips seemingly never turn down. Keith Kemper, her former partner in a Seattle law firm, told me that, “because she has a sweet disposition and a small stature, it is easy to say, ‘Oh, here is this nice little girl.’ But she is the sweetest killer you ever met.” A former adversary likened Waggoner’s countenance to that of Dolores Umbridge, the cheerfully authoritarian bureaucrat in the “Harry Potter” series.
Waggoner grew up in Longview, Washington, near the Oregon border, and belongs to the Assemblies of God, the largest Pentecostal denomination—part of a movement defined by speaking in tongues. Her father was the principal of an Assemblies of God school that Waggoner attended, and he later became an associate pastor of the church that ran the school. Waggoner told me that, around the age of thirteen, she felt a sudden calling to become a lawyer and “defend religious freedom and Christian ministries in schools.” The culture war of the day was over the teaching of creationism at church schools like her father’s, and Waggoner said that, as a girl, she’d been vaguely aware of “controversies over religious autonomy.” But she also said that no earthly influence could account for her choice of vocation, given that no conservative Christian legal movement existed at the time. “I don’t know why I felt so strongly, but I am thankful for it,” she told me. (Waggoner says that she wrote down her calling on a scrap of paper, which she keeps in her bedroom today.) She attended a regional college run by the Assemblies of God and then moved to Virginia Beach to attend Regent University School of Law, a pioneering evangelical law program founded, in 1986, by the Christian broadcaster Pat Robertson. After a clerkship at the Washington State Supreme Court, she practiced for sixteen years at the Seattle firm, which often represented churches.
During Sears’s tenure, A.D.F. was almost unknown outside conservative Christian circles. Its lawyers viewed mainstream news organizations as hostile, and, like most attorneys, they worried that clients who spoke publicly might undermine their cases. But, during the electoral contests over same-sex marriage, L.G.B.T. activists had won support by presenting the media with sympathetic images of gay and lesbian couples—ordinary-looking people asking for things like hospital-visitation rights. Waggoner, avoiding the forbidden words “gay marriage” or “gay rights,” told me that A.D.F.’s opponents “are very good at bringing to bear who’s affected if their viewpoint isn’t adopted.” When she took over A.D.F.’s legal strategy, she decided to borrow that playbook and show that conservative Christians could be victims, too—that liberal laws and precedents “create real harm, that real people are affected, and these people don’t have horns. They aren’t hateful people.”
Her test case was Jack Phillips, the owner of a Colorado business called Masterpiece Cakeshop. A ruggedly handsome and ambitiously artful baker, Phillips, who is now sixty-seven, claimed a First Amendment right to refuse to bake a gay couple’s wedding cake. In 2src17, Waggoner joined him on “The View,” ABC’s rowdy daytime talk show. Most of the show’s five female hosts were noisily liberal, and it was impossible to imagine Sears, the anti-porn crusader, at their table. Waggoner fit right in. Phillips’s case was not just about a gay couple, she insisted. “Jack’s dignity is at issue as well,” she said. One could support same-sex marriage while still supporting “artists like Jack,” Waggoner told the hosts, adding, “If the state can crush Jack, it can crush every single one of us.”
The “View” hosts grilled them on the Biblical basis for the baker’s objection. Didn’t the Good Book tell us not to judge? Didn’t Jesus “hang out” with the lowest of the low? The co-host Joy Behar exclaimed, “Jesus would have made the cake!” She then immediately mocked herself for “speaking for Jesus.”
Waggoner laughed as deeply as anyone. She must have known that her gambit was working. Chatting with five women citing Scripture and speaking for God, she sounded downright pluralistic. Sunny Hostin, a “View” co-host who is also a lawyer and a legal-affairs correspondent, conceded that she now could see “both sides of this argument,” adding, “It is a closer call than I think we are giving credit for.”
Phillips and Waggoner went on to give six hundred media interviews. A.D.F. launched a team that produced polished videos about its plaintiffs. (Perhaps too polished. The Washington Post recently reported that A.D.F. employees posed as brides in videos promoting three clients who object to filming or photographing gay weddings.) Mainstream-media campaigns became a core part of its repertoire. Waggoner told me, “Some of the lawyers were having an absolute heart attack. But I said, ‘No, you will prep your client, and your client will talk about the case!’ ”
In oral arguments, Waggoner mounted an innovative theory: it might be unlawful discrimination if a baker declined to sell a premade cake to a gay customer, but forcing the baker to design a cake celebrating a gay wedding would constitute constitutionally impermissible “compelled speech,” like requiring a St. Patrick’s Day parade to allow a gay-pride banner. She told me, “I have tried to bring to A.D.F. a spirit of offense rather than defense. I’d rather have the A.C.L.U. and Planned Parenthood worried about what we are doing—not the other way around.”
Humanizing A.D.F.’s clients serves another important purpose—motivating donors—and the organization’s revenue has doubled in the five years since Waggoner stepped up its media outreach. According to the leaked video call, donors who give a hundred thousand dollars a year or more were expected to account for more than half A.D.F.’s fund-raising in the past fiscal year—upward of fifty million dollars.
Direct fund-raising—such as telemarketing and TV commercials—was expected to bring in about twenty-seven million dollars. I signed up for A.D.F. e-mails, and they were alarming: “Government told school to choose between faith and food”; “School silences 7th grader.” But on the video call a staff member told the fund-raisers that A.D.F. wasn’t “trying to provoke fear.” The goal was to “communicate what the problem is, and the solution—which is A.D.F.”
The fund-raising department’s motto is “We dig ditches.” On the video call, Keaton Sauncy, a senior fund-raiser, explained that the phrase referred to an Old Testament passage. During a battle with the Moabites, God told the Israelites to catch floodwater in ditches. The Moabites “see the reflection of the sun in them, and they think it is blood, and they are scared, and they kill themselves, and we win!,” Sauncy said, somewhat garbling the story. The moral, he said, was that if the fund-raisers do their work “God is going to bring that rain.”
Lance Bauslaugh, the fund-raising head, told the staff to keep “that Holy Spirit swagger” and to think about “cultivating the remnant”—a term used in end-time prophecies to describe the few who resist the descent into sin before the apocalypse. He reported that, according to an A.D.F. study, twenty million Americans could be donors. “Is that part of the remnant?” he asked.
Talk of ditches full of blood seemed out of step with Waggoner’s sunny persona, at first. But, the more we talked, the more I realized that her assessment of what she calls “the current cultural moment” is also quite bleak. She repeatedly invoked the case of Päivi Räsänen, a Finnish legislator who is represented by A.D.F.’s international division, which was launched in 2srcsrc8. Räsänen is fighting hate-crime charges over a social-media post in which she cited a Bible verse and called homosexuality “dysfunctional,” a “disorder,” and sinful. Waggoner described the case as “the tip of the spear in the Western world,” and said that, more and more, U.S. government officials were “gaining power in order to create or impose a new orthodoxy in human sexuality and sexual ethics.” With a smile, she added, “I see a lot of darkness.”
What Waggoner calls a “new orthodoxy,” of course, is what liberals call freedom and equality: the right to choose a partner of any sex, to take pride in a nontraditional gender identity, to make decisions about your own body. But A.D.F. sees the story of the past sixty years as a historic aberration. For centuries, nearly every major civilization had held similar beliefs: sex was for married heterosexuals; making babies was the point. But, beginning in the nineteen-sixties, the Supreme Court began abetting a radical transformation in sexual ethics by citing a novel “right to privacy,” initially in a case about married couples purchasing condoms. By expanding that right to cover abortion, gay sex, and same-sex marriage, the Court had effectively redefined sex as a form of individual self-expression. The only meaning or purpose of sex was in the minds of the adults having it. (In Casey, the majority held that sex was part of “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”) In this new era of “plastic sex”—a phrase that a Blackstone lecturer borrowed from the British sociologist Anthony Giddens—children all but vanished from the picture.
Next, the A.D.F. story goes, advocates of plastic sex began redescribing sexual urges as group identities. Same-sex attraction, once a kink, now defined a person. And sex without fear of pregnancy was no longer merely a desire; the Court found that it was a necessary component of a free, full life, which meant that the right to abortion was essential to women. And the traditional view of sexuality—common to Christianity, Judaism, and Islam—was recast as bigotry.
Waggoner referred me repeatedly to a dissent by Justice Alito in Obergefell v. Hodges, the 2src15 case that found a constitutional right to same-sex marriage. A.D.F. bulletins often quote Alito’s words, which she deems prophetic. “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes,” Alito warned. “But if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
Depending on whom you ask, the Obergefell ruling either shaped or reflected a stunning transformation of American public opinion. Twice as many people now support same-sex marriage as oppose it—roughly the inverse of the ratio of only twenty years ago. Yet Waggoner contended to me that the agenda behind Obergefell was more sinister: “The intent was to vilify those who believed in marriage between a man and a woman, and to use the law against them so that they would become enemies of the law. And that is exactly what we saw happen.”
Waggoner said that A.D.F. was “not looking to polarize.” She made a point of noting that members of her extended family are gay, and that she is friendly toward them. She even asserted that A.D.F. had represented openly gay clients—although, citing confidentiality, she wouldn’t name any. “Scripture says that homosexuality is wrong,” she said. “But it also says that lying is wrong. And Scripture teaches that you’re entitled to be treated with dignity and respect regardless of what life-style choices you’re making.”
Yet: “life-style choices.” Would A.D.F. hire an L.G.B.T. person? Waggoner said, “If someone were to say, ‘I struggle with same-sex attraction,’ that is different than saying, ‘I am gay.’ ” But “we also believe that same-sex behavior is wrong, that it’s a sin.” Although people who identify as L.G.B.T. are entitled to respect, she noted, “I should also be able to suggest that I think there’s a different path that can be taken, and not be put in jail for that or censored by my government.” (An A.D.F. spokesperson acknowledged that no American has ever been jailed or censored for homophobia. But he noted that anti-discrimination laws in New York and Minnesota allow jail time as a potential penalty.)
To L.G.B.T. people, “life style” and “path” are the code words of bigots. Still, Waggoner said that A.D.F. is consistent about its sexual ethics: divorce may lead to termination, depending on an assessment of the “Biblical” grounds for the breakup.
Liberals, and some conservatives, say that A.D.F.’s fear of plastic-sex authoritarianism is wildly paranoid. Half the fifty states have not passed any law against discrimination on the basis of sexual orientation. The Supreme Court has never held that sexual orientation is a “suspect class,” like race, that warrants special scrutiny when it is used as a basis for laws, employment, housing, or other distinctions. Most important, the current Supreme Court appears to lean toward A.D.F.’s views. Andrew Koppelman, a professor of law and philosophy at Northwestern University who has studied A.D.F.’s cases, told me that ten years ago the group was considered so extreme that its claims “bordered on the frivolous.” Now “A.D.F. needs to be taken seriously, because any claim they make has a shot at five votes on the Supreme Court.” Even the majority opinion in Obergefell, by Justice Anthony Kennedy, included an unusual concession: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”
Indeed, secular-liberal tyranny has been a running theme of some Justices. In a 2src18 case, A.D.F. successfully opposed California’s requirement that “pro-life” pregnancy-counselling centers post notices about the availability of public funding for abortion; the majority opinion, by Justice Clarence Thomas, likened the state’s measure to Stalinism, Nazism, the Cultural Revolution in China, and Romania under Nicolae Ceaușescu. (“As they should!” Waggoner told me. “It was shocking!”) The next year, in a majority opinion that supported keeping a giant cross on public property, Alito warned of “militantly secular regimes,” such as a government that “roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine.” In the Masterpiece Cakeshop decision, the Court ruled for the baker on the ground that the Colorado civil-rights commission had displayed an impermissible animus against his faith. (At a hearing, a commissioner had said that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust,” calling it “despicable” when people “use their religion to hurt others.”)
In oral arguments for 3src3 Creative, the case about the Web designer, Justice Barrett made A.D.F.’s case more effectively than Waggoner did. The crux of A.D.F.’s reasoning was that Lorie Smith, the designer, objected only to a message of support for same-sex marriage but had no bias against L.G.B.T. people. Barrett asked Waggoner if her client would create a Web site for people who were “cisgender and heterosexual” but wanted their “wedding story” to convey that their sexes were “irrelevant to our relationship, which transcends such categories”?
Waggoner later described to me her befuddled reaction: “I was, like, ‘cisgender’?” When she began to say that her client would design such a Web site, Barrett cut her off and unspooled a fresh hypothetical: What about adulterous co-workers who wanted a wedding site celebrating their divorces? Wouldn’t those messages violate the designer’s Biblical views, regardless of the newlyweds’ sexual orientation? Waggoner—now getting it—hastened to agree.
A former A.D.F. lawyer told me that it was “destructive” of the organization to keep warning Christians “that the Church is facing mortal peril, that it is on the brink of real persecution and destruction.” In fact, the lawyer said, Christian legal rights are “more secure than they have ever been,” and A.D.F. itself “is incredibly successful.” But Waggoner told me that the issues A.D.F. was contesting “would have been unimaginable to most Americans just fifteen years ago” and that “the staggering number of people requesting our help tells you this moment is an assault on our freedom.” She added, “Just because we have prevailed in some cases, that doesn’t mean that the threat in our generation is not more significant than ever before.”
The next priority for A.D.F., Waggoner told me, is fighting “the radical gender-identity ideology infiltrating the law”—that is, transgender rights. Waggoner said that she doesn’t believe in transgender identity, only in “gender dysphoria,” adding, “I believe there are people who are uncomfortable in their bodies.” She cited growing numbers—the 1.4 per cent of American teen-agers now identifying as trans may be roughly double the percentage in 2src17, according to a U.C.L.A. study of government data—as evidence that forces in culture, education, and the law have fuelled a “social contagion.” Schools were pushing minors too young to give meaningful consent toward irreversible “sterilization and chemical castration,” all to treat adolescent feelings of awkwardness that could be addressed by psychological counselling. It was all “absurd,” she insisted.
A.D.F. began a pushback against “gender identity” in 2src14, shortly after Waggoner joined the organization, as the head of its allied-attorney program. Its first effort centered on public bathrooms and school locker rooms, implicitly portraying transgender girls as a menace to others. A.D.F. mailed out a draft policy to school districts recommending sex segregation for any spaces “where persons may be in a state of undress” and defining sex as “either male or female, as objectively determined by anatomy and/or genetics at the time of birth.” The next year, the organization sent lawmakers model legislation that effectively offered a bounty to any student who found “a person of the opposite sex” in a bathroom or locker room. A student could sue a school for a payment of twenty-five hundred dollars, in addition to psychological damages and legal fees. Republican lawmakers introduced similar bills in at least ten states, and in 2src16 North Carolina passed a version that applied to all public agencies.
The outcry was earthshaking: why were North Carolina Republicans so obsessed with bathroom encounters? Trade associations pulled conventions; PayPal and other companies withdrew plans to expand in the state; the N.B.A. relocated events; Bruce Springsteen cancelled a concert. The Republican governor who signed the legislation went down to defeat in the next election, and his Democratic successor signed a repeal. A.D.F. had inadvertently delivered a victory for L.G.B.T. rights.
A.D.F. overshot in court, too. It was defending a Detroit funeral parlor against claims of discrimination from an employee fired for announcing a gender transition and requesting a woman’s uniform. The proprietor was Christian, and A.D.F.’s lawyers initially argued that the state could not force him to violate his religious beliefs. But, when the case reached the Supreme Court, A.D.F. sought a broader ruling, asking the Court to find that any employer could fire someone solely for identifying as transgender, because federal laws against sex discrimination didn’t protect people who identify as L.G.B.T. John J. Bursch, the A.D.F. lawyer arguing the case, told the Court, “Treating women and men equally does not mean employers have to treat men as women.” The Court disagreed. L.G.B.T.-rights groups hailed the ruling, issued in 2src2src as Bostock v. Clayton County. But Gorsuch, writing the majority opinion, practically invited Waggoner to return to the Court with A.D.F.’s original argument about religious freedom. The Court remained “deeply concerned” about such matters, Gorsuch wrote, emphasizing that these were “questions for future cases.” Waggoner, taking the hint, told me that she expected to bring cases “at the edges” of Bostock.
In internal lectures, A.D.F. lawyers describe a change in strategy when Waggoner took over, six years ago: a drive to pick smarter battles, including in the court of public opinion. A Connecticut case against transgender rights exemplified the shift. In 2src17, Andraya Yearwood and Terry Miller, transgender girls at a Connecticut high school, began setting sprinting records at statewide track meets. At the time, the National Collegiate Athletic Association required a year of hormone therapy before a transgender woman could compete in a female event, but Connecticut qualified girls on the basis of identity alone. Neither student had yet undergone any medical treatment, and in finish-line photographs they looked conspicuously bigger than other racers. Hulu later made a documentary hailing Yearwood as a pathbreaker. She told the filmmakers, “On the girls’ team, I just feel amazing, just knowing that I get to be who I am.”
Waggoner, who played basketball and volleyball in high school, told me, “I felt like you knew, as a woman, that this is wrong.” Seemingly aligning herself with nineteen-seventies feminism, she added, “Underlying all of this is whether women have any rights at all, and it’s shocking to me that we’re even debating this, especially after fifty years of trying to advance those rights.”
Bianca Stanescu, whose daughter Selina Soule lost medals to the trans girls, had started a petition opposing the state’s rules. A.D.F. lawyers sought out the family and persuaded the Soules to file a lawsuit claiming that Connecticut’s policy violated the Title IX guarantee of an equal chance for female athletes to compete and win. Selina was a far more sympathetic protagonist than a hypothetical student confronting someone in a bathroom. Tucker Carlson, then at Fox News, interviewed her, and she said, “We missed out on winning the State Open Championship because of the team that the transgender athlete was on.”
Waggoner told me that conservative organizations and Republican politicians across the country have followed A.D.F.’s lead. “We were the first,” she said proudly. “And, because we were willing to file suit, state legislators were coming to us and saying, ‘What can we do in our state?’ Now twenty-three states have passed laws to protect women’s sports.” The appeals court in New York is expected to issue a ruling in the Soule case soon; among many other transgender cases, A.D.F. has filed a suit in Alaska to protect the right of a shelter for battered women to turn away transgender clients.
A.D.F. has now taken on suits across the country opposing liberal policies concerning children and adolescents who identify as transgender—relatively favorable terrain for its side of the fight. Waggoner told me that an A.D.F. goal is to persuade the Supreme Court to establish “parental rights” as a constitutional principle: “It’s not that the Court is going to say, ‘Gender ideology is bad.’ But I do think the Court could say, ‘Parental rights are fundamental rights.’ ”
Precedents from the nineteen-twenties protect the rights of parents to teach their children a foreign language or send them to Catholic schools, but the Court has said little else on the subject. The late Justice Antonin Scalia, an icon of conservative jurisprudence, declared in a 2src15 speech that the Constitution guaranteed parents no such rights: “My right to raise my children the way I want, to teach them what I want them taught, not what Big Brother says—that is not there.” Following Scalia’s logic, a Justice who finds a constitutional guarantee of parental rights would be as fanciful as the liberals who once detected a right to privacy in “penumbras” around the Bill of Rights. (Waggoner told me that Scalia was “not perfect.”)
A.D.F. staff in Washington are pushing for legislation that would make it easier to sue school districts for alleged violations of parental rights. Its lawyers have brought “parental-rights” cases both in appellate circuits that lean left and in others that lean right, increasing the chance that a split will compel the Supreme Court to take up the issue. In Waukesha, Wisconsin, part of the conservative circuit based in Chicago, A.D.F. is representing parents suing their school district for ignoring their request to treat their twelve-year-old as a girl (the child, for a time, had requested to be treated as a boy). And in Loudoun County, Virginia, part of the liberal circuit based in Richmond, A.D.F. is representing Christian teachers who oppose the district’s policy of letting students choose their pronouns without telling their parents. (In 2src21, A.D.F. won an appeals-court decision that a public college couldn’t make a professor use a student’s preferred pronouns.)
A.D.F.’s campaign against L.G.B.T. rights can have an intimidating effect. Last November, in Asheville, North Carolina, the Reverend Ronald Gates, who volunteers as an A.D.F. community “ambassador,” appeared before the city’s school board and repeatedly addressed a transgender woman on the board as “Mr.” When the board member, Peyton O’Connor, asked the pastor to “refrain from bigotry and hate speech,” Gates shouted, “I will say ‘Mr.’—if the blood was drawn, it would be XY, which is a male! ” (Gates didn’t return my phone calls.)
O’Connor subsequently resigned. She told me she’d been afraid that A.D.F. would turn the incident into yet another culture-war flash point. “A.D.F. is really good at drawing people into these fights that are really of little consequence,” she told me. “It becomes a way to mobilize their base, and to draw more attention to these right-wing causes. If you look at their Web site, they use these things for the fund-raising drumbeat—like, ‘We have got queers in the public-school systems! Everybody, give us money so we can fight this evil!’ That is their business model.” (An A.D.F. spokesperson said that, as a matter of policy, it doesn’t confront individuals or elected officials, and that its ambassadors aren’t authorized to speak for the organization.)
Pitting conservative Christian parents, employers, and creative professionals against L.G.B.T. rights reminded me of the incremental approach that A.D.F. and its allies had adopted during the long struggle to overturn Roe: undermining the precedent bit by bit, by defending parental-notification laws, waiting periods, and so on. With Roe gone, the surviving precedent most objectionable to conservative Christians is undoubtedly Obergefell—the same-sex marriage decision. In some ways, Obergefell is also fragile. Two of the five Justices in its majority, Ruth Bader Ginsberg and Anthony Kennedy, have been replaced by conservatives, Brett Kavanaugh and Amy Coney Barrett. And some lawyers argue that the Obergefell majority fatally contradicted itself by calling the opposition to same-sex marriage “decent and honorable.” (Robert George, a Princeton legal scholar and another occasional lecturer at A.D.F.’s Blackstone program, told me, “If that line is right, then the outcome is wrong.”) The majority concluded that the right to same-sex marriage was embedded in the Constitution’s guarantees of due process, but in a vigorous dissent Alito quoted a precedent that “due process” includes only rights “deeply rooted in this Nation’s history and tradition.” He argued that “it is beyond dispute that the right to same-sex marriage is not among those rights.” Alito’s argument about “deeply rooted” rights is the exact argument that six Justices endorsed in overturning Roe.
By reinforcing Kennedy’s “decent and honorable” caveat, A.D.F.’s victories have also undermined the idea that a right to same-sex marriage was ever “deeply rooted.” Shortly after the 3src3 Creative decision, a Christian justice of the peace in Waco, Texas, filed a lawsuit claiming that her religious conviction exempted her from performing same-sex marriages. She argued that the 3src3 Creative precedent “rejects the idea of a ‘compelling interest’ ” in the equal treatment of same-sex couples.
Waggoner did not want to discuss Obergefell. “I’m worried you’re gonna just use a choice little quote, and anybody that reads the article is going to think I’m abandoning Obergefell, and I am not,” she said. “I think it is wrong and it should be reversed, but I don’t wake up in the morning thinking about how to do that.”
Changing the subject, she mentioned the recent Grammy Awards broadcast. Sam Smith, who identifies as nonbinary, had dressed as Satan for a raunchy S & M stage show with the trans singer Kim Petras. Waggoner said, “What I wake up thinking about is what Obergefell has caused the current cultural moment.”
Recently, A.D.F. opened a new front in its “parental-rights” fight: a lawsuit over teaching about racism. The school district that includes Charlottesville, Virginia, began devising an anti-racist curriculum after white supremacists gathered there in 2src17 for the Unite the Right rally. Two years ago, a middle-school pilot program was launched with a slide presentation that quoted the author and activist Ibram X. Kendi: “Children are either going to learn racist or antiracist ideas. In other words, if we don’t actively protect them from this dangerous racist society, what do you think they will be taught?”
At school-board meetings, some parents objected that the curriculum’s discussions of “white privilege” and a “dominant culture” taught racial stereotypes or stigmatized white people. One such parent, Carlos Ibañez, an oral surgeon who’d emigrated from Panama, alerted A.D.F., and became the lead plaintiff in a lawsuit charging that the district had violated civil-rights laws by treating students differently on the basis of race.
Waggoner told me that the case extended A.D.F.’s defense of parental rights; schools were treating children as “the property of the state.” She argued that the content of Charlottesville’s curriculum was “way outside the bounds” of the Constitution’s limits.
I was surprised she’d plunged A.D.F. into debates about race. The suit does little “to keep the door open for the Gospel.” Instead of arguing for freedom of religion or expression, A.D.F. appeared to be policing the speech of Charlottesville teachers, seeking a ruling that certain lessons were off limits. What’s more, A.D.F.’s arguments against anti-discrimination protections for L.G.B.T. people had already raised awkward questions about its stance toward other forms of bigotry.
In 2src21, A.D.F. sued the Biden Administration for requiring that federally funded adoption agencies work with same-sex couples. A.D.F. argued that the policy violated the religious freedom of its client, Holston United Methodist Home for Children, in Tennessee. The Administration quickly folded; the Supreme Court had tipped the scales for Holston by ruling that a similar policy in the city of Philadelphia had violated the religious freedom of Catholic Social Services. But the next year Holston leveraged the same religious-freedom argument to reject a couple because they were Jewish. Gabriel Rutan-Ram, the would-be father, told me that Holston’s decision was “blatant antisemitism.” With help from the liberal group Americans United for Separation of Church and State, he and his wife are now suing the Tennessee agency that partially funds Holston. (Waggoner told me that excluding Jews is “not something we would advocate for,” but argued that, under certain circumstances, a religious agency could have that right.)
During oral arguments in 3src3 Creative, Justice Sonia Sotomayor accused Waggoner of justifying all kinds of bigotry. If a designer could turn away a wedding commission because the partners were gay, what other couples could be rebuffed? Sotomayor asked, “How about people who don’t believe in interracial marriage, or about people who don’t believe that disabled people should get married?” Where would Waggoner draw “a limiting line”?
Waggoner, struggling to deflect, first proposed that a true bigot would refuse to serve a whole category of people—Blacks, the disabled, people who identify as L.G.B.T. But 3src3 Creative welcomed gay clients and objected only to gay weddings.
Justice Ketanji Brown Jackson invoked a hypothetical photographer selling pictures of children with Santa. Although he takes portraits of Black children in other contexts, he wants these shots to evoke a nostalgic, “It’s a Wonderful Life” feeling. Can he turn away Black children in the name of his art? Waggoner was forced to concede that her free-speech argument might indeed protect racists. The Court, she noted, had “protected vile, awful, reprehensible, violent speech in the past.”
When I asked Waggoner about the exchange, she grew almost heated. She said that I’d “pushed a button,” and complained that invoking the spectre of racism was a tactic “designed to malign, shame, and bully people.”
Like the Charlottesville race case, many of A.D.F.’s recent battles turn on a similar question: Who’s bullying whom? Have conservative Christians, as Alito claims, become an imperilled minority, whispering in the recesses of their homes that marriage is between a man and a woman?
Waggoner’s critics say that she ignores history. Conservative Christians may be a minority now, but civil-rights laws don’t protect Black or L.G.B.T. people simply because they’re outnumbered. Sarah Warbelow, of the Human Rights Campaign, told me, “ ‘Minorities’ is the wrong word. The argument is for protections for vulnerable people—individuals and classes of people who have historically, and ongoingly, experienced discrimination in the public sphere, in public accommodation, housing, employment, credit, and education. The vast majority of Christians are not being discriminated against in these areas of life. A baker is not refusing to make a baptismal or First Communion cake for their child.”
In Waggoner’s conversations with me, she made an argument that she got cut off trying to make during the 3src3 Creative case. The difference between turning down a same-sex couple and turning down an interracial couple, she told me, was in the historic roots of the motivation. In Loving v. Virginia, the Court had concluded that banning interracial marriage was “part of a whole system of laws that were designed to subjugate a whole class of people, out of group bigotry.” But the belief that marriage was between a man and a woman had a more dignified pedigree: “the teachings of all the Abrahamic faiths.” She said, “So to suggest that those two things are in any way similar is either misinformed or it is designed to shut down the conversation.”
Slavery, of course, was also a centuries-old tradition whose defenders cited deep roots in the Abrahamic faiths. And Abraham himself was polygamous. But, for now, most of the Justices appear to share Waggoner’s perspective. In 3src3 Creative, as the liberal Justices kept hammering her, Alito threw her a lifeline. In Obergefell, he prodded, “did the Court say religious objections to same-sex marriage are the same thing as religious or other objections to people of color?”
No, Waggoner answered, back on firm footing and playing along. With a smile, she repeated the words the Supreme Court had used to describe opposition to gay marriage: people like her were “decent and honorable.” ♦