The past few weeks have been an absolute assault on everything this country tells itself it stands for: families, equality, the working class, immigrants, and the true meaning of religious freedom. Despite that, the far right and its enablers from both sides of the aisle are calling for “civility” towards the government’s arbiters of oppression. [1-3] And all this while the newest Supreme Court vacancy after Gorsuch’s stolen seat means we face the loss of Roe v. Wade and countless other harms that could be inflicted on us by the very entity that’s supposed to serve as a ‘check’ on the creep of authoritarianism.
Groups like the Alliance Defending Freedom (ADF) have been working for more than two decades to ensure extreme conservative values take priority over the basic rights and civil liberties of Americans. They were founded in 1993 as a response to the popularity of the gay rights movement, and helped popularize the ridiculous idea of an insidious “homosexual agenda.” Their mission was to create an “alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith” to protect “religious freedom, the sanctity of life, and marriage and family” and return to the homogenous Christian ethical enforcement of the third through fifth centuries CE.  In 2016, The Southern Poverty Law Center officially labeled ADF a hate group, and in response, ADF coordinated with other designated hate groups to discredit that label in media and unsuccessfully appealed to Amazon “Smile” to return ADF to its list of charities that receive a portion of consumer sales. [5, 6]
Though they claim to seek religious freedom protections for all, ADF’s work has almost exclusively been in support of conservative Christians, and their stated mission and guiding principles reflect a staunchly Christian perspective. An investigative report in The Nation found only five instances in which ADF’s lawyers weighed in on appellate cases involving religious plaintiffs who were not Christian.  In fact, they wrote a legal brief supporting Trump’s “Muslim Ban,” which sailed past the Supreme Court this past term in Trump v. Hawaii, codifying discrimination against people with citizenship ties to Muslim-majority countries — people like me.  As an Iranian-American who lost a loved one fighting back the fire and toxic smoke in the Twin Towers on 9/11, I refuse to believe America is safer without people like my family members.
Then there’s the case of NIFLA v. Becerra, argued by ADF on behalf of a highly litigious and well-funded network of crisis pregnancy centers – anti-abortion fake clinics that mislead and shame women. They claimed that fake clinic operators’ free speech was violated by California’s Reproductive FACT Act, which mandated fake clinics provide simple disclosures on what they did and did not do – namely, they didn’t refer for or offer abortion and contraception. The argument was highly flawed, considering a factual sign on a wall is a far cry from forced speech (unlike, say, in the 38 states where abortion providers are required to verbally deliver anti-abortion counseling written by state legislators that is often based on anti-abortion junk science.) But hyper-conservative Justice Clarence Thomas made sure to weave his vehement disdain for abortion rights into his opinion and obscure the need for factual information in actual doctors’ offices. Justice Anthony Kennedy salted the wounds in his concurring opinion right before retiring and dooming Roe by opening a seat for Trump to appoint a justice as cruelly anti-abortion as his previous appointee, Justice Gorsuch.  And this warping of the law wasn’t an accident, it’s exactly what ADF and their allies want. ADF’s ability to manipulate the courts and implement a far-right stranglehold on our basic rights is chilling. But much like the figures highlighted in the pro-life sleeper cell I wrote about last week, ADF appears to have key allies in government that are helping enact their goals on multiple fronts. “Checks and balances,” indeed.
In late April, a legal watchdog organization filed a lawsuit to determine whether Trump’s Solicitor General Noel Francisco is an ADF-affiliated attorney.  According to The Nation’s report, he was listed as such in multiple documents released by the ADF, including as co-counsel in a case regarding the anti-establishment clause.  The DOJ failed to comment to The Nation regarding whether Francisco had been reviewed for ethical merit to argue the Masterpiece case, and it is unclear if his suitability on NIFLA was questioned at all.
Why does that matter? Well in NIFLA, Noel’s office filed a brief of amicus curiae officially in support of neither party, yet arguing that California’s law was unconstitutional under heightened scrutiny of the law.  There’s a lot of SCOTUS-specific legalese to unpack, which you can read up on thanks to SCOTUS blog’s resources,  but you don’t need to be a lawyer to understand there could be a major conflict of interest at play. And it’s not just fake clinics: in the immensely frustrating Masterpiece Cakeshop case also argued by ADF in favor of a baker’s ability to deny service for a gay couple’s wedding, Noel compared the situation to if, “African American sculptor could be forced to make a cross for a Ku Klux Klan event if he made crosses for the general public.”  Noel argued on behalf of Trump’s Muslim Ban, as well, but don’t worry, he’s not an Islamophobe: In fact, Noel closed his arguments by declaring, “Islam is a great country.” 
Kennedy is gone, and the fact that supporters of social justice counted on shreds of hope tossed out by a fickle conservative judge who at times traded in misogyny and hypocrisy is numbingly painful.  Reproductive, religious, LGBTQ+, voting, and labor rights stand so much to lose, among countless other causes. But none of this current crisis is about a single justice, or even two: it’s about systemic, powerful, ingrained forces working all too comfortably with our government to narrow rights for the many to empower a few, all while calling their oppression righteous piousness.
The courts matter massively, but the courts were never going to save us when groups like the ADF can manipulate the law to secure their repressive goals. We have to save ourselves, and while it’s going to be hellfire, this is the fight we were built for. We’re going to fight like our lives depend on it, because they absolutely do.