Inside the Tactics that Won Christian Vendors the Right to Reject Gay Weddings
Before this summer’s landmark Supreme Court ruling that a Christian web designer in Colorado had the right to refuse to work on same-sex weddings, the legal advocacy group behind the case had spent nearly a decade laying the groundwork through similar lawsuits filed around the country.
Posted by Hicham ALAOUI RIZQ on 30 Sep, 2023
Inside the Tactics that Won Christian Vendors the Right to Reject Gay Weddings
By Jon Swaine, Beth Reinhard / The Washington Post 15:09 JST, September 30, 2023 Before this summer’s landmark Supreme Court ruling that a Christian web designer in Colorado had the right to refuse to work on same-sex weddings, the legal advocacy group behind the case had spent nearly a decade laying the groundwork through similar lawsuits filed around the country. Among the wedding vendors represented by the Christian nonprofit Alliance Defending Freedom were a photographer from Kentucky, videographers from Minnesota and a pair of Arizona artists who created stationery. Each challenged local laws barring businesses from discriminating based on sexuality, which the plaintiffs said violated their First Amendment rights. In its petition asking the high court to hear the Colorado case, ADF cited favorable decisions it had won in those three cases. Winning meant its clients were free to express their beliefs about marriage through their work “without fear of government punishment,” ADF said in a statement after one ruling. But an examination by The Washington Post of court filings, company records and other materials found that two of the three vendors cited in ADF’s September 2021 petition 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. Such developments led an opposing lawyer and a judge in two of the cases to separately question whether ADF’s plaintiffs truly intended to exercise the rights they sued for – or if their claims were instead manufactured to be test cases in a national litigation campaign. 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. Legal advocacy groups that challenge federal law in court often seek out individuals who are well-suited to serve as the face of their lawsuits. But ADF’s behind-the-scenes involvement in the businesses and public profiles of a nationwide roster of similar clients – some of whom subsequently showed wavering commitment to the weddings industry – reflects how aggressive the group has been in pursuit of that goal as it sought to overturn laws barring discrimination based on sexual orientation. That effort has also benefited significantly from the rightward shift in the federal judiciary under former president Donald Trump. After the Supreme Court agreed to take up ADF’s case with the Colorado web designer, Lorie Smith, 15 organizations – ranging from the U.S. Conference of Catholic Bishops to dozens of Republican senators and House members led by Sen. Ted Cruz (R-Tex.) – filed supportive briefs that also cited the previous ADF wedding vendor lawsuits. In an interview with The Post, ADF senior counsel Jonathan Scruggs said the group’s clients had sincere interests in working in the wedding industry. “These are real companies, real businesses, people who are trying to live their lives,” Scruggs said. Scruggs, who argued several of the cases in court, said the fact that multiple ADF plaintiffs abandoned the wedding industry did not undermine their claims. “Unfortunately, sometimes in the natural progression of people’s businesses, they happen to close,” Scruggs said. He said ADF’s advising clients on drafting corporate documents was among its range of legal services and that doing so – like using staged photo shoots for publicity – was not unusual for legal advocacy groups. After lawyers for Louisville, one of the cities sued by ADF, noted in March that the vendor involved had apparently not photographed a wedding in almost two years, the group recently told a federal appeals court that she had photographed two weddings this summer. One was a family member’s ceremony, The Post found. – – – ADF was founded in 1993 by conservative Christian leaders who opposed LGBTQ+ rights. As states began introducing the first wave of laws prohibiting discrimination based on sexuality, ADF founders devised a plan to fight back. One of them, the talk-radio pioneer Marlin Maddoux, argued in a book published that year that Christians should “shift to an all-out culture war” and build a “well-funded, well-trained army of religious rights attorneys” to prosecute it. In the three decades since, ADF has become one of the nation’s most powerful legal nonprofits. Tax records show the legal group, based in Scottsdale, Ariz., collected nearly $97 million in contributions in the 12 months ending June 2022 – a 27 percent increase over the previous year and almost double its 2016-17 total. ADF does not identify its donors, and the names of some of its most generous backers are protected by a second layer of secrecy: Tax records show that more than $112 million has been sent to ADF in the past five years through two of the largest Christian “donor-advised funds,” which also do not disclose their contributors. Donors to these funds can direct them to pass the money on to specific organizations such as ADF. ADF has roughly 90 lawyers on staff and maintains a nationwide network of more than 4,000 “allied attorneys” – described as “Christians committed to using their God-given legal skills to keep the doors open for the Gospel.” The group boasts 15 victories before the Supreme Court, including the recent decision in the Colorado case, 303 Creative LLC v. Elenis. ADF lawyers helped to draft and defend the Mississippi law that led to the Supreme Court decision overturning long-standing abortion rights last year in the case Dobbs v. Jackson Women’s Health Organization. Last month, the group won a federal appeals court ruling that curtailed access to mifepristone, the drug used in many abortions. While several founders were openly anti-gay – Maddoux in his 1993 book referred to “godless sodomites” – ADF moved to rebrand itself as American society grew more tolerant toward the LGBTQ+ community, using cooler language and presenting the issue as a policy matter. A section of ADF’s website dedicated to countering liberal critics says the claim that “ADF believes that a ‘homosexual agenda’ will destroy society” is false. But the group warned supporters for years that a “homosexual agenda” threatened to remake society, archives show, and some references to the term remain on its website even now. Starting in 2014, ADF filed preemptive lawsuits in nine states on behalf of Christian vendors who objected to same-sex marriage, which was on its way to becoming legal across the country. The plaintiffs claimed that the local laws infringed on their First Amendment rights because photography and other creative work are effectively speech, which the government may not compel. That argument was accepted in 303 Creative by a 6-3 Supreme Court majority that included Trump’s three appointees. The court found that the First Amendment barred Colorado from forcing Smith to create “expressive designs speaking messages with which the designer disagrees.” – – – In May 2016, ADF sued the city of Phoenix on behalf of two artists who made invitations and stationery under the studio name Brush & Nib. The artists had formed their company a year earlier, having met through their church. After Phoenix won in lower courts, the Arizona Supreme Court reversed those decisions in September 2019 and ruled in favor of the artists. The case was one of the three ADF cited in its Supreme Court petition. But Brush & Nib appears to have stopped doing business not long after its court victory. Even before the win, one of the artists co-founded a conservative polling and PR firm, a firm that has since worked for ADF and several prominent Arizona Republican politicians. The other artist moved about 100 miles away from Phoenix and formed a cleaning company in August 2021, records show. Their studio’s social media accounts, where they posted new work, have been closed or not updated since the victory. For more than a year, the studio’s website address has displayed advertising for an Indonesian gambling company. The artists, Joanna De La Cruz and Breanna Koski, did not respond to messages seeking comment. About two months after its victory in Arizona, ADF filed another of the cases it would later cite at the Supreme Court. It sued the Louisville-Jefferson County metro government in a federal court in Kentucky on behalf of Chelsey Nelson, a photographer who said she had dreamed of a career in photography growing up and always wanted to specialize in weddings. Nelson says she first photographed a wedding in 2016. When she formally incorporated her photography firm the month before filing her lawsuit, the paperwork filed to Kentucky regulators was signed by Aaron J. Silletto, a lawyer in ADF’s allied network, records show. Silletto said in an interview that incorporating companies was “not a primary focus” of his work at the time, which mostly involved litigation. “I was just asked if I could help set up an LLC, and that’s what I did,” said Silletto, who said he could not remember who had asked him. Silletto is now an assistant attorney general for Kentucky. When questioned by Louisville’s lawyers about the origin of her case, Nelson said in a deposition that ADF approached her in 2018. She did not elaborate. U.S. District Court Judge Benjamin Beaton, a Trump appointee, ruled in Nelson’s favor last summer. In a brief to the U.S. Court of Appeals for the 6th Circuit filed in March, a lawyer for Louisville said Nelson had apparently not photographed a wedding in almost two years. “As such, it is not even clear that Nelson still has an active wedding photography business, much less a business likely to be asked to photograph a same-sex wedding,” the lawyer, Casey L. Hinkle, wrote. Hinkle wrote that ADF was filing “manufactured cases to expand religious exemptions to anti-discrimination laws.” ADF told The Post that during the period in question, Nelson had a baby and worked as an editor of wedding photographs taken by others. Public records show that Nelson and her husband moved to her native Florida earlier this year. Louisville has asked the appeals court to throw out the case on the grounds that Nelson is no longer subject to city law. ADF claimed in response that Nelson remains willing to take work in Louisville, which is about 600 miles from her home. Late last month, ADF told the court that Nelson had photographed two weddings this summer, neither of them in Louisville. It filed copies of work contracts dated months after Louisville noted her absence from photographing weddings. Customers’ last names were redacted. The Post determined that the bride in the first wedding, held in Mississippi in July, was Nelson’s sister-in-law, and that Nelson was also a guest, according to the couple’s wedding website. The second wedding was held near Nelson’s home in Tallahassee last month. Speaking on the condition of anonymity to avoid being caught up in a legal dispute, the groom – a doctoral student from Nigeria – told The Post that he met Nelson through church. Reached by telephone, Nelson referred The Post to ADF, which declined to make her available for an interview. In the third case that ADF later referenced in its Supreme Court petition, the legal group won a federal court injunction in November 2019 that blocked Minnesota authorities from prosecuting a pair of videographers if they refused to film same-sex weddings. The lawsuit was initially dismissed, but it was reinstated by the U.S. Court of Appeals for the 8th Circuit in an opinion written by Judge David R. Stras, a Trump appointee. A year after obtaining the injunction, however, the Minnesota videographers dropped their lawsuit, saying in a court filing that they were “exploring new business opportunities outside the wedding field.” State officials alleged in a court filing that ADF scrapped the case to avoid turning over records that would show the videographers never had a viable wedding business, which ADF denied. As he agreed to dismiss the case, U.S. District Court Chief Judge John R. Tunheim said in an April 2021 order that the lawsuit had probably been a “smoke and mirrors case or controversy from the beginning.” Tunheim suggested ADF’s complaint had been “conjured up” to establish a legal precedent rather than to empower the plaintiffs to record wedding videos – of which, he noted, “they have made exactly two.” The videographers said in a court filing that they pursued their lawsuit in good faith before leaving the wedding industry due to the pandemic’s impact on events and gatherings. They did not respond to a request for comment. The Post found that several other ADF clients also abandoned weddings after they sued to challenge anti-discrimination laws in their regions. ADF sued state and county authorities in Wisconsin in March 2017 for Amy Lawson, a photographer who had incorporated her company two months earlier. A state court ruled that the laws Lawson challenged did not apply to her business. Since then, Lawson has removed “photography” from her company’s name and now focuses on corporate and branding work. “I don’t photograph weddings often anymore, but when I do . . . it’s for dear friends,” she wrote on her firm’s Facebook page in June 2021. Lawson did not respond to a request for comment. In July 2020, ADF sued Cuyahoga County, Ohio, on behalf of Kristi Stokes, who had incorporated a company for wedding officiant services about two months earlier. County lawyers argued that although Stokes claimed that her business was “a place of public accommodation,” a designation that would make it subject to the law barring discrimination, the business address she provided indicated otherwise. “This address belongs to a UPS Store, and there is no evidence that Covenant Weddings provides its services out of this place,” the lawyers wrote in one filing. The county said the law did not apply to Stokes’s business and agreed to a judgment that said officials would not compel her to officiate same-sex weddings. Yet Stokes has not officiated any weddings in the county since then, according to court records. Her company website, which featured examples of her work, has not been updated. Reached by telephone, Stokes referred The Post to ADF, which declined to make her available for an interview. In Virginia, ADF sued state authorities for Chris Herring of Chesapeake in June 2020, 25 days after he incorporated a photography firm. Herring’s lawsuit said he wanted to “point people to God through wedding photography.” But within three months, Herring dropped the case, records show. He now lives in Pennsylvania and works for a tech company. He declined to comment. The Post found that the day Herring dropped his lawsuit, ADF filed another in the same federal court for a different photographer, making similar allegations. Several passages in the new lawsuit were identical to sections of Herring’s complaint. A judge dismissed the new suit, finding that the plaintiff had failed to show he was at risk of being prosecuted. ADF has appealed. ADF’s lawsuits typically mentioned that the Christian wedding vendors had detailed their religious beliefs – and unwillingness to produce work conflicting with them – in company policy documents, contracts for their customers and statements they wished to publish on their websites. In several cases, copies of these documents were filed to court as exhibits. The Post found that contracts filed in eight ADF lawsuits each featured similar distinctive language on how the vendor reserved the right not to produce work that “communicated messages” or “expressed messages” contrary to their religious or artistic beliefs. Documents in several of the cases each used the same formatting or typeface. ADF attorneys later cited some of these documents in their lawsuits – including 303 Creative – to support their legal arguments. In Kentucky, Nelson confirmed in a deposition that her attorneys helped her to write her website statement. When pressed, she said she could not recall who prepared the first draft. In the Arizona case, the artists confirmed that ADF attorneys helped them to draft their work contract and policy document. In both cases, ADF attorneys objected to further questioning, citing attorney-client privilege. Stephen F. Rohde, a veteran civil rights attorney and a director of the ACLU of Southern California, described the activity as unusual and manipulative. “This firm has played a highly proactive role,” Rohde said. Allies of ADF disagreed. “That’s just lawyering,” said Hiram Sasser, executive general counsel of First Liberty Institute, a conservative legal nonprofit that last year won a Supreme Court ruling that a high school football coach in Bremerton, Wash., had the right to pray at the 50-yard line. The coach, Joe Kennedy, resigned from his job this month. ADF’s Arizona lawsuit also said the Brush & Nib artists had decided to take legal action after learning “[t]hrough a public records request” that the city had punished past breaches of its equality law. The records request was filed by ADF-allied lawyer Kenneth W. Schutt Jr., who specializes in inheritance and estate litigation, according to a copy filed to court. Schutt declined to comment. Colin Campbell, an attorney for the City of Phoenix, said in a July 2016 court hearing that the details of attorney involvement illustrated that the Brush & Nib challenge was “a made-up suit” that ADF was using as a vehicle for its cause, according to a transcript of the hearing. ADF denied this in court and said it was not relevant which lawyers helped prepare the documents. Scruggs told The Post that ADF advised religious clients “in a wide variety of contexts,” including on preparing company documents, to help protect them from legal threats, and that this was not unusual. “I don’t think it’s problematic to get advice from a lawyer,” he said. ADF said attorneys from other advocacy groups have used “more aggressive actions” in pursuing litigation than ADF has. In one case it cited as an example, Black members of the Newark branch of the NAACP wrote to authorities in a predominantly White suburb, expressing interest in municipal jobs there. When they were turned down because the suburb required employees to be residents, they sued, arguing that this illegally disadvantaged them. According to a court record, their lawyers “pre-addressed and prepared” their letters. ADF also cited four cases in which, in varying ways, the plaintiffs themselves intentionally laid foundations for court challenges. In two, liberal advocacy groups recruited people to pose as customers and call landlords and similar businesses to collect evidence of discrimination, then filed lawsuits based on what they acknowledged were undercover inquiries. In another case it cited, the American Civil Liberties Union of Illinois preemptively sued Cook County to challenge its law against videotaping police, saying it planned to start a new project focused on doing so. In still another, Cruz, the Texas senator, orchestrated the timing and size of a loan he made to his campaign specifically so it would violate a campaign finance law he intended to challenge. The Post also found that for three of its wedding lawsuits, ADF published promotional materials in which wedding photographer plaintiffs were shown taking pictures of women in bridal gowns who were actually ADF employees. In March, ADF published a video about Emilee Carpenter, a photographer in Elmira, N.Y., who is suing the state. The video shows Carpenter taking pictures of a mixed-race couple wearing a bridal gown and a suit. “I’m really working closely to kind of interpret the way I see their love and their connection,” Carpenter says in a narration, as clips of her with the couple are displayed. By comparing the video with social media profiles of ADF employees, The Post found that the woman dressed as a bride in the clip was an operations manager at ADF until March. The man depicted as her groom is not her husband or romantic partner, according to records and online posts. To promote lawsuits in Kentucky and Wisconsin, ADF published photo galleries of its plaintiffs taking pictures of other people in wedding outfits. Captions in the Kentucky case said the pictures showed Nelson “interacting with a bride and groom at a wedding photo shoot.” But in both cases, the people in the pictures had been married during the years before the lawsuits were filed. In each case, the woman presented as the bride worked for ADF, according to online profiles. In the interview, Scruggs said staging events for public relations campaigns is typical and that ADF never claimed in court that the photo shoots were authentic. Asking real couples to allow their wedding pictures to be used on ADF’s website presents “all kinds of different issues,” Scruggs said. Carpenter, the New York plaintiff, told The Post that her case and other ADF lawsuits were sincere efforts to establish legal protection for running a business in line with religious beliefs. “I feel what you are asking . . . is, are these cases fabricated, so to speak? And I’m directing that as a client, the answer is no,” she said.