First Amendment—What First Amendment?

Although in the Senate hearings Amy Coney Barrett has shown herself to be a little hazy on the First Amendment, she taught constitutional law from 2011 to 2016 at the Blackstone Legal Fellowship, a summer training program for Christian law-school students. Blackstone Legal Fellowship was established by the Alliance Defending Freedom, a right-wing “Christian” advocacy group, for the purpose of inculcating a “distinctly Christian worldview in every area of law.” The ADF’s stated goal is the defense of “religious freedom, sanctity of life, and marriage and family.”

The Alliance Defending Freedom advocates and litigates their version “religious freedom” for their version of “Christians.” Other religious groups, not so much. In fact, ADF views it as a zero-sum proposition: their religious freedom generally means restricting other religions’ freedom.
Focus on the Family founder James Dobson and other conservative evangelicals established the Alliance Defending Freedom in 1993 to generate opposition to the American Civil Liberties Union.

An early Supreme Court victory for ADF came in 1995. The Court held that for a public university to fund religious student groups with the same student activity fees used for secular groups did not violate separation of church and state. In fact to not fund both would be “viewpoint discrimination.”

To the ADF, pro-Christian means anti-LGBTQ. ADF’s actions against LGBTQ people have earned it a “hate group” label from the Southern Poverty Law Center. In one high-profile case they litigated, the Supreme Court ruled that anti-discrimination laws infringed on a retail bakery’s religious freedom. It is OK to refuse to sell a cake to a same-sex couple.

The ADF’s perfect Supreme Court won-lost record was spoiled this year when the Court ruled that an employer could not terminate a transgender person for being a transgender person. The majority opinion was written by Neil Gorsuch, the justice occupying what would have been Merrick Garland’s seat, breaking ranks with his conservative cohorts. (He also recently wrote the majority opinion on a ruling that the state of Oklahoma and the U.S. must honor a treaty with Native American tribes that had been flouted for more than a century.)

The Alliance Defending Freedom continues apace fighting for its ironic version of freedom. And they have succeeded. Regardless of the fate of the current occupant of the White House, the Supreme Court and all federal courts will be controlled by acolytes of the Federalist Society for at least a generation.

Will Neil Gorsuch turn out to be a wild card? Don’t count on it.

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