The Legal Muscle Leading the Fight to End the Separation of Church and State

On a dismal, rainy afternoon, over tea and Pepsi and a plate of fries at the Bob Evans restaurant in Cannonsburg, Kentucky, Bill Scaggs, a retired government and public-relations executive of ARMCO Steel, told me why he thinks that homosexuality is the greatest threat to America. “AIDS kills,” was his circa 1984 answer, “and the most common way to pass that on of course is from homosexual contact.” His voice cracking with indignation, Scaggs added that he refuses to use the word gay. “It’s homosexual, or worse,” he says. “Gay is in our Kentucky song! They took it away and trampled on it. We want it back.”

Scaggs is a board member of Defenders Voice, a local organization formed two years ago by a group of ministers and their followers who fought the formation of a Gay-Straight Alliance (GSA) at Boyd County High School, just up the road from where we sat. Located on a stretch of state highway dotted with churches, dollar stores, payday lenders, and a drive-through cigarette store, the high school had become a place where anti-gay harassment had become an everyday occurrence.

Most of the time, student organizers of the Boyd County GSA said, the basis for the harassment was religious. One of the organizers, Libby Fugett, said that “most of the people at school, even the younger people, who would call us names at school, they would cuss at us; they would say, You f’ing fag, you’re going to hell. . . . They just think it’s excusable because their religion backs it up. And that was a really big part of it. It’s okay for them to sin against us because we’re sinners.”

Leading the charge against the GSA were ministers, led by the Rev. Tim York, who said they “believe the Bible to be the word of God; we believe that homosexuality is a sin.” (In 2004, York, who is now the pastor of a church in Nashville, ran an unsuccessful campaign for the Kentucky Senate on an anti-gay-marriage platform, with backing from the state and national Republican parties.) York and his followers exerted such intense pressure on school officials that it influenced their decision on the GSA, ultimately forcing the students to sue the school system in order have the GSA recognized.

To settle the case, the school district agreed to conduct mandatory anti-harassment training for all students. Although the training consisted of just a one-hour video once a year, York was intent on preventing students from seeing what he considered “indoctrination [into the] homosexual lifestyle . . . indoctrination to tear down the Christian view that homosexuality is wrong. It is reverse discrimination, is what it is.” The minister-led group circulated opt-out forms in an effort to exempt students from watching the video, but the forms were not legally binding. York, his followers, and some parents wanted to exempt Christian students, legally, from watching the court-ordered anti-harassment video. To vindicate what he believed to be their legal rights, York knew exactly where to turn for help: the Alliance Defense Fund (ADF).

THE O’REILLY FACTOR

If Bill O’Reilly had a hero other than himself, it would be ADF and its courtroom crusaders lined up to fight the ACLU, Nickelodeon’s homosexual agenda, and heathens who are hell-bent on censoring the words “Merry Christmas.” ADF’s president, Alan Sears, a former Reagan administration prosecutor who, according to the ADF’s website, “God uniquely prepared” for his lead role in the organization, admits to being inspired by the right-wing commentator O’Reilly—hardly known for his jurisprudential acuity—to write portions of his book, The ACLU vs. America.

In the first chapter, Sears maintains that “from the very start, the ACLU wanted to destroy from within the America our founders intended.” As proof of the ACLU’s supposed anti-American, anti-Christian agenda, Sears fingers ACLU founder Roger Baldwin as an “agnostic and socialist who demonstrated Communist leanings”; Baldwin was moreover a friend of birth control advocate Margaret Sanger, whom Sears calls a “eugenicist who . . . establish[ed] the early link between the ACLU and abortionists.” Before the reader has turned even ten pages, Sears has established that only ADF’s godly legal services can save the country from the havoc the ACLU has wreaked on its justice system and culture.

While the ACLU gained its reputation by winning cases, ADF’s reputation—and fund-raising spigot—preceded its first court case. Created just 13 years ago with the support of such Christian Right powerhouses as James Dobson, D. James Kennedy, and Bill Bright, founder of Campus Crusade for Christ, it is today the nation’s leading Christian Right legal organization. Through its National Litigation Academy, ADF has trained more than 900 lawyers, who commit themselves to performing 450 hours of pro bono legal work “on behalf of the body of Christ.” It doles out millions of dollars a year to other Christian Right organizations—many of which are already well endowed—to cover attorneys’ fees and costs.

Its three principal goals are protecting the “sanctity of human life” (through litigating cases relating to abortion and end-of-life issues); promoting the “traditional family” (via cases concerning gay marriage and adoption); and ensuring the “religious freedom” of Christians (by portraying them as victims of discrimination on the part of those who seek to silence their ability to “speak the Truth” by preaching the Gospel). Using the propaganda machinery of conservative media outlets and churches, ADF has created a zeitgeist of Christian victimhood among people like Rev. York, who believes Christian students are the victims in Boyd County, and who has long admired ADF’s “fight with the ACLU to protect Christian freedom and Christian liberty.”

Last year, ADF received over $21 million in individual and foundation funding. Some of the major donors include the Covenant Foundation, financed by the “Granddaddy” of the Texas Christian Right, business mogul James Leininger; various members of the Amway-Prince Automotive empire, including the Edgar and Elsa Prince Foundation, whose vice president, Erik Prince (Edgar and Elsa’s son, and brother of Betsy DeVos, wife of the Amway magnate, right-wing financier, and unsuccessful Republican gubernatorial candidate Richard DeVos), founded the Blackwater USA military-security firm; and the Bolthouse Foundation, which is underwritten chiefly with profits from Bolthouse Farms, a family-run California company whose products are often seen at organic markets and Whole Foods. Bolthouse requires recipients of its grants to pledge adherence to a statement of faith that includes the declaration that “man was created by a direct act of God in His image, not from previously existing creatures” and a belief in “the everlasting blessedness of the saved and the everlasting punishment of the lost.”

SCHOOLHOUSE “DAYS”

Public high schools—where, as a result of a Vietnam-era case, public school officials can curtail student speech in the interest of preventing disturbances or infringement of the rights of other students—have become one of ADF’s principal battlegrounds. Right now, it is gearing up for its annual Day of Truth, scheduled for April 19, which ADF has sponsored since 2005 in response to the nationwide Day of Silence, intended to promote tolerance of LGBT students at public high schools. Last year, ADF claimed that students at 700 high schools participated in its organized effort “to counter the promotion of the homosexual agenda and express an opposing viewpoint from a Christian perspective.” Each year, only a handful of ADF’s longed-for federal cases emerge. But when they do, ADF makes a public relations spectacle out of them.

ADF recognizes that sometimes strange bedfellows—even the ACLU—can help its divine cause on behalf of the free-speech rights of America’s public high schoolers. It recently sided with its arch-enemy (and against the Bush administration) in a Supreme Court case in which an Alaska high school student charged that his First Amendment rights were violated when school officials forced him to take down a sign reading “Bong Hits 4 Jesus.” The student, Joseph Frederick, admitted that he designed the sign “to be meaningless and funny, in order to get on television” as the Olympic torch passed through his home town of Juneau in 2002. And even though Frederick’s cause had nothing to do with Jesus (and even implicated the Savior in the defiled culture that ADF disdains), ADF has an interest in continuing to shape Supreme Court precedent, an effort it began with its first landmark case 12 years ago and that has been aided by a judiciary increasingly friendly to its views. ADF’s legacy in these cases has been to elevate the First Amendment’s free speech clause over its Establishment Clause, which separates church and state, and thereby to promote religious speech—even proselytizing speechin the nation’s public schools.

In that first landmark case, Rosenberger vs. The Regents of the University of Virginia, ADF represented a student challenging the university’s policy of not funding religious student groups through the same student activity fees that funded secular clubs. The Supreme Court deviated from its precedents and based its decision not on the Establishment Clause—which prohibits a state institution like the University of Virginia from endorsing or appearing to endorse a particular religion—but on ADF’s theory of “viewpoint discrimination.”

In other words, ADF convinced the Court that instead of determining whether the school’s funding of religious clubs would be, or would appear to be, an endorsement of a particular religion, it should decide whether or not funding religious groups “discriminated” against them based on their religion. And discrimination is present, the Court reasoned, if the school funded secular clubs but not religious ones.
Rosenberger, then, not only began to bring down the Christian Right’s dreaded “wall of separation” between government and religious activities, but elevated ADF’s mythology of the victimized Christian to a legal precedent. The case, says Marci Hamilton, professor of constitutional law at Cardozo Law School and author of the book God Versus the Gavel, represented a “fork in the road” in Establishment Clause jurisprudence. “When framed as a viewpoint discrimination issue,” Hamilton adds, “it was going to be very hard for the university to win. . . . the word discrimination is so freighted in our culture with negatives that the minute that viewpoint discrimination was on the table, it was really the end.”

The Court reiterated its reasoning and applied it to the nation’s public elementary schools in a 2001 decision in an ADF-funded case, in which it forced the Milford Central School District in upstate New York to change its policy of prohibiting religious clubs from using its facilities for after-school meetings. Although the Good News Club, one of thousands sponsored nationwide by the Child Evangelism Fellowship, proselytizes to children, under Rosenberger, the school’s denial of its use of school facilities to the religious clubs, when it allowed secular clubs to use them, again constituted “viewpoint discrimination.” The Court rejected the school’s claim that it had to exclude the religious club in order to comply with the Establishment Clause.

According to Hamilton, in “viewpoint discrimination” cases, the plaintiffs need only claim discrimination, without any actual proof, to prevail on their assertion that they were illegally prevented from using school resources for religious activities. Compared with other civil rights law, said Hamilton, “it’s like living with Alice in Wonderland.”

These cases have become not only the chief legal weapon in ADF’s arsenal but also the organizing principle for all its fund-raising, public relations, and propaganda. ADF attorney Mike Johnson summed up his organization’s position when he said, “What we’re seeing in more and more cases is a discrimination against particular viewpoints, even outright hostility sometimes, against . . . kids who hold a Christian kind of world view who want to share Christian viewpoints or speech on campus, and they’re being discriminated against because some people see that as intolerant, or however they characterize it.”

“BROKEBACK MOUNTAIN IS IN”

Over the past several years, ADF has seized on “viewpoint discrimination” to put the gay rights movement in its cross hairs. Gay rights, in ADF’s view, cannot coexist with its version of Christianity. Anti-harassment codes at schools and universities, gay rights events, and other expressions of freedom or equal rights for LGBT people, necessarily silence Christians, who, ADF insists, are biblically compelled to condemn homosexuality. The “homosexual agenda,” then, is ipso facto anti-Christian. Alan Sears, ADF’s president, told the Family Research Council’s Values Voters Summit last fall that “the homosexual agenda and religious freedom are on a collision course.” He scoffed at what he called “propaganda about so-called oppression” of gays, countering that the “homosexual agenda” not only seeks to silence religious speech but it “probably includes the abolition of marriage.”

Shortly before the Supreme Court heard arguments in the “Bong Hits 4 Jesus” case, it had agreed to hear ADF’s appeal of another case, one in which a San Diego student, Chase Harper, who participated in the first Day of Truth, claimed that his school prevented him from wearing a T-shirt that read “Be ashamed, our school has embraced what god has condemned” on the front, and “Homosexuality is shameful, Romans 1:27” on the back. After a federal appeals court for the Ninth Circuit (the Christian Right’s bogeyman of the judiciary) ruled last year that the school could constitutionally restrain Harper from wearing the shirt in the interest of protecting the rights of other students, ADF issued a press release complaining that the opinion “implied that Brokeback Mountain is in, and the Bible is out.”

Back in Boyd County, Kentucky, ADF lost its attempt to exempt its clients from the mandatory training, and is now appealing. Kevin Theriot, ADF’s senior legal counsel, says the training video—which he hasn’t seen—is trying to “change the belief systems of religious students.” In fact, the video, which is publicly available, acknowledges that “your religious beliefs are sacred and we’re not trying to influence those,” and “you have the right to express your beliefs” that “homosexuality is wrong” without harassing another student.

Despite ADF’s ongoing litigation, the percentage of students viewing the video has steadily increased since 2004, when barely half the students watched it, to over 87 percent. But there is no longer a GSA at Boyd County High School, which to Bill Scaggs proves that it was just a “flash in the pan,” failing to see that his organization intimidated the club out of existence. As William Carter, a Boyd County High School graduate whose efforts to start the GSA resulted in years of personal upheaval and entanglement in lawsuits, said, “Who wants to join a club where you would have to explain to your parents, you know, I’m going to be involved in a federal lawsuit because I’m going to be in a club or someone hit me in the head with a can of pop, or someone’s going to kill me? No one’s going to do that. It’s high school.”