US Fighting Gay Rights and Abortion With the First Amendment

04:38  23 november  2017
04:38  23 november  2017 Source:   The New York Times

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The New York Times. Politics| Fighting Gay Rights and Abortion With the First Amendment . While the abortion case is the latest legal volley in a generation-long battle by social conservatives to limit the impact of Roe v. Wade, the Colorado baker’s case, which the court will hear next month, will

Jack Phillips, center, a baker, with supporters this month in Lakewood, Colo. Alliance Defending Freedom is representing Mr. Phillips, who refused to make a wedding cake for a gay couple, in his case before the Supreme Court next month.CreditDavid Zalubowski/Associated Press.

WASHINGTON — The details were spare when the event appeared this summer on Attorney General Jeff Sessions’s public schedule. He would speak on religious liberty to a group called Alliance Defending Freedom. No exact location was specified. No news media would be allowed in.

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Exhibit A, the headline: “ Fighting Gay Rights and Abortion With the First Amendment .” The Times wouldn’t want to leave the impression that the arguments the Alliance makes about free speech and religious freedom might have some actual merit.

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Only after an outcry over such secrecy — and the anti-gay rights positions of its sponsor — did a transcript of Mr. Sessions’s remarks emerge on a conservative website. “Many Americans have felt that their freedom to practice their faith has been under attack,” he told the gathering in Orange County, Calif. “The challenges our nation faces today concerning our historic First Amendment right to the ‘free exercise’ of our faith have become acute.”

Mr. Sessions’s focus was not an accident. The First Amendment has become the most powerful weapon of social conservatives fighting to limit the separation of church and state and to roll back laws on same-sex marriage and abortion rights.

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Few groups have done more to advance this body of legal thinking than the Alliance Defending Freedom. It has a larger footprint than most, with more than 3,000 lawyers working on behalf of its causes around the world. And it is better financed, bringing in $51.5 million in revenue for the 2015-16 tax year, more than the American Civil Liberties Union.

Among the alliance’s successes has been bringing cases involving relatively minor disputes to the Supreme Court — a law limiting the size of church signs, a church seeking funding for a playground — and winning rulings that establish major constitutional precedents.

But it hopes to carve out an even wider sphere of protected religious expression this term when the justices are to hear two more of its cases, one a challenge to a California law that requires “crisis pregnancy centers,” which are run by abortion opponents, to provide women with information on how to obtain an abortion, and another in which it represents a Colorado baker who refused to make a cake for a gay couple’s wedding.

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Legal abortion (or, as he put it, the “pro- abort juggernaut of death”) and gay rights , he insisted, could have been stopped if America had Lively then, with great self-awareness, lamented that the First Amendment is “being chipped away very rapidly” leading to the “persecution” of people like himself.

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While the abortion case is the latest legal volley in a generation-long battle by social conservatives to limit the effect of Roe v. Wade, the Colorado baker’s case, which the court will hear next month, will test whether groups like the alliance can persuade the court to similarly blunt the sweep of Obergefell v. Hodges, the ruling that enshrined same-sex marriage into law, as well as the anti-discrimination laws protecting gay men and lesbians.

If there is a battle somewhere to restrict protections for gay men, lesbians or transgender people, chances are the alliance is there fighting it. The alliance has defended the owners of a wedding chapel in Coeur d’Alene, Idaho, who did not want to perform same-sex ceremonies. It has tried to stop a Charlotte, N.C., law that gave transgender people the right to use the bathroom of their choice. It backed the failed attempt by the Arizona legislature in 2014 to allow businesses to cite religious freedom in turning away same-sex couples.

“We think that in a free society people who believe that marriage is between a man and a woman shouldn’t be coerced by the government to promote a different view of marriage,” said Jeremy Tedesco, a senior counsel and vice president of United States advocacy for the group, which is based in Scottsdale, Ariz. “We have to figure out how to live in a society with pluralistic and diverse views.”

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But civil liberties groups and gay rights advocates say that Alliance Defending Freedom’s arguments about religious liberty and free expression mask another motivation: a deep-seated belief that gay people are immoral and that no one should be forced to recognize them as ordinary members of society.

“They are a very powerful part of this broader movement, which is trying to bring a very particular biblical worldview into dominance at all levels of government and society,” said Peter Montgomery, a senior fellow at People for the American Way, a liberal advocacy group.

“They’ve got some very big, very clear goals,” said Mr. Montgomery, who has studied Alliance Defending Freedom since the group’s founding in 1994.

One of those goals was to defend laws that criminalized gay and lesbian sexual conduct.

In a brief the alliance filed urging the Supreme Court not to overturn a Texas law that made homosexual activity illegal, its lawyers described gay men as diseased and as public health risks. The court decided 6 to 3 that the law was unconstitutional.

The United States is not the only place the group has been active. Before Belize’s highest court struck down a law last year that banned “carnal intercourse against the order of nature,” the group sent activists there to work with local lawyers who were trying to keep the prohibition in place. In India, an Alliance Defending Freedom-affiliated lawyer was part of the legal team that has defended a similar law in the country’s Supreme Court. That law remains in place, though the Indian court recently signaled that it may revisit the issue.

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And when Russia approved a law in 2013 that imposed a fine for what it called propagandizing “nontraditional” sexual relationships among minors — a move that led for calls to boycott the 2014 Olympics there — Alliance Defending Freedom produced a nine-page memo in support of the law, saying its aim was to safeguard “the psychological or physical well-being of minors.”

Mr. Tedisco said the group had never supported the criminalization of homosexual activity. In Belize and India, he noted, the laws the group supported applied to heterosexual sodomy as well. He described the alliance’s involvement in both countries as “a small group of attorneys” who wanted “to resist the foreign activists that were trying to challenge their public health law.”

Asked if he and other alliance lawyers believed gay men and lesbians were immoral, Mr. Tedisco said, “I’m not going to get into what the Bible says or teaches about homosexuality.”

Alliance leaders have not always been so reticent.

Alan Sears, one of the founders of the group and its longtime president until recently, wrote a book in 2003 with Craig Osten titled “The Homosexual Agenda” in which they described possible consequences of same-sex marriage. “Why not two men and three women, or two men, one woman, and a dog and a chimpanzee?” the book said. “This means marriage will be no better than anonymous sodomy in a bathhouse.”

How the alliance is approaching the case of the Colorado baker, Jack Phillips, is an illustration of its evolving public relations strategy. Gone are the fiery denunciations of gay men and lesbians as sinners and reprobates.

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A sophisticated multimedia campaign, called “Justice for Jack,” portrays Mr. Phillips as the victim of heavy-handed state bureaucrats. Set to soft piano music, one video describes how Mr. Phillips has received death threats, hateful phone calls and lost 40 percent of his business.

“It’s not about refusing business,” Mr. Phillips’s daughter says to the camera. “It’s about having the freedom for him to artistically create something that allows him to honor Christ.”

Donald Knapp, the Coeur d’Alene chapel owner who sued the city because he worried a new nondiscrimination ordinance would force him to marry same-sex couples, said the alliance not only took up his case but also provided him with media training and flew him to Scottsdale to meet with other Christian business owners in similar positions.

“The A.D.F. was just trying to help us know what to say, how to state our position, what we believe in,” Mr. Knapp said in an interview. “They spent a great deal of time with us.”

Gay rights advocates acknowledge what they are up against. “They know those are messages that work better, and they are no longer leading with the messages they used to, which are ‘gay people are pedophiles and we need to keep them away from our kids,’” said James Esseks, an A.C.L.U. lawyer who focuses on gender identity and sexual orientation issues. “It’s a very intentional shift, a very strategic shift.”

Back in Washington, the alliance’s close connections with Mr. Sessions’s Justice Department seem to be deepening. In September, the department filed a brief arguing that Mr. Phillips should not be forced to violate his faith.

“There is no clear line between his speech and his clients,’” it said. “He is giving effect to their message by crafting a unique product with his own two hands.”

Correction: November 22, 2017

This article has been revised to reflect the following correction: Because of an editing error, an earlier version of a capsule summary for this article misstated the name of a group that uses the First Amendment to challenge gay rights and abortion laws. It is the Alliance Defending Freedom, not the Alliance Defending Justice.

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