Does Faith Equal Free Speech?
Exploring Evangelicals’ Amicus Arguments in Religious Liberty Cases
Daniel Bennett
Department of Political Science
Southern Illinois University
[email protected]
March 24, 2012
In this paper I analyze the amicus curiae arguments made by conservative evangelical groups
(particularly, Conservative Evangelical Legal Organizations) in four similar U.S. Supreme Court
cases dealing with religious liberty. Previous research has highlighted the effectiveness of the “Free
Speech argument” in these kinds of cases, while at the same time suggesting that not all Christian
Right legal groups have embraced this argumentation strategy. In religious liberty cases where the
Free Speech argument is explicitly made in the case’s merits brief, how do CELOs and related
groups filing as amicus curiae structure their own legal arguments? To what existing precedents do
CELOs appeal in their briefs? Put simply, do CELOs equate faith with free speech? I find that
prior scholarship is correct in stating that not all CELOs use the Free Speech argument in their
amicus briefs in support of religious liberty, illustrating that there is not unanimity among CELOs
and related groups in their legal argumentation methods in these types of cases. Additionally, I find
that among those who do make the Free Speech argument, they do so with varying degrees of
emphasis and intensity. I then discuss the implications of these findings on a larger topic of
interest: the structure and nature of the CELO community as a whole.
Prepared for presentation for the Annual Meeting of the Western Political Science Association, Portland, OR, March
22-24, 2012. I thank Kyle Dvorak, Laura Hatcher, Scott McClurg, Bihter Tomen, Logan Strother, and Maja WrightPhillips for their helpful comments on this paper.
Introduction
Conservative Evangelical Legal Organizations (CELOs) pursue the goals of conservative
Christians in the legal realm, engaging in litigation, filing amicus curiae briefs, raising constituent
awareness on key issues, and more (den Dulk 2001; Brown 2002; Hacker 2005; Southworth 2008).
Over the last 25 years CELOs have adopted the use of the Free Speech Clause of the First
Amendment in their amicus curiae briefs and legal defense of religious liberty issues. Essentially,
such groups have made the argument that actions like passing out religious literature in public
spaces, protesting outside abortion clinics, and requesting access to generally available government
resources are not only protected under the Free Exercise and Equal Protection clauses, but also the
Free Speech Clause. Jay Sekulow, chief counsel with the American Center for Law and Justice, has
been identified as one of the most important architects of the “Free Speech argument”, extending
back to Sekulow’s appearance before the U.S. Supreme Court in Board of Airport Commissioners
of Los Angeles v. Jews for Jesus (Brown 2002).
However, in spite of the success the Free Speech argument has had before the federal courts,
including the Supreme Court, not all CELOs have endorsed this argument as being in the best, longterm interest of the evangelical community. Some groups believe that endorsing such a legal
argument, while potentially leading to victories in the courts, will ultimately be used to protect
behaviors and actions that these groups do not want to see protected, such as pornography or flagburning; they are therefore hesitant to make the Free Speech argument (Brown 2002). These groups
arguably embrace a more principled approach to their litigation and filing strategies, while groups
endorsing the Free Speech argument take a more pragmatic approach in their legal endeavors in the
broader legal pursuit of their political interests (Hacker 2005).
This contention, that certain evangelical groups are less apt to adopt this Free Speech
argument than other evangelical groups, provides the motivation for this study. If such a contention
1
is correct we should be able to identify differences among the amicus briefs filed in related cases to
have reached the Supreme Court; that is, some groups should use the Free Speech argument when
making their case in their brief, while other groups should not. Is there, then, a noticeable
difference in the amicus arguments and legal language from CELOs in religious liberty cases? Put
another way, does faith equal free speech for these organizations? Looking at the earliest cases to
include the Free Speech argument in this context and comparing their briefs to the briefs in more
recent cases allows us to track the evolution of this legal argumentation strategy over time. This
leads to increased understanding of which groups use the Free Speech argument in religion cases
and which groups do not, while also uncovering distinctions and differences among CELOs and
related conservative Christian organizations in their litigation strategies in this particular arena. It is
this latter result that is arguably more interesting, particularly in terms of presenting broader
implications for future research on the conservative Christian community in the legal and political
realms. Ultimately, in this paper I argue that the differences in how CELOs and related groups
make their legal arguments in related kinds of legal cases provides valuable insight into the
composition of not only these groups, but the broader community of CELOs on the whole.
Through a two-case comparison study of the amicus briefs in two distinct periods of
Supreme Court rulings on religious liberty cases, I explore and discuss the legal arguments of the
CELOs and related evangelical groups that filed amicus briefs in four specific cases.1 Through a
close reading of these amicus briefs I take note of the language and structure of each of these briefs,
identifying the instances when CELOs and related groups utilize the Free Speech argument and the
distinctions among them in terms of legal doctrine referenced, precedent invoked, and language
1
Each of the briefs explored in this study were filed after the respective case was granted review by the Supreme Court,
commonly called the “merits” stage. There is evidence to suggest that briefs filed at the “certiorari” stage (prior to the
Court granting review) differ from those filed at the “merits” stage, particularly in terms of greater time for preparation
and increased overall participation at the “merits” stage (Caldeira 1990). With this in mind, I do not explore the briefs
(if any) filed by CELOs or related groups at the “certiorari” stage of these court cases.
2
used in their briefs. In doing so I hope to forward a clearer understanding of the behavior and
strategies of conservative Christian groups filing amicus briefs, a question hinted at but not
adequately addressed in previous studies on conservative Christian cause lawyers (Brown 2002;
Hacker 2005). By exploring the ways in which CELOs and related organizations, acting
strategically as legal interest groups, file amicus briefs in religious liberty cases I am able to check
Brown’s (2002) contention that not all CELOs will be prone to use the Free Speech argument as a
means to securing their broader policy goals. More importantly, this study contributes to a richer,
fuller understanding of the composition and structure of the CELO community and of the broader
Christian Right as a whole, at least in terms of how these groups structure their amicus briefs in
salient legal issue areas.
Existing Literature
Interest groups across the ideological spectrum have consistently relied on the filing of
amicus briefs in the federal courts as a means of reaching their desired legal and policy outcomes.
Amicus briefs have a tangible impact on judges’ and justices’ decisions in case outcomes, making
them a valuable tool for interest groups not directly involved in the litigation aspect of a case
(Caldeira and Wright 1988; McGuire and Caldeira 1993; Songer and Kuersten 1995). What is
more, interest groups and lawyers often work together in filing amicus briefs, and this cooperation
has been shown to pay dividends in terms of resulting legal victories (McGuire 1994). Given that
CELOs are legal interest groups for the broader conservative evangelical community, it makes
sense to examine the amicus briefs and resulting networks in series’ of similar cases in order to
explore which CELOs practice similar legal strategies (like the use of the Free Speech argument),
and which groups break away from these strategies in favor of alternative arguments and
approaches.
3
At the broadest level, CELOs and their affiliated attorneys belong in the conversation
concerning cause lawyers, lawyers who embrace the pursuit of a given ideological cause. In a way,
these lawyers and groups sacrifice attention and duty to the client, a tenet of the traditional legal
profession, for the pursuit of the broader cause (Sarat and Scheingold 1998; Scheingold and Sarat
2004). These lawyers and organizations see the law as a legitimate mechanism for pursuing
political and rights claims (Scheingold 1974; Zemans 1983). But cause lawyers do not view legal
victories strictly in terms of favorable judicial decisions, as there are a variety of ways to achieve or
realize goals via legal mobilization (McCann 1994; Van Dyk 1998; Paris 2001). Ultimately, cause
lawyers view the law as a legitimate and effective means through which to further their policy
agendas, and CELOs and their affiliated lawyers are no exception.2 As a recent job posting from a
prominent CELO stated, lawyers from this movement are called to “join the fight for family, faith,
and freedom” (Liberty Counsel 2012).
But what do I mean when referring to a “CELO”? This is most easily answered by going
through the components of the term one by one, breaking each component one down and exploring
its meaning in the context of this study. First, what do I mean when identifying a legal group as
“conservative”? Previous studies on the Conservative Legal Movement (CLM) have defined
“conservative” through the constituencies of the modern Republican Party, constituencies including
nationalists, libertarians, and religious conservatives; this is because of how the CLM itself has
organized itself, specifically as a coalition of constituencies (Paik et al. 2007; Southworth 2008;
Teles 2008). In the context of this particular study, then, “conservative” specifically refers to social
conservatism (Paik et al. 2007; Southworth 2008). The goals from this kind of conservatism are,
more often than not, part of the agenda of the Republican Party, making my own categorization
consistent with previous studies on the CLM and its emphasis on constructing a broad coalition of
2
Christian cause lawyers are perhaps better discussed as “purposive lawyers” (den Dulk 2008). This distinction is not
particularly important given the topic and direction of the present study, but it is worth noting nonetheless.
4
legal activists from varying conservative positions. Social conservative policy goals include
restricting, limiting, and potentially forbidding abortion as a legal medical procedure, forbidding
same-sex marriage and opposing civil unions, and fighting for the abilities of Christians to practice
their faith openly in the public square without interference from the government (issues like faith in
school and Christian monuments on public land often appear in this category); including these goals
in a definition of social conservatism is consistent with previous studies (Himmelstein 1983; Wilcox
and Robinson 2011). While limited government and low taxes may be on the agenda of a legal
group, if these goals are identifiably more important than social conservative goals (as determined
from the group’s mission statement), then the group should not be categorized as a CELO.3
Next, what do I mean when identifying a group as “evangelical”? This characteristic is
perhaps the most complicated component of what makes a CELO a CELO. I could have simply
made this study about conservative Christian legal groups, without a nod to differences among
Catholic and Protestant groups. Such categorization would have likely included groups from
various theological traditions, each of them pursuing social conservative policy goals. But previous
studies have suggested that Catholic legal groups and Protestant legal groups conceive of the law
and their legal efforts differently at a fundamental level, particularly at an ideational level (den Dulk
2001). To lump these organizations together in this study therefore seems mistaken, given one of
the main goals of this study is to establish the boundaries and members of the community of
conservative evangelical legal organizations.4
3
To be fair, there is difficulty identifying moderate or liberal evangelical legal organizations. Broader establishment
groups in the evangelical community that tend to lean toward the center or to the left, such as the National Association
of Evangelicals, Sojourners, and Evangelicals for Social Action, have not fielded legal groups to the same degree that
their more politically conservative counterparts have. These groups’ legal efforts have been reactive, limited to filing
amicus curiae briefs in a supportive fashion, while CELOs have been much more proactive in their legal and extralegal
strategies and tactics. Exploring this phenomenon in greater detail would make for an interesting future study.
4
Future research may want to tackle the broader conservative Christian legal community in a comprehensive manner
similar to the present study, but I am confident that the scope of this study is justifiably limited, both for clarify and for
feasibility.
5
But what makes a Christian an evangelical Christian? Evangelical Christians are said to
venerate the Bible, actively encourage others to embrace the faith, and, perhaps most importantly,
emphasize a personal relationship with Jesus Christ (Green et al. 1996). Moreover, evangelicals
tend to take a more activist approach to their faith, particularly when it comes to outreach and social
issues (Lindsay 2006). With this in mind, what, then, constitutes an evangelical organization? One
way to characterize such groups is to identify ties or connections to the evangelical political
community, especially those organizations or communities identifying specifically as evangelical.
For example, the Alliance Defense Fund’s ties to leaders of the evangelical community (with its
foundational ties to James Dobson, Bill Bright, and others) surely characterize this group as a
CELO; the same goes for the American Center for Law and Justice (with its foundational ties to Pat
Robertson). But what about groups without such ties to this broader community? Liberty Counsel
was founded independently of any outside evangelical influence; Jerry Falwell’s connection to LC
came many years after the firm’s 1989 inception. Would LC be an evangelical legal group without
the ties to Falwell and his Liberty University? I argue that it would be, so classifying legal groups
as evangelical ones based solely on connections to the broader evangelical political community
seems problematic, especially when these ties may not, for whatever reason, exist.
I therefore propose to classify a legal group as an evangelical one based not only on the
organization’s affiliation with the broader, explicitly evangelical population, but also on the
organization’s missional and purposive language and issue-framing emphases. Remember, part of
what makes a Christian an evangelical is an activist approach to faith: “one that encourages
proselytizing and claims not only the religious domain of a believer’s life but also other sectors like
family and work” (Lindsay 2006, 212). Put another way, I argue that the way a legal group
discusses and emphasizes issues and goals is just as important as the group’s ties to an evangelical
political group, at least for classifying the group as a CELO. For example, a group’s explicit
6
statement on the importance of America’s Christian heritage or the need to defend traditional family
values is indicative of an evangelical legal group in the CELO context, particularly since this kind
of language is consistent with research on evangelicals more broadly and the issues important to
them (Lienesch 1993; Wilcox and Robinson 2011). Defining a legal group as evangelical based on
its ties to the larger evangelical community, and how the group articulates and emphasizes salient
issues, is the most complete and comprehensive way of identifying a CELO as evangelical.5
Finally, what do I mean when identifying a group as “legal”? This definition is
straightforward, especially relative to the two previous components of “CELO.” Simply put, a
group is a legal one when it is dedicated primarily to litigation activities in pursuit of its interests
and goals. It can certainly engage in extralegal activities, such as raising issue awareness and letter
writing, but litigation must be a key organizational activity in order for a group to be identified as a
CELO. As far as determining whether a group is a legal one, I rely on how the group classifies
itself for tax purposes (using the National Taxonomy of Exempt Entities system) and describes
itself in its mission statement, both internally and with the IRS. For example, the ACLJ has
classified itself as an R60 (“civil liberties”) group with the IRS, while the Family Research Council
(FRC), certainly a conservative evangelical organization, has classified itself as a P01 (“human
services: alliances and advocacy”) organization. Taken together with other factors, the ACLJ is
clearly a CELO while the FRC is clearly not.
5
In fn. 1 of this paper I argue that the Thomas More Law Center deserves to be treated as a CELO. Characterizing
TMLC as a CELO makes sense when reading their mission statement, exploring their actions taken as a legal group, and
considering the assumptions I make of CELOs and their affiliated attorneys. Specifically, similarly to prior research on
lawyers for conservative causes, I do not presume that each lawyer affiliated with a CELO is motivated by the same
goals or factors (even when they are broad enough to include furthering the goals or causes of the conservative
evangelical community). The motivations of these groups and their lawyers, which can be difficult to assess, are not my
primary concern, but rather their actions (Southworth 2008). Thus, while TMLC is a legal advocacy organization with
explicit roots in the Catholic tradition, its work and actions on issues important to conservative evangelical Protestants
(life, the family, freedom to worship, etc), coupled with the language it uses to describe itself, rightly place it in the
realm of other CELOs for the purposes of the present study.
7
It is also worth noting that the final component of CELO, “organization”, indicates that I am
not including in my conception of a CELO individual attorneys with no organizational affiliation or
allegiance. It would be highly unusual for an individual, acting on his or her own accord and on
behalf of no group, to file an amicus brief before the U.S. Supreme Court, given the prohibitive
costs (financial and otherwise) of preparing such a document (Caldeira and Wright 1990).
Therefore, for an organization to warrant discussion as a CELO, it must be precisely that: an
organization.
CELOs lie at the intersection of two prominent communities: the CLM and the Christian
Right (Hacker 2005; den Dulk 2006; Paik et al. 2007; Southworth 2008; Teles 2008). As members
of the CLM, CELOs often find themselves alienated from other groups not belonging to the
evangelical community, such as libertarian lawyers and business lawyers (Heinz et al. 2003;
Southworth 2004; Hatcher 2005; Southworth 2008). The goals of CELOs, being overwhelmingly
focused on social issues, do not always align with the goals of other factions of the CLM. Still,
CELOs do not hesitate to embrace the cause lawyer mentality so prevalent in the CLM, which rose
up as a response to more liberal public interest law firms during the 1960s and 70s (Teles 2008).
Understanding CELOs from this cause lawyer perspective (and the community of politically similar
groups in which they can be found) is crucial in terms of understanding their tactics, strategies, and
behaviors as organizations.
As members of the Christian Right, however, CELOs tend to be rooted in various subgroups
from the conservative evangelical political community, which are in turn influenced by a particular
conservative evangelical leader or coalition of leaders (Green et al. 1996; den Dulk 2006). For
example, three of the more prominent CELOs (the American Center for Law and Justice, Alliance
Defense Fund, and Liberty Counsel) were founded by or have explicit connections to Pat
Robertson, James Dobson, and Jerry Falwell, respectively. Not surprisingly, then, CELOs pursue
8
interests and policies important to this constituency. This includes acting on issues like abortion,
same-sex marriage, and restrictions on religious freedom, all social issues and all issues critically
important to the conservative evangelical community (Guth et al. 1997; Manza and Brooks 1997;
Hillygus and Shields 2009; Brint and Abrutyn 2010).
However, from time to time these groups have come into conflict and disagreement
concerning the best strategies by which to pursue these interests (Guth 1983; Green et al. 2001;
Brown 2002; Hacker 2005).6 One recent example of this conflict and disagreement is seen in the
CELO community’s antiabortion activities. According to James Bopp Jr., general counsel for
National Right to Life (NRL), “There has always been a division between those who want to
concentrate on what will make a difference, and those who are more interested in making a
statement that makes them feel better,” prompting Mathew Staver, founder and chairman of Liberty
Counsel, to say that NRL had “lost its legitimacy” and was “on the wrong side of advancing human
life protections” (Eckholm 2011). This competition provides some of the more interesting areas of
inquiry into the actions and strategies of CELOs, as well as their interactions with one another, the
range of their causes and strategies, and their ties to broader groups within the evangelical political
establishment.7 Exploring the legal arguments in and approaches to religious liberty cases,
however, does provide an interesting perspective on this broader question. Whether or not these
divisions and disagreements have implications for the legal arguments CELOs make is an
interesting question, and ought to be addressed (if only briefly, given the motivation and purpose of
this study).
One caveat: while most organizations filing amicus briefs in this study are CELOs, some
groups I have included do not necessarily fulfill the legal requirement of being a CELO; they are
6
Instances of conflict and disagreement among a collective of legal interest groups are not limited to the CELO
community (see Tushnet 1987).
7
Such questions cannot adequately be addressed in this paper, but they are ripe for exploration in future studies, as I
point out in the concluding section of this paper.
9
certainly conservative evangelical organizations, but they are not primarily legal ones. In other and
future studies on the CELO community these groups would invariably be excluded, since they are
not primarily legal groups and do not concentrate their efforts on shaping their preferred policy
goals through various legal mechanisms. But in the context of this study, which explores the
arguments made by the Christian Right in their amicus briefs in religious liberty cases, including
these groups alongside CELOs makes sense; I am primarily interested in conservative evangelicals’
arguments in religious liberty cases, and not just the arguments made by CELOs.8 Groups like
Focus on the Family, Family Research Council, and Campus Crusade for Christ are not legal
groups, but their views certainly reflect those of the conservative evangelical community. To
exclude such groups would be neglecting key perspectives from the conservative evangelical realm.
Indeed, including them may indeed provide a helpful comparison between the legal arguments
made by CELOs and the legal arguments made by other, non-legal conservative evangelical groups.
Should such groups file as amicus curiae in the cases in this study, their briefs will therefore be
included.9
Methodology
This paper explores the assertion that some CELOs are prone to shy away from making Free
Speech arguments in religion cases, based on the groups’ principled opposition to making such legal
arguments in certain kinds of cases (Brown 2002; Hacker 2005). In order to investigate this I have
chosen to conduct a two-case comparison study of four similar U.S. Supreme Court cases, each one
situated in the general area of religious liberty jurisprudence: Board of Commissioners of Los
Angeles v. Jews for Jesus, Board of Education of Westside Community Schools v. Mergens, Santa
8
However, it is still important to differentiate between CELOs and non-CELOs in order to understand any subtleties (if
any) arising in these groups’ legal arguments. I discuss this further in the discussion section.
9
See attached Appendix for a full list of the CELOs and related organizations included in this study, including a brief
rationale for their inclusion.
10
Fe Independent School District v. Doe, and Locke v. Davey. This study will examine the amicus
briefs filed in the two earlier cases (Jews for Jesus and Mergens) and the briefs filed in the two later
cases (Santa Fe and Davey), checking these briefs against one another and exploring the differences
in how CELOs make legal arguments attempting to support and pursue their interests and goals.
Ultimately, I am interested in determining which of the CELOs filing amicus briefs in these cases
make the Free Speech argument, which groups do not, and whether there is something to be said for
how CELOs and related groups structure their legal arguments in these cases.10 In order to explore
this question I will analyze the language and legal arguments of the briefs in question through close
readings of the briefs themselves.
It is worth noting briefly why I decided to adopt the two-case comparison route in this paper,
as opposed to, say, exploring each case independently from the others. I chose the former approach
for two reasons. First, I can investigate any occurrences of information diffusion from the first to
the second case. That is, I am curious as to whether the arguments made in Case One’s set of cases
(and the overall structure of these arguments) are visibly incorporated into Case Two’s set of cases;
setting up this study as a two-case comparison allows me to do this. Second, I want to look at any
instances of the evolution of CELOs and related organizations, at least in terms of their legal
arguments in religious liberty cases. Put another way, the two-case comparison approach lets me
explore groups’ arguments in similar court cases, and determine whether or not they are consistent
over time and across cases. While it is certainly possible to approach this study in other ways, a
two-case comparison best addresses the two objectives and reasons mentioned above.
10
In order for a group to explicitly make the Free Speech argument, the word “speech” must be present in the brief. By
using words like “expression” or “content” but not the word “speech,” I assume that the CELO is not making the Free
Speech argument. This distinction is made in order to ensure consistency across the cases in question, as well as to
determine a clear, objective criterion for a group making the Free Speech argument. Ultimately, if a group wants to
make the Free Speech argument, they ought to at least reference the Free Speech Clause of the First Amendment.
11
I introduce control into this two-case comparison in that the four court cases are similar on
at least two important levels. First, each of the cases in this analysis is categorized as a religious
liberty case, one in which the religious liberty of a group or individual was a primary legal concern
in their legal brief before the Court. Restricting this study in this way ensures consistency among
the court cases and introduces some level of boundary specification into this study. For example,
none of the four court cases included in this study involved the salient yet unrelated issue of
abortion, but they each involve the question of an individual’s or a group’s ability to practice their
faith in a public forum (specifically, an airport, public schools, or while receiving state-funded
college scholarships). The cases in question, then, are limited in range of content while still unique
in case details.
Second, each court case in this study was argued by Jay Sekulow, chief counsel for the
American Center for Law and Justice, one of the most influential conservative evangelical cause
lawyers over the past 25 years, and one of the architects of making the Free Speech argument in
religious liberty cases.11 Exploring cases in which Sekulow was the lead counsel guarantees that a
forceful Free Speech argument is being made in each of the four cases in my study.12 Given the
purpose of this study, it will be interesting to see which CELOs follow Sekulow’s lead in making
this Free Speech argument, and which groups (if any) do not. Limiting the cases in this way was
done to establish an explicit common element among these cases besides the content of the case,
namely, the identity, argumentation, and style of the lawyer sponsoring the case. In a sense,
11
Even with the Free Speech argument’s presence in the 1980 Supreme Court case Widmar v. Vincent, Sekulow touts
his position as a leader of developing the Free Speech argument, saying, “I came up with this idea of, ‘Let’s argue these
cases as speech cases, not simply a Free Exercise case.’ So when I went to the Supreme Court of the United States, my
entire pitch in [Jews for Jesus] was, ‘This case is about freedom of speech.’ And I barely mentioned religion in the
entire oral argument” (Sekulow 2011). He also has said, “I ran the case on a free speech basis, which was a remarkably
different approach. Usually cases like these were argued on free exercise of religion grounds, but I thought that First
Amendment protections of free speech gave us more to work with” (Buttaro 2009, 63).
12
Sekulow’s endorsement of the Free Speech argument guarantees that the argument has been made in the case,
possibly providing a signal to other CELOs and related groups wanting to put forward the argument in their own amicus
brief.
12
Sekulow’s merits brief for each case occupies a position of centrality among the amicus briefs,
given that each amicus brief is written to urge the Court to adopt the position articulated in the
merits brief.
Given the centrality of Sekulow’s briefs in the responsive amicus briefs, the arguments he
makes should play a role in the arguments of other CELOs filing as amicus curiae; amicus briefs
sometimes introduce new legal arguments to a case, but other times they reinforce arguments made
by one of the parties (Ennis 1984). In the context of this particular study, I am especially interested
in the influence of the Free Speech argument on the content and arguments of the amicus briefs.
Exploring the content of these amicus briefs in the context of Sekulow’s influence should provide
desirable information on the structure and style of each of the amicus briefs (in terms of what
arguments are made), in addition to exploring the role of the filing organization on the overall
appearance of the brief.
I was conscious of the time between the cases I selected for analysis. Jews for Jesus was
decided in 1987 and Mergens in 1990, while Santa Fe was decided in 2000 and Davey in 2004. The
time between the cases in Case One and Case Two is similar (three and four years, respectively),
and the time between the earlier cases and the later cases is 10 years. This should allow adequate
time for the information and arguments made in the earliest cases to be digested by the relevant
legal actors and communities in the later cases, and for these arguments to be diffused among actors
and either incorporated or not incorporated into future arguments.13
Furthermore, it should be explicitly stated that I will be exploring only the amicus briefs
filed by CELOs and related groups and not by other organizations, even if these organizations make
the Free Speech argument in their support of Sekulow’s client. While these groups may provide
13
Of course, other things could be going on during this period that may affect a group’s legal arguments. Nevertheless,
leaving time between each set of cases in this comparison would still capture this; information diffusion is one possible
explanation for a group making the Free Speech argument in later cases, but I do not wish to argue it is the sole
explanation.
13
some interesting observations about the amicus briefs in these cases taken holistically, my concern
in this paper is to explore the amicus briefs filed by CELOs and related organizations in religious
liberty cases; including non-evangelical groups in this analysis makes little sense.
In gathering the data for this paper I utilized two sources. Most of the briefs (in their full
text form) for each court case were obtained via a LexisNexis search. I searched through the parties
filing as amicus curiae to determine whether or not the organization(s) qualified as a CELO or
related group (based on the criteria outlined earlier in this paper), and thus whether that brief
warranted inclusion in this study.14 The earliest case, Jews for Jesus, and its briefs were unavailable
through LexisNexis, so I obtained the pertinent briefs in Jews for Jesus from the Southern Illinois
University Law Library, where there is an extensive collection of materials on microfiche, including
amicus briefs and the briefs filed by the petitioner and respondent in Supreme Court cases. This
process allowed me to be certain that I had gathered all of the pertinent amicus briefs for my given
cases.15 Overall, my search yielded 17 amicus briefs filed by 10 CELOs over the four cases in Case
One and Case Two, bringing the total number of briefs examined in this paper (including Sekulow’s
merits briefs as lead counsel) to 21. With this in mind, I now turn to these cases’ amicus briefs and
explore the legal arguments made by CELOs and related organizations in these religious liberty
cases.
Case One: Jews for Jesus and Mergens
In Case One of this two-case comparison, I explore the amicus curiae briefs filed in the Jews
for Jesus and Mergens cases. First, Jews for Jesus involved a dispute over the rights of a group of
14
I count a CELO as having filed as amicus curiae if the CELO is listed as a party on the brief (if there is more than one
party on the brief, the presence of a CELO warrants the brief’s inclusion), if the counsel of record on the amicus brief is
affiliated with a CELO, or both.
15
Brown (2002) lists the groups filing as amicus curiae in these (and many more) cases, although for my purposes (and
since I needed to obtain the language of the briefs) I found it valuable to manually search. Not surprisingly, the groups
he lists all have briefs appearing in this paper.
14
Christian evangelists to hand out religious literature at a terminal in Los Angeles International
Airport. Sekulow, writing for the respondents, argued that the airport constituted a traditional
public forum and was therefore immune from state regulation of specific kinds of activity. Sekulow
argued that the idea of an airport terminal was historically indistinguishable to other areas where
people tended to congregate, share information, and engage in activities, likening the airport to
“classical city gates” (Sekulow 1986, iii). Importantly, Sekulow argued that the airport’s decision
to not allow this group to distribute literature not only violated their Free Exercise rights, but also
their Free Speech rights. Sekulow argued that the airport commissioners had not made an adequate
justification for the ban on the distribution of religious literature, and this made the ban an
unconstitutional violation of the Free Speech Clause (iv). The Court agreed with Sekulow’s
argument, ruling unanimously for the respondents.
It is not entirely surprising, given that this case is the earliest of Sekulow’s cases in which he
makes the Free Speech argument, that only two CELOs filed amicus briefs in support of the
respondents. The first group to file an amicus brief in this case was the Christian Legal Society
(CLS), which filed with the National Association of Evangelicals.16 CLS first claimed, like
Sekulow, that the airport terminal should be understood as a public forum. As such, banning
specific kinds of expression without proper justification does not relate to the airport’s interest in
keeping the terminal free from disruption (CLS 1986, iii). In later making the Free Speech
argument CLS wrote,
The free and unrestricted communication of religious ideas has, since the days of the
framing of the Constitution, enjoyed the same high and special status as speech of a political
nature, reflecting both our nation’s commitment to individual rights of conscience and the
importance of the pluralism that results from such a commitment and, in turn, helps to
preserve it (16-17).
16
The Center for Law and Religious Freedom (CLRF) is the legal advocacy arm of CLS, and is often engaged in
crafting the legal arguments of CLS in these kinds of briefs. Indeed, CLS is more of a professional association rather
than a legal organization per se; CLRF traditionally fills this role.
15
Furthermore, CLS argued, “The speech involved in this case…is, to borrow the words of the late
Justice Stewart, ‘an exercise of…basic constitutional rights in their most pristine and classic form.’
Amici ask the Court to give this fact due weight” (18). Given the emphasis that CLS placed on the
Free Speech Clause in their brief and the way in which they related religious expression and speech,
it is clear that CLS had no qualms about making the Free Speech argument in supporting the
respondents.
The second group filing an amicus brief in Jews for Jesus was the Rutherford Institute
(RI).17 Their brief, like Sekulow’s brief, emphasized both the status of the airport terminal as a
traditional public forum and the activity of the Christian group as constitutionally protected speech.
Interestingly, whereas Sekulow and CLS began with a discussion of the status of the airport
terminal and then proceeded to discuss the group’s Free Speech claims in light of that status, RI
made the Free Speech Clause the first and foremost component of their amicus brief (RI 1986, i).
RI started their argument strongly, writing, “The overriding issue in this case is, plainly and simply,
how free will speech be in this country” (5). Casting the respondents’ views as unpopular and
therefore most in need of constitutional protection, RI argued, “No government should be the arbiter
of what is desirable or acceptable speech on generally used, open, and readily accessible public
property” (9). By tying the Free Speech argument back to the claim that the airport terminal
constitutes a traditional public form, RI ends up arguing virtually lock-step with CLS and with
Sekulow, despite setting up their brief in a different fashion by placing the Free Speech argument
first in their argumentation structure. Thus, while only two CELOs or related groups filed as
amicus curiae in Jews for Jesus, both of them unequivocally made the Free Speech argument in
their briefs.
17
RI eventually came to distance itself from the Christian Right and the CELOs associated with that contingent. But at
the time this brief was filed, RI was explicitly tied to that conservative evangelical community (Bennett and Grant
2011).
16
Mergens, the second court case of Case One, also dealt with public property and the ability
of Christians to utilize this property. But instead of an airport terminal and evangelists, at issue in
Mergens was whether a group of students could hold a Bible study in a classroom after school
hours. When the district decided that the club would not be permitted to meet, the students, with
Sekulow acting as counsel, argued that denying them the ability to meet violated the recently-passed
Equal Access Act. But in addition to this Sekulow, using language from the famous Tinker v. Des
Moines case, argued, “The high school students…did not ‘shed their constitutional rights to freedom
of speech or expression at the school house gate’” (Sekulow 1988, 11). Commenting on the content
of the students’ speech in desiring to have a Bible study in school after hours, Sekulow stated, “It
was the content of the speech in Tinker to which the school board objected, and, likewise, it is the
content of the students’ speech in the present case, to which School Officials now object” (12). The
Court agreed with Sekulow’s argument and ruled 8-1 for the students.
Five CELOs and related organizations filed amicus briefs on behalf of the respondents,
including the two groups that filed amicus briefs in that case. CLS again made the Free Speech
argument Mergens, urging the Court to rule for the respondents. But CLS presented the arguments
in their brief different from Sekulow. While he began his merits brief with the Free Speech
argument, CLS first argued that the school had established a limited open forum consistent with the
Equal Access Act, adding that upholding the Act in this case would not violate the Establishment
Clause (school officials made this argument in justifying their exclusion of the club). Only then did
CLS make the Free Speech argument, writing, “Even if there were no Equal Access Act, plaintiffs’
club would be entitled to meet under the First Amendment” (CLS 1988, 24). CLS, also invoking
Tinker, proceeded to argue that students should not be understood to be “‘closed-circuit recipients
of only that which the State chooses to communicate’” (27). Although organized slightly
differently than Sekulow’s brief, CLS’s amicus brief supporting the student group’s right to meet
17
after hours in a classroom clearly included the Free Speech argument as a central component of
their legal strategy.
RI also once again made the Free Speech argument in this amicus brief. But unlike Sekulow
(and contrary to their brief in Jews for Jesus), they did not make this their foremost argument.
Instead, RI began with a discussion of why the Equal Access Act did not violate the Establishment
Clause, and then argued that the school district’s policy of “censoring speech” did violate the
Establishment Clause; this was a unique argument relative to other CELOs filing amicus briefs in
this case (RI 1988, i). At this point RI made the Free Speech argument, citing the Widmar decision
as supporting the respondents’ position and writing, “Since the Eighth Circuit concluded that
students in public secondary schools were unlikely to confuse an equal access policy with state
sponsorship of religion, it held that Petitioners’ content-based exclusion of religious speech was
unconstitutional under Widmar” (14). Furthermore, referencing Tinker and Widmar, RI argued that
since the school district had not demonstrated a compelling state interest in banning the student
group from meeting, it follows that the ban on this speech is unconstitutional (20). The Free Speech
argument therefore played an important role in RI’s amicus in support of Sekulow and the students.
Christian Advocates Serving Evangelism (CASE) also filed an amicus brief in Mergens and,
like CLS and RI, made the Free Speech argument a prominent part of their brief. CASE centered its
brief around an argument about the Equal Access Act and how the school district’s test for what
constituted acceptable activity under the Act needed to be determined not by subjective criteria, but
rather by an objective test (CASE 1988, i). According to CASE, set legal precedents “do not allow
a school district to exclude expression based on a subjective intent to avoid a limited forum while
having a policy or practice that opens a limited forum” (ii). Essentially, the school district cannot
subjectively determine what expression to permit during after-school hours in generally available
classrooms. And although no section of their brief is solely focused on the Free Speech argument (a
18
departure from other briefs thus far), a close reading of the brief’s language highlights the emphasis
placed on free speech as central to CASE’s broader supportive argument.18
Two non-CELO (conservative evangelical, but not legal) groups also filed as amicus curiae
in support of the respondent. The first was Campus Crusade for Christ (CCFC).19 CCFS
constructed their amicus brief around the following two arguments: first, that the Equal Access Act
does not violate the Establishment Clause; and second, that the proposed Bible club is student
initiated and therefore consistent with the Equal Access Act (CCFC 1988, i). CCFC does make the
Free Speech argument, albeit in a more subtle way than the other groups to file as amicus curiae.
For example, in discussing the purpose of the Equal Access Act they write, “If school officials had
the right to change the legal character of a group not initiated by their own actions, it would subvert
the students’ rights of free speech, free exercise of religion, and free assembly all in one fell swoop”
(22). Thus, while the Free Speech argument is there, it is not as central of an argument to this brief
as it is in other briefs in Case One.
Concerned Women for America (CWA) was the other, non-CELO Christian group to file as
amicus curiae in this case. Their brief begins by claiming that while public schools are open
forums, even if they were not students would still have the right to free speech as established under
Tinker (CWA 1988, 3). Thus, the Free Speech Clause protects students’ speech rights in schools,
particularly since the event in question (a student-led Bible study) does not lead to dysfunction or
disruption of the school’s operation (8). CWA goes on to argue that respondents also have
protection under the Free Exercise Clause of the First Amendment, while then claiming that using
the Establishment Clause to “justify the mistreatment of religious people” must be rejected (13).
The Free Speech argument, though, is central to the argumentation strategy of CWA on behalf of
18
Beyond this, their brief actually begins with, “This case presents important issues concerning the freedom of speech
for all Americans” (i).
19
Bill Bright founded CCFC, and later played an instrumental role in founding Alliance Defense Fund, a prominent
CELO.
19
the respondents, just as it was in the briefs of other organizations filing as amicus curiae in
Mergens.
In Case One we can see the Free Speech argument clearly made in each of the briefs filed in
support of Sekulow’s clients. In Jews for Jesus, both CELOs filing as amicus curiae unequivocally
make the Free Speech argument in defending the rights of evangelists to distribute literature at an
airport terminal. RI made the Free Speech argument the first and foremost component of their
amicus brief20, while CLS (and Sekulow, in his brief as counsel for the respondent) opted to make
the argument in a secondary yet still forceful manner. In Mergens, on the other hand, we saw less
cohesion in the fashion and frequency of CELOs and related groups making the Free Speech
argument. While each organization made the Free Speech argument in their amicus briefs, there
was not a unified approach in terms of the strength and audacity of the Free Speech argument.
CWA and RI made strong Free Speech arguments in these court cases, while CASE and CCFC do
forward this argument but do so in a more subtle fashion. This finding is instructive in terms of
understanding the legal argumentation strategies not as a yes/no dichotomy, but rather more as a
nuanced proposition. Whether or not this observation holds for the briefs filed in Case Two remains
to be seen.
Case Two: Santa Fe and Davey
Having explored and described the amicus briefs filed in the two cases of Case One, I now
turn to the briefs filed in the Santa Fe and Davey cases, which comprise Case Two of this two-case
comparison. Even though these cases are more recent (the Santa Fe case taking place a full decade
after the Mergens case), it is interesting to note that the amicus participation levels from CELOs
remained relatively consistent to the first set of cases, with 10 amicus briefs being filed in Case Two
20
This is perhaps a nod to their organizational mission, which places the freedom of speech as one of the foremost
rights the group seeks to defend through litigation and related activities (see https://www.rutherford.org/issues/).
20
compared to seven briefs being filed in Case One. While amicus participation did grow slightly in
this second set of cases, this growth is not unexpected given the rise in number of CELOs during the
1990s, in response to growth in both the CLM and the Christian Right (Brown 2002; Hacker 2005;
den Dulk 2006).
The first case in Case Two, Santa Fe, involved student-led prayer at a high school football
game. After two students sued, saying that prayers violated the Establishment Clause, Sekulow
came to represent the school district in court, defending its pre-football game prayer policy. Upon
reaching the Supreme Court, Sekulow argued that the policy of allowing student-led prayer at a
voluntary school activity did not violate the Establishment Clause, but more than that, striking down
the policy “would be to interpret the Establishment Clause as imposing an affirmative obligation on
the states to censor religious speech where other speech is allowed” (Sekulow 1999, 44). Sekulow
continued, “If a governmental agency allows a private speaker to offer a secular message of
inspiration, it must allow the speaker to take a religious perspective as well” (46). The Free Speech
argument is clearly in play in this line of argumentation, but the Court was not persuaded, ruling 6-3
against the school district.
CLS filed an amicus brief in this case, supporting the petitioners and, like Sekulow, making
the Free Speech argument in the process. At a fundamental level, CLS argued, “The distinction
between state action advancing religion and private action advancing religion is critical to the
protection of religious liberty” (CLS 1999, ii). The speech of the students in the form of prayer is
private speech, argued CLS, and thus should not be subject to censorship by the state. Referencing
the Court’s majority opinion in Rosenberger v. University of Virginia, CLS stated that “there is no
violation in [the State's] honoring its duties under the Free Speech Clause” (13). Thus, CLS argued
that the Free Speech Clause protects the religious speech (prayer) of students prior to a schoolsponsored event.
21
Like CLS, RI also filed an amicus brief in support of the petitioners in Santa Fe. RI began
with arguing that the school district's policy did not violate the Establishment Clause, since the
speech at issue was private speech made by students and was not endorsed by school officials (RI
1999, v). With that foundation laid, RI argued that the policy is a “permissible accommodation of
the students' right of free speech” (vi). Comparing the pre-game prayer to a graduation speech by
an exemplary student, RI argued, “Any student who chooses to recite a prayer on his or her own
initiative may assert his right to freedom of speech under the First Amendment” (13). Finally,
embracing Tinker and the “tolerance” in that case, RI concluded, “This tolerance for student speech
should also apply to religious expression or at Santa Fe's graduation ceremonies and football
games” (16). The Free Speech argument is clearly at play in RI's amicus brief.
Another group to file an amicus brief on behalf of the petitioners was Liberty Counsel (LC).
And like the previous two CELOs in this case, LC made the Free Speech argument in support of the
petitioners. Their rendition of the Free Speech argument was much more forceful than the other
CELOs, as they began their brief by writing, “Censoring student-initiated, student-led speech at
high school sporting events violates the Free Speech Clause” (LC 1999, i). They asserted “students
on public school campuses retain their rights as private citizens when they enter school property.
One of these rights is the right to freedom of speech” (5). In making this argument, LC became yet
another CELO to reference the Tinker case in defense of the respondents in Santa Fe. Only after
presenting the Free Speech argument did they address concerns about violations of the
Establishment Clause (they dismissed these concerns as unfounded), seemingly treating the Free
Speech argument as more central to their filing strategy.
The National Legal Foundation (NLF) also filed as amicus curiae in this case on behalf of
several members of Congress and WallBuilders, a Christian historical society dedicated to
promoting the country’s Judeo-Christian heritage. NLF began by discussing the Establishment
22
Clause’s relevance to this case, specifically arguing against a broad and overarching test in these
kinds of cases because such tests are “driven by an impermissible hostility towards religion” (NLF
1999, 2). Specifically, the Lemon test cannot be reasonably applied “to the wide diversity of
Establishment Clause cases the courts have had to deal with” (6). NLF then discussed this case in
the context of Lee v. Weisman, arguing that football games do not have the same meaning as a high
school graduation and therefore do not demand a captive audience, which was the key in Lee. In
the context of this argument, NLF wrote, “If…the students decided to have a speaker, and if in fact,
the speaker decides on his or her own initiative to include a religious sentiment, that is protected
speech” (18). Thus, while the Free Speech argument was not as central to NLF’s brief as either its
discussion of Establishment Clause jurisprudence or its disagreement over the appellate court’s new
doctrinal test, the argument is nonetheless present, albeit in a more nuanced, less forceful fashion
than in other CELOs’ amicus briefs.
Another CELO to file an amicus brief in Santa Fe was the Liberty Legal Institute (LLI).21
LLI made the Free Speech argument in this case on behalf of the petitioners, citing the Court’s own
language in Mergens when writing, “[T]here is a crucial difference between government speech
endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion,
which the Free Speech and Free Exercise Clauses protect” (LLI 1999, 7). They argued that since
there are a number of private choices leading to the content (religious or not) of the student speaker,
the argument that the school district’s policy is in violation of the Establishment Clause is
misguided (10-11). Like most of the CELOs filing as amicus curiae in Santa Fe, LLI made the Free
Speech Clause a key component of their amicus brief in supporting what can be described as a
religious liberty activity: offering a prayer prior to a school’s football game.
21
LLI was formerly the legal arm of a broader interest group, the Free Market Foundation. In 2009, these two
organizations were brought under one name, the Liberty Institute, with this group focusing on both legislative and legal
advocacy.
23
One non-CELO organization filed as amicus supportive of the petitioner: the Minnesota
Family Council (MFC), under the auspices of their own Northstar Legal Center (NLC).22 The NLC
made the Free Speech argument a central tenet of their brief, beginning by arguing that the school
district had created a limited forum with its policy on speakers at football games. To bar a student’s
pregame speech on the grounds of the speech’s religious content, according to NLC, would violate
the rights of the student contained in the Free Speech Clause; the center cites the Widmar case and
Tinker as supportive of this conclusion (NLC 1999, 4-8). In a related sense, NLC argues that there
was no Establishment Clause violation in the school district’s policy allowing for a private student’s
speech (religious in content or not), because the policy “fulfilled the school district’s duties under
the Freedom of Speech Clause” (13). Thus, NLC, like every other CELO and related group filing
as amicus curiae in Sante Fe, made the Free Speech argument central to their argumentation
strategy.
The second court case of Case Two, Davey, dealt with state scholarships and whether they
could be applied to a student studying what Chief Justice Rehnquist described, in the Court’s
majority opinion, as “vocational theology.” The state of Washington told Joshua Davey that he
could not use his need-based state scholarship to pursue a major in pastoral ministries, at which
point he sued the State of Washington and its governor, Gary Locke. Sekulow represented Davey,
arguing in his brief that besides violating the Free Exercise Clause, forbidding Davey to use his
scholarship to study pastoral ministries also violated the Free Speech Clause (Sekulow 2002, ii).
Sekulow wrote, “The state takes issue only with the religious viewpoint of such study,” arguing that
the state forbidding Davey to use his scholarship to study pastoral ministries amounted to
unconstitutional content-discrimination of Davey’s speech (33). The Court was not convinced with
Sekulow’s argument, ruling 7-2 against Joshua Davey.
22
The NLC is a component of the MFC but, much like how CWA has a legal studies institute but is not a CELO, this
alone does not classify the NLC as a CELO.
24
Four CELOs filed as amicus curiae in support of Sekulow’s client in Davey. The first group
to do so was CLS, which, unsurprisingly given their track record as amicus curiae in these kinds of
cases, made the Free Speech argument to support the respondent (CLS 2002, i). CLS argued, “In
the terms of free speech doctrine, the Washington exclusion is a classic instance of discrimination
by viewpoint” (6). Based on the state’s willingness to allow study of religion from a non-devotional
perspective, CLS argued, “It could scarcely be clearer that the state discriminates between different
viewpoints concerning the same subject matter” (7). The Free Speech Clause is plainly part of
CLS’s argument in Davey, as it was in each of the other three cases in this study in which CLS filed
as amicus curiae.
Another group to file as amicus curiae in this case was LC. They focused their amicus brief
on the argument that denying Davey his scholarship violated both the Free Exercise Clause and the
Establishment Clause (LC 2002, i). However, despite LC’s self-description as a group dedicated to
providing “education and legal representation regarding the Free Speech, Free Exercise, and
Establishment Clauses of the First Amendment” (1), the Free Speech argument did not make an
appearance in this brief as it did in LC’s brief in Santa Fe. In fact, the only times the word “speech”
appears in their brief at all is in the section stating the interests of LC as a friend of the court in this
case.
The NLF was another CELO to file an amicus brief in Davey. Like LC, NLF did not make
the Free Speech argument here, crafting their argument for Davey entirely around the Free Exercise
Clause (NLF 2002, i). NLF wrote their brief from a primarily historical perspective, focusing on
“Virginia’s battle over religious liberty” and on Justice Joseph Story’s understanding of the Free
Exercise Clause as one which allowed the government to encourage religion (i).23 This historical
23
This is not entirely surprising given that David Barton, a figure prominent among conservative evangelicals for his
historical understanding and depiction of the American founding, is a member of the board of NLF.
25
approach to defending Sekulow’s position did not leave room for NLF to make the Free Speech
argument, as they did in their brief supporting the petitioners in Santa Fe.
Finally, the Thomas More Law Center (TMLC) also filed an amicus brief for Sekulow on
behalf of another student (identified as “Teresa”), who was involved in a similar legal dispute to
Joshua Davey. In this brief, the Free Speech argument is clearly present. Describing Teresa’s
interests in the Davey outcome, TMLC wrote, “[Teresa] believes that both she and Joshua Davey
have been subject to invidious discrimination that plainly violates their right to the Free Exercise of
Religion, Free Speech, and Equal Protection” (TMLC 2002, 3). Furthermore, TMLC argued the
state policy constituted an “illicit quid quo pro” that required Davey to surrender his rights to Free
Speech (among others) in order to keep his scholarship (11). Despite not dedicating a specific
section of their brief to the Free Speech Clause (as other CELOs in this case had done), the Free
Speech argument is present throughout TMLC’s amicus brief in Davey.
Case Two, unlike Case One, gives us examples of CELOs not making the Free Speech
argument in spite of its presence in the merits brief filed by Sekulow (both of them occurring in
Davey). But like the briefs in Case One, Case Two’s briefs which made the Free Speech argument
were not in total agreement with one another in terms of the intensity and placement of the
argument in the structure of the brief itself. LC, filing in Santa Fe, unequivocally makes the Free
Speech argument a central component to its amicus brief, while NLF’s brief in Santa Fe made the
argument secondary to other doctrinal concerns. And while both CELOs making the Free Speech
argument in Davey placed this argument at the center of their amicus briefs, two other CELOs did
not include this argument at all. This suggests that, as was the case in Case One, that CELOs and
related organizations filing in Case Two held the Free Speech argument in varying degrees of
regard, or at the very least differed over the proper emphasis on the Free Speech argument in their
amicus briefs. Thus, while most CELOs and related groups filing in Case Two understood faith to
26
equal free speech in these two court cases, the cohesiveness of this understanding was clearly not
unanimous among these Christian Right groups.
Discussion
Through this two-case comparison I found support for the contention that not every CELO
and related organization filing as amicus curiae in these two sets of cases made the Free Speech
argument, despite the fact that Sekulow, the constant litigating attorney, put forward the argument
in each case. This suggests that not all CELOs view the Free Speech argument as in the best longterm interest of their group’s (and the broader conservative evangelical community’s) pursuit of
cultural and policy goals (Brown 2002; Hacker 2005). At the very least, not every group felt that
the Free Speech argument was in the best legal interest of the case, even when Sekulow and other
groups believed it was. But beyond this, I found that the Free Speech argument was not made with
the same vigor across the sample of groups making the argument, suggesting that CELOs and
related groups are not monolithic in their understanding of the best way to structure legal arguments
in cases important to their constituencies and communities. Put simply, the question of whether
faith equals free speech is not a yes/no dichotomy. This is consistent with the idea of similar legal
interest groups having similar goals, but sometimes disagreeing on the best methods and strategies
by which to pursue them (Tushnet 1987). It is also potentially indicative of divisions or even
rivalries among CELOs, as will be discussed briefly.
This exploration has yielded some interesting findings concerning the CELOs involved in
filing these briefs. The only group to file an amicus brief in each of the four cases in this two-case
comparison was CLS, and in each of the four cases CLS made the Free Speech argument to support
Sekulow’s position; CLS was apparently very comfortable making the Free Speech argument in
these kinds of religion cases. Additionally, RI filed briefs in the first three cases, and each time
27
made the Free Speech argument. RI and CLS were the only CELOs present in both cases of this
comparison (that is, both Case One and Case Two), and when combining Case One and Case Two
they were a combined seven-for-seven in making the Free Speech argument.
There were five CELOs or related organizations to file as amicus curiae in the first set of
cases, filing a total of seven amicus briefs over the two court cases. Each of these groups made
some rendition of the Free Speech argument in these cases, although, as stated earlier, the strength
and centrality of the Free Speech Clause to these groups’ amicus arguments was not homogenous.
From a strictly dichotomous perspective, though, each group did make the Free Speech argument
along with Sekulow. Case Two’s story, meanwhile, is somewhat more complicated. A total of
seven CELOs filed 10 amicus briefs in support of Sekulow’s brief, with two of these groups (LC
and NLF) filing conflicting briefs among the two court cases; that is, making the Free Speech
argument in one case but not making it in another. And like in Case One, of those briefs containing
versions of the Free Speech argument, not all of them made the argument with the same tenacity or
enthusiasm.
Therefore, while 100% of CELOs and related groups made the Free Speech argument in
Case One and 80% of them made the argument in Case Two, to leave it at that would be to miss
much of the story. Indeed, while previous studies were correct in claiming that not every CELO
would make the Free Speech argument in religious liberty cases due to principled opposition or
some other rationale (Brown 2002; Hacker 2005), this research essentially ignored the variation in
how the groups making the Free Speech argument actually made it. The present study, through a
close reading of CELOs’ amicus briefs in two sets of related cases, highlights this variation and, in
doing so, adds a layer of nuance to existing conversations in research on Christian Right legal
mobilization. Furthermore, discovering this variation in emphases on the Free Speech arguments of
various CELOs speaks to the uniqueness of these groups, supporting an argument against a
28
monolithic conception of Christian Right legal mobilization and the individuality of each
organization within the movement.
Comparing Case One and Case Two provides additional insight into the amicus briefs filed
in these four court cases. At a basic level, both sets of briefs respond to and articulate the Free
Speech argument made by Sekulow, although the briefs in Case Two appear to be influenced more
by the Free Speech argument than the briefs in Case One, at least in terms of numbers. This is
likely due, at least in part, to the increasing number of CELOs being founded during the 1990s.
More importantly, given that there were other cases in the 10 years between Mergens and Santa Fe
in which Sekulow made the Free Speech argument (although not explicitly religious liberty cases),
CELOs may have become more aware of and confident in that argument when drafting their amicus
briefs. This latter account could explain why each CELO’s brief in Santa Fe contained the Free
Speech argument and why only half of the briefs in Davey contained the argument: Sekulow had
success with the Free Speech argument prior to Santa Fe, but the Court was not persuaded by the
argument in Santa Fe, hence the drop in usage of the argument in the briefs filed in Davey.
Essentially, the two CELOs not making the Free Speech argument in Davey may have seen the
result of Santa Fe as a sign to change their argumentation strategy, despite the fact that Sekulow
and other CELOs stuck with the argument. Such an explanation for a drop-off in usage of the Free
Speech argument cannot be supported given the purpose of this study, but it is suggestive
nonetheless and introduces an interesting question to investigate at a later date.
Ultimately, a comparison of Case One and Case Two shows that more CELOs adopted the
use of the Free Speech argument in their amicus briefs in the later set of cases, which is likely a
function of the Free Speech argument’s success and the proliferation of CELOs in the final decade
of the twentieth century. A more nuanced examination of the briefs in Case One and Case Two,
however, show variations in how each CELO and related group crafted and presented their rendition
29
of the Free Speech argument in their amicus briefs. The organization and framing of documents can
be understood to be just as important as (indeed, part of) the document’s content and overall
intended message (Ginger 2006). Thus, the organization of an amicus brief can be telling,
especially when comparing two briefs making the Free Speech argument in these court cases.
For example, consider two briefs from Case One, both of which make the Free Speech
argument. CLS structured its brief in Mergens fairly similarly to Sekulow’s brief, while RI, making
most of the same arguments as Sekulow and CLS in Mergens, chose to place the Free Speech
argument at the beginning of its brief instead of towards the center (as Sekulow and CLS did). The
fact that RI highlighted the Free Speech argument indicates that it might have valued the argument
more than other CELOs filing as amicus curiae, perhaps even more than Sekulow. At the very
least, RI’s placement of the Free Speech argument as the foremost component of their brief suggests
that the organization felt very strongly about the argument’s role in their broader argumentation
strategy. The organization of a CELO’s amicus brief, then, could be suggestive of what priorities or
values a group holds in particularly high esteem.24
On a related note, some briefs in both Case One and Case Two are more explicit in their
rendition of the Free Speech argument, while other briefs, though still making the argument, are not
as forceful; this is arguably one of this study’s more interesting findings. Heterogeneity in making
the Free Speech argument is evident, specifically in examining both the language and the emphasis
in the briefs themselves. For example, in Case One we see RI and CWA making forceful versions
of the Free Speech argument, while CASE and CCFC, although making the argument, did not make
it as central to their briefs as other groups. Likewise, in Case Two we see CLS and LC making
vigorous renditions of the Free Speech, with NLF and TMLC making the argument, albeit in a less
24
RI would certainly fit with this explanation, as a reading of the group’s mission statement and summary of
emphasized issues makes clear.
30
forceful fashion.25 Just as there are clear differences in CELOs and related groups making or not
making the Free Speech argument in these cases, there are distinctions between groups strongly
making the Free Speech argument and those making it rather casually.26 Ultimately, framing and
organization adds a more complex layer to the study of the amicus activity in these sets of cases
beyond simply exploring which CELOs and related groups made the Free Speech argument, and
which did not.
In addition to discovering the varying ways CELOs make their amicus arguments in
religious liberty cases (particularly, whether and how they adopt the Free Speech argument), this
two-case comparison of four similar Supreme Court also sheds light on important observations and
findings about the CELO community as a whole, specifically, the structure and nature of this
influential legal community. This is a beneficial side effect of this project for multiple reasons, but
especially because the CELO community is an identifiable constituency of the Conservative Legal
Movement (CLM), an influential movement of legal actors in the American context (Southworth
2005; Hatcher 2005; Southworth 2008; Teles 2008), and because the CELO community includes
groups with impressive financial credentials (for example, the ACLJ’s annual budget regularly
approaches $40 million) and reaches an influential constituency of American society. Given that
legal mobilization and related actions are effective mechanisms for pursuing rights claims and
broader social change in the American political system (Scheingold 1974; Zemans 1983; McCann
1994), research into CELOs going beyond their legal arguments in religious liberty cases is a
worthy scholarly endeavor, particularly in terms of discovering distinctions and divisions among
this community of legal organizations.
25
When writing this section it occurred to me that there ought to be some kind of scale to capture the strength of the
Free Speech argument in these cases. Pertinent factors in creating such a scale might include: placement of the
argument in the brief; percentage of the brief dedicated to the argument; and other, non-Free Speech doctrinal issues
referenced in the brief. Such a scale could not be developed for this paper, but in future work on this topic (and on the
CELO community more broadly) it may prove useful to develop this kind of mechanism.
26
Such variation in the intensity of this argument could provide useful insight into the priorities of the filing CELO,
which may then contribute to an enriched understanding of the CELO community more generally.
31
As stated, this study tells us several things about the CELO community other than their legal
argumentation strategies in these four court cases. I will briefly touch on two. First, by merely
looking at the number of groups to file as amicus curiae in both Case One and Case Two, we see an
uptick in the number of CELOs in existence. If we limit this study to CELOs and not evangelical
groups doing occasional legal work, three filed briefs in Case One compared to six in Case Two.
The list of amicus curiae in these cases does not even include two influential CELOs, the ACLJ
(which Sekulow heads) and the Alliance Defense Fund (which tends not to file amicus briefs as part
of its legal strategies). As suggested by other research (Brown 2002; den Dulk 2006), a spike in
Christian Right political activism encouraged the increase in Christian Right legal mobilization, a
development which can be seen in the increase of CELO participation from Case One to Case Two.
Second, variations in these briefs’ legal arguments (even among those making the Free
Speech argument) is further evidence of divisions or and even rivalries among CELOs inhabiting
the sphere of conservative Christian politics in the United States; simply put, CELOs are not one
group with multiple names. Examples of such divisions abound. At a broad level, some of the
more successful CELOs emerged from various wings of the Christian Right, from the ACLJ’s ties
to Pat Robertson of the Christian Coalition to LC’s associations with Jerry Falwell of the Moral
Majority. And despite sharing many of the same goals in terms of policy, there was a clear rivalry
between Robertson and Falwell, just as there are among CELOs today.27 We see these divisions in
the lack of CELO cooperation relative to the amount of legal work they do, as well as in outright
disagreement over appropriate legal methods in salient cases.
Consider the recent case of Proposition 8, the California amendment prohibiting same-sex
marriage, and the resulting public schism between two prominent CELOs: ADF and LC. After its
27
Put simply, Falwell believed that Robertson’s Pentecostalism was not a genuine manifestation of Christ, while
Robertson believed that Falwell was not receptive to the work of the Holy Spirit. Because of this, there was no love lost
between these two icons of the Christian Right.
32
passage by a majority of voters Prop. 8 was challenged in federal court, with ADF representing the
amendment’s supporters. LC attempted to intervene in support of the amendment on behalf of
another group, but ADF refused LC’s assistance. In a pretrial hearing ADF argued that since LC
did not initially support Prop. 8 (LC and its represented group desired a more comprehensive
amendment barring all same-sex unions, not just marriage), LC should not be able to fight to defend
Prop. 8 in court. Meanwhile, LC argued that it would take a more comprehensive legal strategy in
defense of Prop. 8, suggesting that ADF’s approach was too accommodationist to same-sex couples
(Wildermuth 2008). LC was denied the ability to intervene, and after Prop. 8 was struck down in
federal district court LC leveled a scathing critique of ADF’s handling of the case (Liberty Counsel
2010).28 While ADF and LC may share the same broader policy goals concerning same-sex
marriage, one group (ADF) is more willing to take a pragmatic approach in its litigation strategies,
while the other (LC) adopts a more principled approach in its actions (Hacker 2005). And while the
division between these two CELOs is more obvious in this instance, varying approaches to filing
amicus briefs and making (or not making) the Free Speech argument is yet another area of potential
disagreement among CELOs, suggesting that while these groups may indeed by unified in most
causes or goals, they are not unified in their pursuit.
Conclusion
This study has only scratched the surface of CELOs’ and related groups’ amicus curiae
filing strategies in Supreme Court cases. But this scratch is an important one, having explored and
described the various legal arguments CELOs made in two sets of similar cases. I have found that
the amicus briefs of CELOs, at least in religious liberty cases, have grown numerically (albeit
28
I initially thought that the brewing feud between LC and ADF could explain why LC made the Free Speech argument
in Santa Fe but not in Davey (ADF chief counsel Alan Sears was co-counsel in the latter case). But I determined I
could not adequately make this argument without more investigation, likely involving interviewing the relevant parties.
33
slightly) between Case One and Case Two, likely a result of the increasing number of CELOs
during the 1990s and the conservative evangelical political community’s realization that legal
victories could aid in the advancement of their broader policy goals (Brown 2002; Hacker 2005; den
Dulk 2006; Wilcox and Robinson 2011). Importantly, this study has also provided support to the
contention that not all CELOs adopt the Free Speech argument into their own legal strategizing in
cases involving religious liberty and similar issues; previous studies have discussed potential
explanations for this (Brown 2002; Hacker 2005). For some CELOs and related organizations, faith
does not amount to free speech.
Moreover, for those groups who do see the religious liberty issues in these cases as free
speech issues, there is not unanimity in how they make their amicus curiae arguments, particularly
in terms of the strength of the Free Speech argument. But perhaps most importantly, exploring the
language, framing, and organization of amicus briefs in this two-case comparison has shed light on
the broader CELO community, in terms of how specific groups make their legal arguments and, in a
related sense, how these groups conduct their legal efforts in salient, important cases. In terms of
approaching a better understanding of a key constituency of the CLM and an influential community
within the broader Christian Right, this study represents a good (if small) first step.
There remains, however, a good deal of work to be done. In terms of exploring the amicus
arguments of CELOs and related organizations, one reasonable way to proceed would be to expand
the sample of eligible cases in which the Free Speech argument could possibly be made and conduct
a similar exploration in these cases as undertaken in this study. In a related sense, future research
could more systematically explore the use of case citations and precedents in these groups’ briefs,
and determine whether these organizations are drawing from the same sample of cases in order to
bolster their legal arguments. Such a study could be set up in a similar fashion to other studies on
networks in the legal/doctrinal realm (Fowler et al. 2007). Additionally, further studies could
34
explore the structure and content of CELOs’ legal briefs and the extent to which these briefs are
crafted to appeal to specific Supreme Court justices; the presiding judge in Kitzmiller v. Dover
suspected a CELO was doing just that in that case (Pierce 2009). Finally, a limitation of this paper
is that while the briefs explored emanate from four similar cases on religious liberty, the cases
themselves are not identical in terms of details. Even though Sekulow felt confident making a
strong Free Speech argument in each of these cases, other CELOs may have simply seen the cases
in a different light, which may have influenced some groups’ reticence in making a forceful Free
Speech argument along with Sekulow. Further research into specific case details may provide
valuable insight into the wisdom of comparing these four cases.
This study is a reasonable first step towards a clearer understanding of the CELO
community, both broadly and in terms of how these organizations construct their legal arguments in
the context of other actors and a central group/figure at the helm of a particular series of cases.
Additionally, this two-case comparison provides interesting avenues for future research on the use
of the Free Speech argument among CELOs filing amicus curiae briefs, as well as on how CELOs
argue cases before the Supreme Court more generally. In general, though, this study supports the
contention found in previous research, that while CELOs and related groups do make their faith a
central component of their causes, efforts, and strategies, they do not always characterize it as free
speech when doing battle in the legal arena.
35
Appendix – List of CELOs and Related Organizations in this Study
Organization
American Center for Law
and Justice (ACLJ)*
Campus Crusade for Christ
(CCFC)
Christian Advocates Serving
Evangelism (CASE)**
Christian Legal Society
(CLS) and its Center for Law
and Religious Freedom
(CLRF)
Concerned Women for
America (CWA)
Mission Statement (website)
“The ACLJ and its worldwide
affiliates engage in litigation,
provide legal services, render
advice to individuals and
governmental agencies, as well as
counsel clients on global freedom
and liberty issues. They also
support training law students
from around the world in order to
protect religious liberty and
safeguard human rights and
dignity.”
“Helping to fulfill the Great
Commission in the power of the
Holy Spirit by winning people to
faith in Jesus Christ, building
them in their faith and sending
them to win and build others; and
helping the Body of Christ do
evangelism and discipleship.”
“The Center is specifically
dedicated to the ideal that
religious freedom and freedom of
speech are inalienable, God-given
rights. The Center’s purpose is to
educate, promulgate, conciliate
and where necessary, litigate, to
ensure that those rights are
protected under the law.”
“America’s oldest Christian
advocacy ministry for religious
freedom, the Center for Law and
Religious Freedom argues high
impact cases and advises
Congress on vital legislation to
protect religious freedom. We are
blessed to serve as America's
RELIGIOUS LIBERTY
ADVOCATES®.”
“The mission of CWA is to
protect and promote Biblical
values among all citizens - first
through prayer, then education,
and finally by influencing our
36
NTEE Code
R60 – “Civil
Liberties”
CELO?
Yes
O55 – “Youth
Development Religious
Leadership”
No
R60 – “Civil
Liberties”
Yes
X99 –
“ReligionRelated N.E.C.”
Yes
W01 – “Public
and Societal
Benefit:
Alliances and
Advocacy”
No
Liberty Counsel (LC)
Liberty Legal Institute
(LLI)***
National Legal Foundation
(NLF)
Minnesota Family Council
(MFC) and its Northstar
Legal Center (NLC)
Rutherford Institute (RI)
society - thereby reversing the
decline in moral values in our
nation.”
“Liberty Counsel is an
international nonprofit litigation,
education, and policy
organization dedicated to
advancing religious freedom, the
sanctity of life, and the family
since 1989, by providing pro
bono assistance and
representation on these and
related topics.”
“Guided by principles that limit
government and promote JudeoChristian values, Liberty Institute
was founded in 1972 to protect
freedoms and strengthen families
by impacting the legislature,
media, grassroots, and the courts
with the truth. Specifically,
Liberty Institute works to
educate, advocate, and, when
necessary, litigate for freedoms
guaranteed by the Constitution
including Freedom of Speech,
Religious Freedom, Parental
rights, Student's Rights, and
Responsible and limited
Government.”
“The mission of the National
Legal Foundation is to prayerfully
create and implement innovative
strategies that, through decisive
action, will cause America's
public policy and legal system to
support and facilitate God's
purpose for her.”
“Our mission is to strengthen the
families of Minnesota by
advancing biblical principles in
the public arena.”
“The Institute’s mission is
twofold: to provide legal services
in the defense of religious and
civil liberties and to educate the
public on important issues
37
I80 – “Legal
Services”
Yes
R40 – “Voter
Education and
Registration”
Maybe
I83 – “Public
Interest Law”
Yes
P99 – “Human
Services
N.E.C.”
No
R63 –
“Censorship,
Freedom of
Speech &
Press”
Yes#
Thomas More Law Center
(TMLC)
affecting their constitutional
freedoms.”
“The Thomas More Law Center
is a not-for-profit public interest
law firm dedicated to the defense
and promotion of the religious
freedom of Christians, timehonored family values, and the
sanctity of human life. It
supports a strong national defense
and an independent and sovereign
United States of America.”
P20 – “Human
Service
Organizations”
Yes
* - The ACLJ did not appear as an amicus curiae in either Case One or Case Two, but Sekulow, lead counsel in each of
these cases, acts as chief counsel for the group.
** - Mission statement taken from IRS document, as CASE has no official website. In fact, CASE and ACLJ are very
closely related (with ACLJ describing itself as a d/b/a of CASE), so to say they are a separate entity (and therefore a
separate CELO) is somewhat debatable.
*** - Since renamed Liberty Institute.
# - At the times of filing in these cases, RI was clearly a CELO; its present stances on issues like abortion and same-sex
marriage, however, make RI harder to classify relative to other CELOs.
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Christian Advocates Serving Evangelism. 25 October 1989. “Brief Amicus Curiae of Christian
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of Respondent.” Locke v. Davey.
41
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Support of Respondent.” Locke v. Davey.
42