The religious right goes to court.
Started just three years ago, the ACLJ is the loudest of the Christian-right legal firms prepared to take evangelicals' political battles to court. Specializing in high-profile, precedent-setting cases, the ACLJ has already scored several major victories: a Supreme Court ruling that an anti-discrimination law may not be used to sue abortion-clinic blockaders in federal court; another Supreme Court ruling that public schools must provide church groups with "equal access" to after-school campus facilities; and a Fifth U.S. Circuit Court of Appeals ruling allowing student-led prayers at high-school graduations.
In what more satisfying venue could the ACLJ and its clients now find themselves prevailing than in the courtroom? It was the 1924 trial of John Scopes - the Tennessee school-teacher who had violated that state's ban on teaching Darwinism - that made a national laughing-stock of intellectually backward fundamentalists and left them seeming politically irrelevant for decades to follow. But with the mobilization of the Christian right in the 1970s and 1980s came a burgeoning need for a sophisticated legal operation, especially as the evangelicals' worldly activities seemed destined to land many of them in legal trouble of one sort or another.
Among the first of the Christian-right law firms - and much less visible than Robertson's American Center for Law and Justice - was the Rutherford Institute, founded in 1982 by attorney John Whitehead. For years, Rutherford was the pioneer of Christian legal firms, specializing in a gamut of First Amendment-related cases: everything from protection of workers against religious discrimination to anti-abortionists' right to picket, "parents' rights" to home schooling and disciplining their children, and "free-speech" rights for public-school teachers and students who expressed their religious views openly.
Rutherford takes on cases that would strengthen the public role of conservative Christians, sometimes on civil-liberties principles that defy typical left/night ideological categories. Months before the persecution of Chamula Indians in Chiapas, Mexico, made national headlines, for example, the Rutherford Institute petitioned the Mexican government to redress land seizures and other violations of indigenous Protestants' rights by the dominant Catholic church. More controversially, Rutherford currently represents the Reverend Eugene Lumpkin in a suit against the mayor of San Francisco. Lumpkin is the African-American minister and former human-rights commissioner who was fired from his post, not for negligence in his duties, but following a public brouhaha that occurred when he admitted his belief in the Old Testament's condemnations of homosexuality.
With a current annual budget of about $11 million, a mailing list of 150,000, and nine staff attorneys stationed in five regional branches, the Rutherford Institute claims it takes on about 80 percent of all "religious liberties" cases across the country. Several other firms pick up most of the slack.
The much smaller Christian Legal Society, founded in 1975, files friend-of-the-court briefs for individual Christian attorneys. Out of court, CLS mediates disputes between evangelical leaders and churches. The Home School Legal Defense Association, headed by Michael Farris (who in 1993 ran unsuccessfully for Virginia's lieutenant governorship), provides specialized counsel and channels for parents inquiring into state-based Christian home-schooling associations.
The Western Center for Law and Religious Freedom, with offices in Washington, Oregon, and California, takes on local cases similar to those handled by the Rutherford Institute. The Western Center distributes a handy one-page sheet, "Political Guidelines for Pastors and Churches," advising activist churches on how to operate within the boundaries of their IRS tax-exempt status. For example, "nonpartisan" voter-registration tables inside the church are fine, but overt electioneering and legislative lobbying may not constitute more than 5 percent of a church's activity. A church can circulate candidates' voting records so long as printed materials include neither endorsements nor editorial comment, and churches may rent but not donate their mailing lists to specific candidates.
Most of this legal advice is provided without a lot of fanfare as Christian rightists slowly insinuate themselves into the political process. But while much of the Christian right's legal apparatus has evolved quietly, the American
Center for Law and Justice - like other Pat Robertson operations - has relied upon publicity to build its war chest and move to the top of the heap of Christian law firms.
Before joining Robertson in Virginia Beach, ACLJ'S chief counsel Jay Sekulow ran an Atlanta-based ministry, Christian Advocates Serving Evangelism, and made frequent promotional appearances on Trinity Broadcasting Network's internationally syndicated "Praise the Lord" talk show. Press profiles never fad to mention that Sekulow is a Brooklyn-born Jew who cut his legal teeth defending - before the Supreme Court - the rights of Jews for Jesus to proselytize in public airports. From there, Sekulow racked up more court victories. First was the 1990 Supreme Court ruling that voluntary, student-initiated Bible clubs must be granted the same access to public-school facilities as other non-curriculum-related groups. That precedent-setting case has been used by other Christians suing for the right to use public facilities for sectarian religious activities. Next Sekulow defended Operation Rescue in a suit filed by the National Organization for Women, Planned Parenthood, and several Virginia abortion clinics. In this case, Bray v. Alexandria Women's Health Clinic, the Supreme Court ruled in early 1993 against the pro-choicers' claim that clinic blockades constitute a violation of the civil rights of women as a "class." In mid-1993, Sekulow won another Supreme Court case, Lamb's Chapel v. Center Moriches, which stemmed from a New York school district's rejection of a Christian group's request to show a film produced by James Dobson's Focus on the Family.
At every turn, Jay Sekulow and the American Center for Law and Justice have trumpeted their victories on Pat Robertson's flagship "700 Club." And why not? The ACLJ has a ready-made publicity machine courtesy of the Christian Broadcasting Network plus Robertson's Christian Coalition mailing lists.
That fact has ruffled the feathers of attorneys with the Rutherford Institute. Rarely do Christian-right organizations take swipes at each other in print. But in Rutherford's January 1994 magazine, legal coordinator Alexis Crow vented her resentment toward the ACLJ and hinted about financial improprieties at Robertson's legal headquarters. "In light of the recent scandals involving religious leaders, people are rightfully suspicious of nonprofit groups," Crow taunted, comparing Rutherford's modest facilities with Robertson's. "Because the Rutherford Institute has no other agenda and does not raise funds for other programs, it is able to put all of its money into its work; TRI does not build lavish buildings or own for-profit subsidiaries," Crow wrote.
Rutherford's annual budget of $11 million is nearly twice that of the ACLJ. But one Rutherford staffer I spoke with seemed threatened by the ACLJ's quick rise to prominence. In a not-so-subtle blast at the ACLJ, Rutherford is circulating a lengthy accountability checklist called "Evaluation Guide for Religious Defense Organizations," which asks Christian donors to compare Rutherford's answers with those of other law firms soliciting money. Here are some of the provocative questions intended to distinguish Rutherford from the ACLJ: "Does the organization take cases even where there is no |precedent' or media value?" "Does the organization have and train more than one |star' litigator?" "Does the organization use the cases and/or work of other organizations to raise its funds?" The questionnaire ends with an advisory: "The answers to many of these questions will inform you as to why the Rutherford Institute is not affiliated with and has not merged with other organizations involved in the area of religious liberty."
That's a reference to Rutherford's decision not to participate in a new scheme by prominent Christian-right leaders to finance selected "religious liberty" lawsuits through a centralized coordinating body, the Alliance Defense Fund. The ADF made its formal debut at a February 1994 National Religious Broadcasters breakfast. But this new effort has been on the drawing board for some time.
As the story was told in a recent issue of Focus on the Family's Citizen magazine, last June 28 representatives of 17 national ministries met via a telephone conference call. They decided to join forces to combat "the legal left" by building an endowment they hope will eventually generate $25 million a year in dividends to sustain Christian legal work indefinitely. Founding Alliance Defense Fund members include some of the Christian right's biggest guns: Focus on the Family President Dr. James Dobson; Bill Bright of Campus Crusade for Christ; Gary Bauer of the Family Research Council; Donald Wildmon of the American Family Association; Christian financial advisor Larry Burkett; talk-show host and USA Radio Network executive Marlin Maddoux; and D. James Kenedy of Coral Ridge Ministries. Joining these heavy hitters, the new ADF board of directors includes National Religious Broadcasters President Dr. E. Brandt Gustavson, former Congressmember Mark Siljander, Bill Bright's business friend William Pew, and additional leaders of Campus Crusade and Focus on the Family.
Overseeing the whole operation from ADF's Phoenix headquarters is Alan Sears, a former federal prosecutor who, under the Reagan administration, directed the Attorney General's Commission on Pornography. More recently, Sears directed the National Family Legal Foundation, a Christian law firm specializing in obscenity cases.
Sears is a slick talker who refused to answer any of my questions about how the ADF plans to raise $1 million in 1994, $6 million in 1995, and $25 million by 1997. He did tell me that the purpose of the ADF is threefold: strategy, training, and funding. By strategy, he said he meant that the ADF will bring Christian lawyers together and try to get them to file uniform briefs, with uniform positions on controversial questions like California's recent "schoolchoice" ballot measure. Training will begin with the recruitment of Christian lawyers for an early 1995 conference to be held at Focus on the Family headquarters. Before that, Sears says, the ADF's aggressive fundraising campaign will rely upon using ads on Christian broadcast stations to expand the base of donors to Christian legal work beyond those already on mailing lists like Pat Robertson's.
Sears says the ADF's caseload priorities will be driven by client needs, not by the prerogatives of specific law firms. But the Rutherford Institute has voiced qualms about the centralized funding and coordination of Christian legal work - and not just because the ADF will direct no money its way. Rutherford's western regional director, Brad Dacus, says that the ADF's grantmaking review board will create an unnecessary and expensive bureaucracy with no sure way for donors to know how their money is spent.
One thing is certain: the launching of the ADF represents a serious escalation of the Christian right's capacity to defend its gains and to punish its opponents through expensive lawsuits.
Sara Diamond, Ph.D., is the author of Spiritual Warfare: The Politics of the Christian Right,as well as a columnist for Z Magazine. Her new book, on rightwing movements in the United States from 1945 to the present, will be published next year by Guilford Press.