Social Conservatives’ Legal Juggernaut

By Patrick Gregory

Oct. 5 — Alan Sears has been on the front lines for some of the most polarizing legal issues of our time, including same-sex marriage and bathroom access for transgender individuals.

Alliance Defending Freedom, the organization he leads, has had remarkable success promoting religious freedom, with 49 victories at the high court in various roles, including as counsel and amicus.

ADF is “a big player” that has “made a real difference” by “its sheer size and persistence,” Douglas Laycock, a professor at the University of Virginia law school, Charlottesville, Va., who has written extensively about religious liberty law, told Bloomberg BNA Oct. 5.

Sears, ADF’s president, chief executive officer and general counsel, has been at the helm of the organization since its inception in 1994.

The Scottsdale, Ariz.-based group will be lead counsel at the high court in the only religious freedom case granted so far this term, Trinity Lutheran Church of Columbia, Inc. v. Pauley, 84 U.S.L.W. 3405 (U.S. 2016) (review granted) ( 84 U.S.L.W. 975, 1/21/16).

ADF, which describes itself as “an alliance-building legal organization that advocates for the right of people to freely live out their faith,” isn’t lacking in personnel or funds.

“We have 3,000 allied lawyers now,” and “by the grace of God our budget last year broke $50 million of cash income,” Sears told Bloomberg BNA.

Playground Fight

In Pauley, ADF is challenging Missouri’s denial of Trinity Lutheran Church’s application for state funds to resurface its daycare’s playground with tire scrap rubber—solely because it was a church.

The playground is open to neighborhood children after hours, and making it safer is “a purely secular matter,” ADF argues.

ADF says the denial was religious discrimination that violated the U.S. Constitution’s free exercise clause.

The state argues that the free exercise clause doesn’t require it to subsidize churches.

Recent Wins, Ripple Effect

The group’s recent high court wins include defending a town’s legislative prayer practice in Town of Greece v. Galloway, 82 U.S.L.W. 4334, 2014 BL 124245 (U.S. May 5, 2014), and securing a church’s right to use signs giving directions to its worship services in Reed v. Town of Gilbert, 83 U.S.L.W. 4444, 2015 BL 193522 (U.S. 2015) ( 83 U.S.L.W. 1950, 6/23/15).

ADF represented the petitioners in both cases, and those wins have had a ripple effect.

The U.S. Court of Appeals for the Fourth Circuit recently relied heavily on Galloway in finding that a North Carolina county’s legislator-led prayers at opening meetings were constitutional, in Lund v. Rowan Cty., N.C., 2016 BL 307469 (4th Cir. Sept. 19, 2016) ( 85 U.S.L.W. 383, 9/20/16).

Further, Reed has been applied far beyond church signs—it’s been used to invalidate laws against robocalls, “ballot selfies” and panhandling ( 84 U.S.L.W. 1094, 2/5/16).

Cake Controversy

ADF has asked the U.S. Supreme Court to take up a case involving wedding cakes, religious liberty and discrimination concerns in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 85 U.S.L.W. 3048, U.S., No. 16-111, petition filed 7/22/16 .

The Colorado Court of Appeals found that baker Jack Phillips’s refusal to make a cake for a same-sex wedding violated a state anti-discrimination law, in Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. Ct. App. 2015) ( 84 U.S.L.W. 203, 8/13/15).

Sears said he hopes the high court will decide to grant review at its Oct. 28 conference, and recognize “the right of an artist to not be compelled to produce something” that “violates the tenets of their own faith.”

The Human Rights Campaign, an LGBT civil rights organization, sees such disputes as a matter of discrimination rather than religious freedom.

“A business owner’s personal beliefs should never be reason enough to discriminate against a customer because of who they are or who they love,” HRC’s legal director Sarah Warbelow said concerning the baker’s refusal.

HRC describes ADF as “one of the nation’s most dangerous organizations working to prevent equality for LGBT people.”

But Sears sees cases like Masterpiece Cakeshop as a matter of tolerance for religious beliefs.

Tolerance “is a two-way street,” he said.

‘Christian Organization.’

The “ Christian organization” has funded “about 3,200 matters for other organizations and other lawyers,” Sears said.

UVA’s Laycock said that ADF is more of a “Christian organization” than a “religious liberty organization” because it rarely represents non-Christians.

However, ADF filed an amicus brief in support of a Muslim prisoner who successfully challenged a prison beard ban on religious grounds in Holt v. Hobbs, 83 U.S.L.W. 4065, 2015 BL 12127 (U.S. Jan. 20, 2015) ( 83 U.S.L.W. 1061, 1/20/15).

Sears said ADF’s donors aren’t limited to Christians. Today, it’s hard to define a typical donor, he said, explaining the group’s funding efforts.

ADF has “had something over a million different” entities and individuals contribute to the organization.

Those supporters include orthodox Jews, evangelical Christians and Catholics.

But overall, they’re people who are concerned about “liberty, the Constitution, and order,” Sears said.

Petitioning Prowess

The Supreme Court typically has “anywhere from 7,000-8,000” petitions for certiorari filed with it each year, Sears said.

“They typically take about 1 percent, about 75-80 cases.”

When “you look at statistical odds it’s almost impossible, but yet, we’ve had years where we’ve had as many as three, four, five, six cases that we’ve had some kind of involvement with,” he said.

That involvement has varied, including roles as counsel of record, amicus curiae and provider of litigation funding, Sears said.

ADF’s record is eight cases in one year, Sears said.

It helps to have a large number of cases from which to choose, Sears said.

“Quite frankly, the funnel is very, very large coming in, and the number of cases that are going forward is very significant, and that creates a lot of controversy.”

“We receive somewhere around 400 requests for assistance a month in areas that relate to our mission,” he said.

Formation, RFRA

ADF launched in 1994.

A “group of people across the country began to have really great concern about religious freedom,” Sears, the group’s first president, said.

That sentiment first led to passage of the Religious Freedom Restoration Act in 1993, he said.

RFRA, 42 U.S.C. § 2000bb et seq., prohibits substantial burdens on religious exercise unless they are the “least restrictive means” of furthering “a compelling governmental interest.”

Along with RFRA, “there were a lot of people of faith who thought that not only did we need a new law, we needed a new organization,” Sears said.

Consequently, ADF was founded with goals including funding and training “in support of legal advocacy.”

Training, Originalism

ADF says its training academy is intended to help attorneys advocate for “religious liberty, the sanctity of life, and marriage and family.”

“We’re approaching 2,000 lawyers that have been through our formal training,” Sears said.

ADF also has a program for training college and law students concerning constitutional originalism.

Such training is important because many graduates “from top law schools go through three years and they’ve never actually seen a copy of the Constitution in their classroom,” Sears said.

“We’ve now graduated close to 1,800 students through that program,” he said.

Novel Solution

Sears’s concerns about religious liberty led him to write a fiction novel, “In Justice.”

“The essence of the book is the state interferes with the ability of a pastor to actually preach what that pastor knows to be a biblical truth,” he said.

Although a work of fiction, ADF has “cases that are almost exactly on point,” Sears said.

Those cases include college students who “uphold their Christian faith values” being “told that they cannot get a degree or graduate from universities.”

“The good news is we’ve been winning most of the cases that have gotten through litigation,” Sears said.

The bad news is, “why are we fighting these basic things in the first place?”

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.