Picture a law firm with thousands of lawyers at its disposal, hundreds of employees, and annual revenues approaching Am Law 200 territory. Its U.S. Supreme Court record is unmatched by a key measure. This year it lured a former Cravath, Swaine & Moore partner to its ranks of senior litigators.
But this is no traditional law firm partnership. It’s a right-leaning Christian legal non-profit, alternately admired as a legal bulwark and reviled as a hate group for its advocacy on flashpoint social issues such as homosexuality and abortion.
Next month the group, Alliance Defending Freedom, will celebrate 25 years of "protecting the right to share and live out the Gospel by defending religious freedom, the sanctity of life, and marriage and family," as it defines its legal mission. As it approaches is anniversary, its influence in the capital and beyond is larger than ever before.
ADF's Big Year
The 2018 calendar year served as something of a banner year for ADF: It won multiple times at the Supreme Court in some of the year's most politically fraught cases and saw ADF alumni tapped for top legal jobs ranging from a federal appeals court judgeship to overseeing communications at Main Justice.
Formed in 1994 as “Alliance Defense Fund," by prominent evangelicals James Dobson of Focus on the Family and Bill Bright of Campus Crusade for Christ, ADF had already scored a pair of victories at the Supreme Court by the following year. Alan Sears was then its founding CEO of ADF and its first attorney on staff. A quarter-century later, its high court record remains chief among its accomplishments.
ADF’s undefeated record at the Supreme Court in the last five years is unmatched by any other litigant that has argued at least four cases, according to an analysis by Empirical SCOTUS. ADF has argued nine times before the high court in the last seven years and won every time, including twice last year.
Any time an organization racks up that many wins, “they must be taken as a serious and formidable advocate,” said Scott Keller, Baker Botts’ Supreme Court and constitutional law practice chair. When Keller was solicitor general of Texas he filed amicus curiae briefs in support of some ADF cases.
In 2018, ADF prevailed before the Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the standoff over a baker’s refusal to make a cake for a same-sex wedding, and National Institute of Family & Life Advocates v. Becerra, which involved a California law requiring pregnancy centers opposed to abortion to provide information about how to obtain an abortion to pregnant women.
Kristen Waggoner, senior vice president of ADF’s U.S. legal division and the winning advocate in Masterpiece, attributed her group’s success to its focus on its mission, rather than on celebrating star lawyers.
Attorney Kristen Waggoner. Photo courtesy of Alliance Defending Freedom.
“We don’t care who gets the credit, what matters is that freedom is protected,” Waggoner said. “We just need to get the work done and serve as an alliance to work with other people, because there’s no one organization that is going to be able to achieve the generational shaping wins necessary to protect freedom in the areas in which we work.”
ADF has close to 275 employees on its staff and more than 3,300 allied attorneys around the world. Allied attorneys are in private practice but commit to working with ADF as lead or local counsel on specific matters or issues. Before joining ADF in 2013, Waggoner said she was an allied attorney for about 16 years when she was a partner at Ellis, Li & McKinstry in Seattle.
Waggoner said ADF receives about 3,500 requests for help each year and has 1,500 active matters at any one time, which has prompted her to look for new staff hires in the coming year to respond to the increasing work. Headquartered in Scottsdale, Arizona, with a national practice that includes regional offices in D.C. and Georgia, the firm is looking to expand throughout the country.
In 2018, ADF added Roger Brooks, a veteran Cravath litigation partner, and John Bursch, a former Michigan solicitor general.
The group is also becoming more ambitious in the matters it takes on, Waggoner said.
“As the organization has grown and I think the litigation bench has deepened here at ADF, we do look for cases that will have a national impact, and we have refined our strategic objectives so we have very clear legal objectives that we want to see accomplished,” she said. “When we get requests for cases or we’re looking for cases, we’re looking to establish precedent in those specific areas, so obviously those would get the highest priority in terms of cases we would take."
Still, Waggoner added, ADF continues to fight smaller battles as well. "We’re committed to trying to find resources for anyone that calls us with a legal issue that is impacting religious freedom, the sanctity of life, and marriage and family,” she said.
Signs of Success—and a Backlash
ADF reported more than $56 million in “total revenues and other support” in 2017, and slightly more than $59 million in 2016, according to an audit prepared by Clifton Larsen Allen posted by ADF. To put that in perspective, the lowest ranked law firm among the Am Law 200 clocked in with revenues of $94 million last year. ADF's revenue has grown considerably from earlier this decade. ADF reported revenues of slightly more than $43.5 million in 2013 and more than $48.3 million in 2014, according to IRS disclosures.
ADF relies on revenue coming solely from its donors, whose identity the organization does not disclose. The group does not accept government funding. ADF has spent more than $49 million funding cases over the course of its history and its allied attorneys have performed more than 1 million hours of pro bono work for the organization.
Waggoner said she believes the country has begun “turning the corner” from the “very dark time in 2012, 2013” for religious liberty. ADF’s opponents beg to differ. The left-leaning Citizens for Transparency purchased ad space on a Times Square billboard last month imploring onlookers to “Stop Alliance Defending Freedom,” claiming the group was waging war on LGBTQ individuals.
In 2016 the Southern Poverty Law Center labeled ADF a “hate group,” a designation it defends by citing ADF's opposition to abortion, advocacy against state-sanctioned same-sex marriage, and because of what SPLC asserts is ADF's "hard-right Christian theocratic worldview."
ADF has responded by arguing that, “the SPLC used to do good work, but it has lost its way." Waggoner said ADF chooses to let its "work product" serve as its response to the SPLC.
"Our work is to protect the fundamental freedoms in the area of speech and religion and conscience, and it’s to protect people from all walks of life," Waggoner said. "If you compare that to the Southern Poverty Law Center, that has openly said they intend to go after those with whom they disagree, and those with whom they’ve identified as being on the right, I think our record speaks for itself."
ADF also rented space in December on the same Times Square billboard as Citizens for Transparency. The message: “Tolerance is a two-way street,” and ADF believes in truth and “not trolling.”
ADF’s overall message looks to be reaching more people than ever before. The number of website page views to ADF’s website tripled between 2014 and 2017 to nearly 4 million, according to Guidestar, which tracks nonprofits. Interest in ADF on social media has similarly spiked, with Guidestar reporting that ADF’s number of Facebook followers doubled during the same timeframe.
Kerri Kupec, who was ADF's legal counsel and communications director during that period, has since been tapped to serve as the U.S. Justice Department’s top spokesperson following her detail to the White House to help confirm Justice Brett Kavanaugh to the Supreme Court.
In the Trump Era
Several other ADF allies and employees have also entered President Donald Trump’s administration—for example, U.S. Health and Human Services Department deputy general counsel Matt Bowman—but others are at odds with the president, such as former ADF senior counsel David French, who considered challenging Trump’s 2016 campaign as an independent candidate at the behest of “Never Trump” conservatives.
That hasn't stopped some Trump opponents from citing some judicial nominees' ties to ADF as part of their efforts to thwart their confirmations. During Senate Judiciary Committee hearings on her nomination to a federal appeals court, Judge Amy Coney Barrett’s decision to give presentations to ADF’s Blackstone Legal Fellows while she was a law professor came under fire from former Democratic senator Al Franken.
The Blackstone Legal Fellowship is a nine-week summer program that, “prepares Christian law students for careers marked by integrity, excellence, and leadership,” according to its website.
Williams & Connolly partner Allison Jones Rushing’s nomination to the U.S. Court of Appeals for the Fourth Circuit has similarly come under scrutiny for her having spoken to Blackstone fellows and over a past internship with ADF. During an October 2018 Senate hearing on Rushing’s nomination, which no Democratic senator attended, retiring Sen. Orrin Hatch (R-Utah) spoke in defense of ADF as an “effective advocate” defending “mainstream views.”
“Attempts to discredit nominees because of connections to ADF have failed, and if tried again they will fail again,” Hatch said during the hearing. The Senate has not yet made a decision on Rushing’s nomination, which is awaiting a committee vote that looks likely to come in the New Year.
For ADF, the New Year will bring arguments before the Arizona Supreme Court regarding Phoenix-area calligraphers’ religious beliefs, a decision from the Kentucky Supreme Court in a case involving a T-shirt printer’s religious beliefs, and hearings in a case about a New York adoption provider’s religious beliefs. ADF’s legal portfolio also includes its Center for Academic Freedom, which has litigated against more than a dozen colleges and universities in the last year and looks poised to add work in 2019.
Regardless of whether ADF’s opponent is in the courtroom, at a Senate hearing, or in Times Square, Waggoner said the group believes in respect for good-faith differences of opinion.
“If we want freedom for ourselves, we have to extend it to those we disagree with—that’s what we’re about,” Waggoner said.