When the Supreme Court ruled last June in 303 Creative LLC v. Elenis that a private business has, in the words of Justice Sonia Sotomayor, “a constitutional right to refuse to serve members of a protected class,” it was on the basis of what turned out to be a manufactured conflict. The plaintiff in the suit, Lorie Smith, claimed that Colorado’s Anti-Discrimination Act prevented her from fulfilling her dream of creating wedding websites. However, it turns out that she didn’t have this wedding business, she had no prospective clients for this business, and the basis for the case was bogus.
The force behind the suit was the Alliance Defending Freedom, a legal advocacy and training group focused on “religious liberty” protections and fighting LGBTQ+ equality. It is considered a hate group by the Southern Poverty Law Center. The ADF also backed the plaintiffs in 2018’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission decision, in which the ADF tried to get the Supreme Court to say anti-gay bigotry, cloaked in the guise of religious freedom, was protected free speech. The court, not yet dominated by conservatives, wouldn’t go that far, so the ADF came back with 303 Creative.
A new investigation from The Washington Post details how much work the ADF put into manufacturing this and other cases to fight marriage equality. The Post found that ADF had previously represented “a photographer from Kentucky, videographers from Minnesota and a pair of Arizona artists who created stationery” in successfully challenging local anti-discrimination laws, providing the legal precedent for the ADF’s eventual win before the Supreme Court. But the ADF didn’t just represent these businesses: They all but manufactured most of them in order to create these precedents to bring to the court. Once the cases were over, some of the businesses didn’t bother to operate.
[A]n examination by The Washington Post of court filings, company records and other materials found that two of the three vendors cited in ADF’s September 2021 petition had stopped working on weddings, and the other did not photograph any weddings for two years. Three additional vendors represented by ADF in similar lawsuits elsewhere also abandoned or sharply cut back their work on weddings after they sued local authorities for the right to reject same-sex couples, The Post found. …
ADF also had a hand in formally establishing companies for some of its clients, The Post found. Lawyers associated with the legal group signed incorporation paperwork and helped to draft company policies that were later used as a basis for the wedding lawsuits. ADF promoted some of its lawsuits with videos and images of plaintiffs photographing women in bridal gowns at what The Post found were staged events featuring ADF employees.
The Post provides a brief history of the ADF’s rise to prominence and power, noting the organization “collected nearly $97 million in contributions in the 12 months ending June 2022—a 27 percent increase over the previous year and almost double its 2016-17 total.” As the Post says, finding the group’s donors is difficult because they don’t have to be disclosed.
What the Post doesn’t get into is that the ADF is connected to a larger dark money network created by Leonard Leo, the man behind the far-right restructuring of the Supreme Court. Accountable.US dug into Leo and his involvement in a number of cases before the court last session and found multiple ties to the ADF.
He has political and financial ties to a number of the groups that filed briefs in support of the challenge, including Concerned Women for America, the Claremont Institute, the Becket Fund, and the Ethics and Public Policy Center. The ADF itself received funding from Leo’s 85 Fund, which gets funding from Donors Trust, an allied dark money group that’s raked in—and paid out—hundreds of millions over the past several years to far-right objectives like fighting marriage equality.
It’s a well-orchestrated and massively funded project with Leo at the center. The right has systematically captured the courts, using Republican presidents and senators to appoint friendly judges to the federal bench. Then they manufacture plaintiffs and cases to put in front of these sympathetic judges, where they know they have a good chance of winning. From there, it’s on to the Supreme Court, where Leo’s friends Justices Clarence Thomas and Samuel Alito—along with the three Donald Trump appointees who owe their seats to Leo—will finish the job.
Make no mistake: One of the ADF’s clear goals is an end to marriage equality—the challenge that Thomas set in his concurrence in last year’s Dobbs v. Jackson Women’s Health Organization, which overturned decades of precedent on abortion rights. Yes, there’s a new law, the federal Respect for Marriage Act, but what that law can’t do is force individual states to license same-sex marriage should the Supreme Court decide to overturn its previous Obergefell decision.
With the court so wholly—and corruptly—captured in the dark money web created by Leonard Leo and his billionaire friends, it’s only a matter of time.
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