The Power Worshippers

by Katherine Stewart

  CHAPTER 10

  Theocracy from the Bench, or How to Establish Religion in the Name of “Religious Liberty”

  Winter Garden seems a very unlikely place to have a religious war. A charming, family-friendly enclave just west of Orlando, the town has a population of 40,000 and is about 60 percent white, 25 percent of Latino origin and, as far as the eye can tell, moderately diverse in its religious and political perspectives. If you want to get certain things done through the city government, on the other hand, the peaceful appearance of religious pluralism dissipates quickly. Tim Grosshans and Joseph Richardson, two longtime residents with very different belief systems, know this aspect of life in Winter Garden very well.

  Tim Grosshans, the senior pastor of First Baptist Church of Winter Garden, is a stout grandfather with a ready smile and a ruff of white hair encircling his bald pate. Notwithstanding his avuncular demeanor, Grosshans knows how to have a good time with the flashy and powerful. When Senator Marco Rubio, whose outreach director is a “personal friend,” invited Grosshans to President Trump’s State of the Union address, Grosshans apparently relished the opportunity to rub shoulders with local VIPs, including then reigning Miss America Cara Mund. “She was real chatty [and] having the time of her life,” Grosshans told a local newspaper. He also issued a favorable opinion on the physical attributes of the first lady: “She’s as good looking in person as she is on television.”1

  Joseph Richardson belongs to that group of Winter Garden residents who are unlikely to be found in churches like that of Pastor Grosshans. A software engineer in his mid-fifties, he identifies himself as a “freethinker” and is an active member of the Central Florida Freethought Community. A slim, pensive man, he left behind a childhood in the Assemblies of God church, a deeply conservative Pentecostal denomination; became an Episcopalian in college; and eventually made his departure from Christianity at forty-nine. His journey was prompted by his concerns about, among other things, the treatment of LGBT Americans. “The ‘love the sinner hate the sin’ language in the church never translated into action that made sense to me,” he says.

  For several years Winter Garden has had a policy of opening certain official city meetings with an invocation or prayer. In the four years up through early 2019, the city opened eighty-four public meetings this way. One invocation came from a Jewish rabbi and one came from a Catholic priest. A third meeting commenced with a moment of silence, and in 2015, before the city adopted a restriction that invocators must represent a 501(c)(3) organization, a man who identifies as nonreligious was selected by the city commissioner to deliver an invocation that contained no reference to religion. The other eighty invocations were delivered by representatives of Protestant churches or religious groups, or by individuals or civic leaders delivering sectarian prayers.

  Pastor Tim Grosshans alone accounted for three invocations, and other staff or members of his church contributed an additional five. Members of the First Baptist squad, like many of the other Protestant groups, seem proud of the explicitly sectarian character of their invocations. “It is in Jesus Christ’s name that we pray for our leadership. Amen,” said Jarian Felton, First Baptist Church’s director of worship.2

  Joseph Richardson first initiated a request for the opportunity to offer an invocation on May 9, 2014, four days after the Supreme Court issued its 5–4 decision in Town of Greece v. Galloway. The conservative majority in that case suggested that efforts to ban sectarian invocations at the start of official town meetings amounted to a violation of religious liberty, whereas such invocations posed no danger of establishing religion. Richardson’s experience over the subsequent four years could make a mockery of the Court’s reasoning. Indeed, it would be one of countless instances illustrating how Christian nationalists have gamed the American judicial system to advance an agenda of “religious liberty” that in reality serves to establish a very clear set of privileges for one variety of religion.

  “I know they are sitting up there on that dais saying that what they’ve done is fair and equitable,” says Richardson. “But it’s obviously not. The spirit of the Greece v. Galloway decision was equal treatment. But the fact that the Supreme Court put their stamp of approval on sectarian invocation has made it so that legislators think they can insert their religious views into meetings and exclude the viewpoints of others who disagree with them.”

  Sectarian invocations before public meetings, like crosses placed on public lands, may appear to play a merely symbolic role in our governance and are therefore easily to dismiss. But they point to the broader privileging of conservative Christianity in America, including its superior access to sources of public money and the perversion of our most deeply held constitutional principles. They are part of the larger project to use the court system to “restore” a version of America that never was.

  Not long after the election of Bill Clinton, Leonard Leo realized that the Christian right had little hope of winning the culture war at the ballot box. A Catholic ultraconservative, Leo was sure that the public, seduced by the shallow values of a liberalizing culture, would never voluntarily submit to the moral medicine needed to save the nation. The last best chance to rescue civilization, he concluded, was to take over the courts. If activists could funnel just enough true believers onto the bench, especially onto the Supreme Court, they just might be able to reverse the moral tide.3

  “He figured out twenty years ago that conservatives had lost the culture war,” said Leo’s former media relations director, Tom Carter. “Abortion, gay rights, contraception—conservatives didn’t have a chance if public opinion prevailed. So they needed to stack the courts.”

  Leo founded a student chapter of the Federalist Society while studying law at Cornell. In 1991 he went to work for the organization’s national office in Washington, D.C. He set about building the conservative legal movement, forging alliances with prospective jurists and Republican leaders. The Federalist Society, which received some early funding from right-wing donors including the John M. Olin Foundation, the Scaife Foundation, and the free-market think tank Institute for Economic Affairs, became a kind of career center for the conservative young ideologues of the legal world. Undistinguished academic records might be forgiven provided an unwavering commitment to the cause could be verified. The best of the young talent was meticulously groomed through a program of rotating internships, clerkships, and interim appointments to the welcoming offices of plutocrat-funded think tanks and legal advocacy groups—“the carefully manicured terrarium of the conservative legal community,” as the journalist Charles P. Pierce has described it. “Federalist Society member? Check. Clerkships for conservative Supreme Court Justices? Check … Wingnut culture-war bona fides? Check.”4

  When George W. Bush was elected president, Leo began working as an outside advisor. According to a 2003 email by a White House aide that was sent to, among others, Brett Kavanaugh, Leo was characterized as a point person for “all outside coalition activity regarding judicial nominations.”5 He became known as a moneyman who could be relied upon to drum up funding for promotional activities on behalf of judicial appointees, providing media training for key pundits or creating grassroots support through advertising campaigns and other means. He also joined the boards of various right-wing and conservative religious organizations, including the Catholic Association Foundation, which funded campaigns to oppose same-sex marriage, and Reclaim New York, whose directors included then Breitbart News chairman Steve Bannon and his billionaire backer Rebekah Mercer.

  The Mercer family became major Federalist Society backers, too, donating nearly $6 million over a span of several years, according to the Washington Post. But even these munificent gifts were dwarfed by other contributions, often from unknown donors. Leo has advised or helped run over two dozen nonprofits, including the Freedom and Opportunity Fund, the BH Fund, and America Engaged. In 2016 and 2017 those three nonprofits, all of which named Leo as president in their tax filings, took in approximately $33 million.
Some of the money was spent on the lobbying arm of the National Rifle Association and groups in the Koch orbit, including FreedomWorks and the Center for Individual Freedom.

  One of Leo’s guiding principles was a commitment to end abortion. The conservative legal activist Ed Whelan wrote, “No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society’s Leonard Leo.”6 At a 2017 presentation at the Acton Institute outlining the Federalist Society’s strategy to remake the federal judiciary, Leo said, “I would love to see the courts unrecognizable.” Trump, he commented, is “the change we’ve been waiting for.”7

  In addition to advising Trump on his judicial picks, Leo and his allies have raised hundreds of millions of dollars—over $250 million between 2014 and 2017 alone, according to the Washington Post—in part to promote conservative policies, provide funding for right-wing TV pundits, and coordinate and finance campaigns for their judicial picks, including Brett Kavanaugh and Neil Gorsuch.

  Leo’s work builds on that of other great minds of the Christian right’s legal juggernaut. In 1994, the Alliance Defense Fund (now Alliance Defending Freedom) was launched with the support of some of the heaviest hitters of the new Christian Right, including D. James Kennedy, founder of Coral Ridge Ministries; James Dobson, founder of Focus on the Family; Bill Bright, founder of Campus Crusade for Christ International (now Cru); Larry Burkett, president of Christian Financial Concepts; Donald Wildmon, president of the American Family Association; and radio host Marlin Maddoux.8 The group secures its backing from financial heavyweights of the movement—among them the Edgar and Elsa Prince Foundation, the Bill and Berniece Grewcock Foundation, the Richard and Helen DeVos Foundation, and the Bolthouse Foundation. They also receive substantial funding from the National Christian Foundation, a “donor-advised fund” that reportedly raised over $1.5 billion in 2017.

  Today, with an annual revenue of over $50 million, the Alliance Defending Freedom is a mainstay of the movement’s plans for dismantling the wall of separation between church and state. The ADF is a key actor behind nearly every major case in the United States that is attempting to expand special privileges for conservative Christians. Its trophies include: Masterpiece Cakeshop v. Colorado Civil Rights Commission; Burwell v. Hobby Lobby Stores, Inc.; Zubik v. Burwell; Citizens United v. Federal Election Commission; Trinity Lutheran Church of Columbia, Inc. v. Comer; and, of course, Good News Club v. Milford Central School.

  Joining the ADF are a number of other legal advocacy groups with largely overlapping agendas. Jay Sekulow, who as of this writing serves as one of President Trump’s counsels, helped Pat Robertson form the American Center for Law and Justice in 1990 with the idea of creating a right-wing alternative to the ACLU. In 1989, Mathew D. (“Mat”) and Anita Staver established Liberty Counsel, which frequently shows up alongside the ADF and ACLJ in court. Becket, formerly known as the Becket Fund for Religious Liberty, whose founder, Kevin Hasson, said he created the organization in response to a “culture war” in the United States, also frequently joins the party. Together these right-wing legal advocacy groups have combined budgets of close to $100 million per year.

  The ADF and its allies are as radical as they are rich. Alan Sears, who led the Alliance Defending Freedom for over two decades, announced his vision in the title of the 2003 book he cowrote with Craig Osten, The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today. “The radical homosexual activist community has adopted many of the techniques used in Nazi Germany,” he wrote.9 Mat Staver of Liberty Counsel was just as quick to push the buttons of paranoia in his own 2004 book from the same publisher, Same-Sex Marriage: Putting Every Household at Risk. The Blackstone Institute, a learning center operated by the ADF to train up its army of lawyers, hopes to inspire a new generation of young attorneys. The organization seeks to “recover the robust Christendomic theology of the 3rd, 4th, and 5th centuries,” according to text that appeared on the website of the Blackstone Legal Fellowship, an ADF fellowship program, in 2014.10 The ADF has invoked key source texts of Christian Reconstructionism, and its faculty at one time included the omnipresent pseudo-historian David Barton, the R. J. Rushdoony–inspired Christian reconstructionist Gary DeMar, and the equally fanatical Andrew Sandlin, who served as executive vice-president of Chalcedon Foundation, coauthored a book with Rushdoony in 2000, and praised his mentor as a “champion of faith and liberty.”11

  In the public perception, the judiciary strategy of the Federalist Society, the ADF, and their allies appear to be centered on the issues of abortion, LGBT rights, and “religious freedom.” In their own public relations messaging, the groups insist that their purpose is merely to defend “free speech” and the rights of persecuted Christians (along with the occasional token persecuted member of another faith). It would seem, however, the goal is to allow their version of Christianity, and their understanding of the Bible, to shape law and government. In recent years they have settled, paradoxically, on the rhetoric of “religious liberty” as the means to secure that goal.

  The Town of Greece v. Galloway decision was just one in a string of victories, and far from the most important. It is, however, illustrative of the power of the Christian nationalist movement in the American judiciary today and the success of its Orwellian use of the term “religious liberty.”

  The case involved the town of Greece in upstate New York, which was in the habit of opening its municipal meetings with sectarian invocations—exclusively Protestant Christian in nature. Two townspeople of different faiths, Susan Galloway and Linda Stephens, complained that the process relegated them to second-class status and violated the First Amendment prohibition on the establishment of religion, and a number of lower courts agreed with them. But in May 2014 the Supreme Court gave the town its blessing and permitted the prayers to continue.

  Christian nationalists were jubilant with the result. “It wasn’t just an answer on prayer—it was an answer to prayer!” the Family Research Council exulted.12 More important than the license to pray, the religious nationalists understood, was the legal reasoning encoded in the decision. The conservative majority in Town of Greece follows a logic that the ADF and its allies had been carefully constructing for years—one case at a time, one pliant Supreme Court justice at a time. That logic has implications that extend far beyond the matter of invocations at town meetings.

  The first, crucial move in the logic of Greece is to reinterpret public acts that would appear to establish religion—such as officially sponsored invocations at the start of public meetings—as the personal speech of private individuals. Here the five conservatives then on the Supreme Court obediently followed the line of thought that the ADF and its allies provided in their briefs. If a clergyman appointed by the municipal government of Greece bids “All rise” before delivering a prayer, the majority decided, this is not an establishment of religion because the words do not come from the mouth of a public official. If town leaders respond with an “amen,” that isn’t establishment either because, just then, public officials are acting as private individuals, whose “religious liberty” is not to be denied.

  The second, critical step in the logic embodied by the Greece decision is to deny that public perceptions of an establishment of religion have any meaningful legal weight. Thus, in response to the plaintiffs from Greece who (rather understandably) saw in the town’s prayer practices an effort to favor one religion, Justice Anthony Kennedy sniped in his majority opinion, “Offense … does not equate to coercion.” Justice Clarence Thomas, joined by Justice Antonin Scalia, drew out the critical implication: “To the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts—not the ‘subtle coercive pressures’ allegedly felt by respondents in this case.” In other words, officially approved, relentlessly sectarian observance counts as establishment only if you are compelled to kneel by law.

  The final, critical piece of the puzzle is t
o use the myth of neutrality as a justification for the establishment of the dominant religion. As long as we are looking at the letter of the law, towns like Greece are “neutral” with respect to religious viewpoint inasmuch as they purportedly allow citizens of all religious perspectives and sects to offer their own opening invocations. If conservative Christians happen to win the invocations sweepstakes, well then, that must be because they represent the majority of the town. Indeed, Justice Samuel Alito dismissed the blatantly sectarian history of the town of Greece’s proceedings—Christian clergy had a lock on the slot for ten straight years—by pointing out that Jews represent a mere 3 percent of the local population and alleging that other groups are no larger.

  Following the logic from beginning to end, it all amounts to saying that the “religious liberty” of the majority—or, at least, of the group that perceives itself to be in the majority, or maybe just a belligerent minority that happens to hold the reins of power—justifies the establishment of their religion. The only restriction—which turns out to be not much of a restriction at all—is that you can’t force other people to kneel by law. You can just send them a very clear message that the people with power, and those who hope to remain in their favor, all happen to belong to the “correct” religion. Everyone else, apparently, will just have to suck it up. That, more or less, is what Joseph Richardson discovered in Winter Garden.