Evangelical Law Firms and

the Translation of
Arguments

A Study of the Evangelical Movement’s Influence

through National and International Courts

Hanne Amanda Trangerud

Master’s Degree Thesis in History of Religion

60 Credits
Department of Culture Studies and Oriental Languages
Faculty of Humanities

UNIVERSITY OF OSLO
Spring 2014
II
Evangelical Law Firms and the Translation of Arguments

A Study of the Evangelical Movement’s Influence

through National and International Courts

Hanne Amanda Trangerud

Master’s Degree Thesis in History of Religion (60 Credits)

Department of Culture Studies and Oriental Languages
Faculty of Humanities
UNIVERSITY OF OSLO
Spring 2014

III
© Hanne Amanda Trangerud
2014

Evangelical Law Firms and the Translation of Arguments: A Study of the Evangelical
Movement’s Influence through National and International Courts

Hanne Amanda Trangerud

http://www.duo.uio.no/
Trykk: Reprosentralen, Universitetet i Oslo

IV
“Law is more than a profession, it’s a calling.”

Regent University School of Law (motto)

V
VI
Abstract

Since Evangelicals entered the political arena in the late 1970s, scholars and media have paid
much attention to the so-called New Religious Right of American politics. Far less attention has
been given to a related and simultaneously emerging phenomenon: Evangelical law firms. This
MA thesis examines the reasons for the establishment of American Evangelical law firms, their
main strategies, and their influence on societal development in the United States and internatio-
nally. While recent studies indicate that the earliest research on the Evangelical movement’s
political influence overestimated its impact, this thesis argues that the influence of Evangelical
law firms has been underestimated and that their potential power has not been fully understood.
Serving the same causes as the Evangelical political lobby groups, though less visible to the
public, the impact of the law firms can be felt in a variety of fields, affecting the lives of
millions: the right of American students to establish bible study groups or pray together on
public school ground; the presence of religious monuments in the cultural landscape; abortion
and marriage regulations; the drafting of significant legislation, such as the USA PATRIOT
Act; and the display of crucifixes in Italian class rooms. This thesis highlights the role that the
law firms’ argumentation plays for their influence. Concentrating on one leading law firm – the
American Center for Law and Justice, founded by Pat Robertson in 1990 – the thesis shows that
the Evangelical law firms function as ‘mediators’ between the Evangelical movement and
governmental institutions, and as translators of the movement’s religious and moral causes into
a neutral, secular language. This translation is not only necessary to convince a (per definition)
secular court on a certain issue. More important, the law firms provide supportive judges with
neutral arguments that can be used as legitimate justifications for the court’s decision in a
pluralistic society. The thesis focuses on two issues which have been particularly important to
the Evangelical movement: the fight against abortion and the protection of public religious
expressions. A main contention is that the arguments presented by the law firms must be
understood in light of the overall cause of the Evangelical movement, which involves the notion
of a Christian national identity. The thesis further shows how this notion is connected to a
certain interpretation of the American constitutional order, which in turn gives a different
understanding of popular terms like religious freedom, liberty and (human) rights than how
these terms are usually understood from a liberal point of view. The main focus of the thesis is
on the US federal court system, but it also discusses cases from the European Court of Human
Rights.

VII
VIII
Acknowledgements

I am first of all grateful to my supervisor, Professor Anne Stensvold, for reading through and
commenting on my chapters. Her advice and her belief in my project have been much
appreciated. I would also like to thank Vebjørn Horsfjord and Vemund Blomkvist for giving me
some good advice and much encouragement during the process of writing. Thanks to Vebjørn
for introducing me to the Lautsi case and an article by ECLJ Director General Grégor Puppinck
which made me curious to find out more about Evangelical law firms and their influence. As for
inspiration, I am also grateful that Anne suggested that I read the Norad report Lobbying for
Faith and Family: A Study of Religious NGOs at the United Nations. This report showed me
another aspect of the activity of Evangelical law firms and gave me a starting point for the
search for American Evangelical law firms. Thanks to Vemund for offering to read through the
whole thesis when I had finally put it together. The response has been helpful in the final
editing. Thanks also to my fellow students and my friend Adjoa for some interesting talks these
two years.

IX
X
Abbreviations

ACA = Affordable Care Act (2010) (also: ObamaCare)

ACLJ = American Center for Law and Justice (1990)

ACLU = American Civil Liberty Union (1920)

CBN = Christian Broadcasting Network (1961)

DOMA = Defense of Marriage Act (1996)

ECHR = European Convention of Human Rights (1953)

ECLJ = European Centre for Law and Justice (1997)

ECtHR = European Court of Human Rights (1959)

IBSM = identity-based social movements (e.g. the civil rights movement, the women’s rights
movement, the gay rights movement)

NAACP = National Association for the Advancement of Colored People (1909)

NAE = National Association of Evangelicals (1942)

RFRA = Religious Freedom Restoration Act (1993)

USA PATRIOT Act = Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (2001)

WCFA = World Christian Fundamentals Association (1919)

XI
XII
Central Legal Terms
Legal terms are explained in the text. To provide an easily accessible ‘dictionary’, simple
definitions of the most central terms are included here:

Amicus curiae – (lat. “friend of the court) a third-party intervener, i.e. a party that is not
directly involved in a case, but who offers (written) information to the court in the
form of an  amicus brief.

Amicus (curiae) brief – a letter to the court from a third-party intervener in support of one of
the parties involved in a case.

Appellant – the party appealing a case from a lower court.

Appellate court – see circuit court.

Appellate jurisdiction – the authority of a court to review a case which has already been
decided by a lower court (e.g. the  circuit courts may review cases that are appealed
from the  district courts).

Brief – see legal brief or amicus (curiae) brief.

Case sponsor – see test case selection strategy.

Circuit court (also appellate court) – the second level of the US federal court system, located
between the  district courts and the  Supreme Court.

District court – a  trial court at the lowest level of the US federal court system. There are
94 district courts located across the United States, each belonging to one of the twelve
 circuit courts.

Due Process Clause (14th Amendment) – “No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.”

Equal Protection Clause (14th Amendment) – “No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall

XIII
 any State deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.”

Establishment Clause (1st Amendment) – “Congress shall make no law respecting an estab-
lishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech…”

Free Exercise Clause (1st Amendment) – “Congress shall make no law respecting an estab-
lishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech…”

Free Speech Clause (1st Amendment) – “Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech…”

Judicial review – the power of the judicial branch to declare presidential acts and
congressional laws unconstitutional.

Legal brief – a written document which points to relevant facts and laws, field with the court
by a client or his/her lawyer.

Opinion (also legal opinion) – the written explanation of a court which clarify the reasons and
legal principles for its ruling.

Original intent – what the authors of the Constitution intended when they wrote it.

Original jurisdiction – the authority of a court to hear a case for the first time (e.g. the 
district court has original jurisdiction in federal questions involving the US
constitution).

Plaintiff – the party that filed the original lawsuit.

Precedent – a legal decision which works as a rule for subsequent cases involving similar
situations.

Supreme Court (US) – the highest court of the US federal court system. Its decisions cannot
be appealed. Consists of nine justices (one chief justice and eight associate justices).

XIV
Test case – a case with sympathetic facts that is used to challenge (or test) the validity of a
certain law with the desire of changing it.

Test case selection strategy – when a law firm chose to sponsor a  test case or a serial of
cases. The strategy enables the law firm to control the course of the litigation.

Third-party intervener – see amicus curiae.

Trial court – the first court in which a case is heard, i.e. the trial courts have  original
jurisdiction.

Writ of certiorari – the decision of the Supreme Court to hear an appeal from a lower court.

Legal cases are referred to by the first named party on each side of the case, for instance:
Roe v. Wade (1973)
The first name (Roe) represents the plaintiff or appellant, while the second (Wade) names the
responding party. The year in parenthesis shows when the court rendered its decision. When a
case is referred to again, only the name that has been established as an abbreviation is used
(e.g. Roe).

XV
XVI
Content

Abstract ………………………………………………………………………………….…VII

Acknowledgements…………………………………………….……..………………….….IX

Abbreviations………………………………………………………………………………..XI

Central Legal Terms ……………………………………………………………………...XIII

Introduction .............................................................................................................................. 1
Purpose and Aim of Inquiry ................................................................................................... 2
Clarification of Terms ............................................................................................................ 3
A Theoretical Model .............................................................................................................. 5
Material: Legal Briefs, Petitions, and Articles ....................................................................... 7
Method: Text Analysis ........................................................................................................... 8
Former Research .................................................................................................................... 9
Content ................................................................................................................................. 10
1 How the Evangelical Movement Went Political .......................................................... 11
The Influence from the Great Awakenings .......................................................................... 12
The Fundamentalist Isolation after the Scopes Monkey Trial ............................................. 14
The New Evangelical Movement of the 1940s .................................................................... 16
Action to Influence the Destiny of the Nation ..................................................................... 17
A Call to Involve in Politics ................................................................................................. 19
A Call to Involve in Litigation ............................................................................................. 21
2 Influencing Law Through Litigation ............................................................................ 23
The Religious Aspect of the Founding Documents ............................................................. 24
The Separation of Powers, and the Power of the Judiciary .................................................. 25
Liberal Movements and Litigation ....................................................................................... 28
Conservatives and Litigation ................................................................................................ 30
The Holistic Approach of Evangelical Law Firms ............................................................... 31
Using Litigation and Rights to Fight Back........................................................................... 33
3 The American Center for Law and Justice .................................................................. 35
Pat Robertson – the Founder ................................................................................................ 35
Jay Sekulow – the Leader..................................................................................................... 37
The Staff ............................................................................................................................... 38
XVII
 Key Issues, Goals and Strategies.......................................................................................... 40
Interaction with the Other Branches of Government ........................................................... 42
International Engagement .................................................................................................... 44
The Two Faces – a ‘Mediator’ and a ‘Gateway’ .................................................................. 45
4 Defending the Rights of the Unborn ............................................................................. 47
Abortion in US Law and Courts ........................................................................................... 48
The ACLJ’s Involvement in Abortion Cases ....................................................................... 51
The Affordable Care Act and the Fight against the ‘Abortion-Pill’ .................................... 54
The ACLJ’s Arguments against the ACA in the Informal Public Sphere ........................... 56
Korte v. U.S. Department of Health and Human Services – the Contraception Mandate ...... 58
The ACLJ’s Argumentation in Korte ................................................................................... 59
A ‘Gateway’ for the Pro-Life Cause .................................................................................... 63
5 Separation of Church and State v. Judeo-Christian Tradition ................................. 64
Public Religious Expressions in US Law and Courts .......................................................... 65
The ACLJ’s Involvement in Church/State Cases ................................................................. 70
The ACLJ’s Arguments for Public Religious Expressions in the Informal Public Sphere ....... 71
Pleasant Grove v. Summum – the Public Display of a Ten Commandments Monument ......... 72
The ACLJ’s Argumentation in Pleasant Grove ................................................................... 74
Lautsi v. Italy – Crucifixes in Italian Classrooms ................................................................ 76
The L’Osservatore Romano Article and the ECLJ’s Argumentation in Lautsi ................... 79
One Cause, Many Arguments .............................................................................................. 80
6 Religious Freedom and a National Identity ................................................................. 82
The Rationale for Translation .............................................................................................. 83
Plurality as a Safeguard of Freedoms and Rights ................................................................ 86
Contending Together for a Nation under God ..................................................................... 89
Forming a Public Opinion on Identity.................................................................................. 92
The Mantle of Religion ........................................................................................................ 95
7 Summary and Conclusion ............................................................................................. 98
Bibliography ......................................................................................................................... 101
Attachment 1 – ACLJ Supreme Court Cases .................................................................... 131
Attachment 2 – The Two Faces ........................................................................................... 135
Attachment 3 – The Building and Translation of Causes................................................. 136

XVIII
XIX
XX
Introduction
In these shifts that have come in law, where were the Christian lawyers during the crucial shift from
forty years ago to just a few years ago? (…) [S]urely the Christian lawyers should have seen the change
taking place and stood on the wall and blown the trumpets loud and clear. A nonlawyer like myself has
a right to feel somewhat let down because the Christian lawyers did not blow the trumpets clearly
between, let us say, 1940 and 1970.

Francis Schaeffer, A Christian Manifesto (1981:47)

In his 1994 book on secularization and the role of religion in the public sphere, sociologist José
Casanova described the idea that Evangelicals1 have power and influence on American politics
and societal development as misconceived and unfounded. Although Evangelicals became more
visible in politics during the 1980s, not least thanks to the establishment of Jerry Falwell’s
Moral Majority, they did not represent the force that many sympathizers, opponents, and even
social scientists seemed to think. Rather, Casanova concluded, this unexpected political
mobilization was no more than a “well-organized, vociferous minority” which “had miraculous-
ly become, in the minds of many, a threatening majority” (1994:161). However, the Evangelical
effort to influence society was not limited to presidential campaigns and congressional lobbying.
While still a rather new phenomenon in the 1980s, with limited influence due to their lack of
funding, staff, and experience, the Evangelical law firms have developed into highly effective
actors who influence societal development, both in America and internationally. For the lawyers
involved, this activity is often seen as a religious call to protect and promote certain values and
rights, not only for the individual, but also for society as a whole (den Dulk 2006:207-208;
Scheingold and Sarat 2004:114-115). These law firms do not represent clients in the traditional
sense. Instead they work for causes, the most prominent being religious liberty, a category
which typically involves religious expressions in schools and other public places, the traditional
family, parental rights, and the protection of life. In addition to litigation, the law firms’
strategies include training and education of lawyers; legal services and advice to individuals,
businesses, and politicians; publication of information; and, not least, visibility in the media. As
Liberty Institute, an Evangelical law firms based in Texas, puts it: “[W]e must also win in the
marketplace of ideas to truly succeed in our mission to restore religious liberty in America”
(2013). The activity of the Evangelical law firms can indeed be described as involvement in a
cultural battle – a battle fought against liberal social movements, anti-religious groups, and
secularism – in defense of conservative Christian values and the so-called (Judeo-)Christian

1
Casanova uses the word Fundamentalists, but acknowledges that the boundaries between Fundamentalists and
Evangelicals have “always been fuzzy and porous”, almost disappearing after the 1970s (1994:162). Since Casa-
nova’s Fundamentalists corresponds to what I in this thesis call Evangelicals, I have chosen to replace his term.

1
heritage. Using, for descriptive purposes, Casanova’s categorization of secularization as three
distinct processes (1994:19-39), we could say that the Evangelicals engaged in this enterprise
adapt to the differentiation of secular spheres from the religious sphere, and oppose the privati-
zation (or marginalization) of religion, fearing the decline of religion as its result.

Purpose and Aim of Inquiry

The purpose of this inquiry is to throw light on the phenomenon of American Evangelical law
firms and their real and potential influence on societal development in the United States and inter-
nationally. My aim is to highlight the role that their argumentation in court may play for this
influence, as well as to examine whether litigation has provided Evangelicals with a tool which
gives them the power that Casanova some 20 years ago concluded they did not have (1994:159-
161)2. In order to do so, I will concentrate on three aspects: the method (litigation), the arguments,
and the consequences. Presbyterian pastor and philosopher Francis Schaeffer’s disappointment
with the failure of Christian lawyers to stem the social changes in the mid-20th century (see
above), may serve as a starting point for my first question: Why did Evangelicals turn to
litigation? The Evangelical law firms did not emerge until the latter third of the 20th century.
Hence I will also examine why it happened at this particular time. Understanding the historical-
social and religio-political context will be essential in this regard. As already indicated, my main
focus will be on the law firms’ arguments, as can be summed up in my second question: How do
Evangelical lawyers present their causes in a (per definition) secular court? Here I will look at
how these lawyers translate their religious and moral causes into a language which may increase
their chances of success. Implicit in this second question is the assumption that religious
arguments per se have little impact on a modern, secular court. However, as I hope to show in my
thesis, the issue is more complex than that. This is not just a question of how to convince a group
of judges to ‘buy’ a certain idea, but the court in turn also needs secular reasons for its rulings.
This important point will become clearer when I present the ideas of Habermas below. Suffice it
here to say that I will examine the law firms’ arguments in and outside the court room, as well as
their influence on the courts’ decisions. My third and final question concentrates on the conse-
quences – actual and potential – of a religious group engaging in cause lawyering: What are the
consequences of this group's use of litigation as a strategy to promote its goals and protect its
interests, compared to other social or political movements? Here too, history and the socio-

2
According to Casanova, Evangelicals did not – despite the warning from their opponents – have the power or
number to pose a threat to the free exercise of religion. They neither desired nor were able to become an estab-
lished church. Further, it was unlikely that they would manage to reestablish the 19 th century’s cultural hegemo-
ny of conservative Protestantism, or the Protestant ethic as the American way of life (Casanova 1994:158-161).

2
political context will be important to gain some understanding. While my aim is not to make
predictions, I find it relevant also to discuss possible future developments.
My inquiry will concentrate on one of the larger nonprofit law organizations, namely the
American Center for Law and Justice (ACLJ), founded by the prominent Evangelical leader Pat
Robertson in 1990. The ACLJ has developed into one of the most influential law firms in the
United States. Its present Chief Council, Jay Sekulow, was named by TIME Magazine as one of
the 25 most influential Evangelicals in America in 2005. With its headquarters strategically
located in Washington DC, the ACLJ has also established affiliated offices in Israel, Russia,
Kenya, France, Pakistan, and Zimbabwe. My main focus will be on the ACLJ’s activities in the
USA, while the law firm’s international efforts will be limited to the European Centre for Law
and Justice (ECLJ), through which the ACLJ also is in Special Consultative Status with the UN.
My choice to limit the inquiry to the American and European offices has largely been determined
by the online availability of court documents, as well as their better developed web pages. Thus,
my inquiry will be limited to the role that Evangelical law firms play in the Western world,
although I do want to stress that their influence also reaches further.

Clarification of Terms
Since the term Evangelical3 is somewhat vague, it needs some clarification from the outset. The
term not only embraces a rather heterogeneous group, cutting across traditional denominational
boarders. Further confusion is added by the fact that researchers often use various terms –
Fundamentalists, born again Christians, conservative Protestants, Religious Right – to describe
the same group, irrespective of the terms’ different meanings. Because conservative is easily
associated with certain political views, many researchers have preferred the term Evangelical,
as opposed to the “mainline” (liberal) Protestant wing. I choose to speak of Evangelical lawyers
for the same reason. This is not to say that these lawyers are not politically conservative. Often
they are, especially when it comes to social issues. I wish, however, to emphasize the religious
aspect of their project. Hence, when I also use the term conservative Protestants, I refer to their
theological position, and not the group’s political views. However, these terms – Evangelical
and conservative Protestant – are not interchangeable. I here follow Woodberry and Smith
using conservative Protestant as a more general term, and Evangelical for “the moderate wing

3
Evangelical was first used as a translation of the German evangelisch, an umbrella term which since the mid-
16th century was linked with various Protestant churches: Lutherans (in particular), Mennonites, and Calvinists.
While evangelisch refers to churches, not theology, the American use of Evangelical implies theologically
conservative. A separate word (evangelikal) was therefore introduced in Germany in the 1960s to describe the
latter (Hillerbrandt 2004:702; Geldbach 2004:714). I here use Evangelical in the American (theological) sense.

3
of [conservative Protestants] which emerged after World War II” (1998:26). Far from being a
homogeneous group, Evangelicals are most easily identified by their adherence to certain
beliefs, such as the authority of the Bible, the atoning sacrifice of Christ, conversion from a
sinful life through a “born again” experience, spiritual transformation, and the importance of
spreading the Gospel (Woodberry and Smith 1998:27-36; den Dulk 2006:201). The develop-
ment of the Evangelical movements, as well as the complexity regarding its constituency, will
be further elaborated in chapter 1.
What, then, is an Evangelical law firm? Here too researchers have used various terms to
the describe the same phenomenon – conservative evangelicalism, the conservative countermove-
ment, cause lawyers in the Evangelical movement, right-wing cause lawyers, neo-conservatives,
New Christian Right, to name some. With the short discussion on Evangelical in mind, it should
be clear that these terms are not synonymous. Some, like the conservative countermovement or
conservative groups, also tend include other fields of conservative cause lawyering, such as
economic and public interest litigation. Again, to avoid confusion with political conservatism, I
will use the term Evangelical law firms. A possible definition, then, could be to say that these
are law firms established and/or run by Evangelicals, as defined above. Many of the lawyers
working for these firms, either as employed attorneys or as affiliated volunteer lawyers, are
Evangelicals. However, the borders are not clear-cut. A simple illustration can be found in the
leadership of the ACLJ. While founder Pat Robertson was a Pentecostal/charismatic Evan-
gelical, the law firm’s first executive director, Keith Fournier, was a Roman Catholic, and the
present leader, Jay Sekulow, is a Messianic Jew4. This, in turn, highlights the importance of
causes as a unifying factor.
The ACLJ lawyers are cause lawyers. Again, we find a term that has been variously
defined by scholars. I follow Scheingold and Sarat’s description of cause lawyers as lawyers
who are committed to pursue certain causes, as opposed to giving legal service to clients. Such
cause lawyering may take a variety of forms, but is primarily characterized by a social and/or
political commitment (Scheingold and Sarat 2004:2-4). A telling example is the Evangelical law
firms’ defense of abortion protesters as a part of their commitment to limit abortion.
One final term that is central to comprehend the influence of Evangelical law firms, and
which therefore should be clarified already at this point, is the concept of cobelligerency (“co-
fight”). The term describes military or political cooperation between parties to fight a common
enemy, the relationship between the parties being not as close as in an alliance. The term was

4
A Jew who believes that Jesus in the New Testament is the promised Messiah of the Old Testament.

4
popularized in the Evangelical movement through Schaeffer’s efforts to stimulate cooperation
on causes without making theological compromises (Strange 2005). Schaeffer’s idea of cobelli-
gerency was central to the establishment of Moral Majority, which brought together people of
various theological views to promote particular goals (Martin 1996:197,204). Moreover, the
strategy has been pivotal to Evangelical law firms, both in and outside the United States. A
good example is seen in the Lautsi case, which will be presented in chapter 5.

A Theoretical Model
In line with the aim of this inquiry, I need a model that can help highlight the role that argu-
ments play for the influence of Evangelical law firms on societal development. For this purpose I
have borrowed some ideas from the German philosopher and sociologist Jürgen Habermas and
the American anthropologist Clifford Geertz. 5 In his discussion on the appropriate role of
religion in the political public sphere6 at The Holberg Prize Seminar of 2005, Habermas takes as
his point of departure the ‘ethics of citizenship’ as described by philosopher John Rawls: in a
secular, democratic state, all citizens are expected to respect each other as free and equal members
of the political community, and to offer each other ‘good reasons’ for their political statements.
All political decisions must be justified in a neutral language that is understandable to both non-
religious citizens and citizens of various faiths, something which excludes the use of religious
reasons in public debates. Rawls’ position has been criticized for placing an undue burden on
religious citizens, since no such division between religion and secular politics naturally exists in
their minds. Since religion plays an integral role in the lives of religious citizens, Habermas
argues that it is unreasonable to expect them to justify their political statements independent of
their religious convictions and worldviews. He seeks to solve this problem by making a distinction.
He agrees with Rawls that only secular reasons can justify political decisions (e.g. laws, court
rulings, decrees, etc.) in the formal public sphere, that is, the political debate at the institutional
level of parliaments, courts, and administrations. Allowing religious arguments here, Habermas
contends, can turn governmental authority into “the agent of a religious majority that asserts its
will while violating the democratic procedure”, the result being repression of the losing secular
minority and people of other faiths (2005:15). However, Habermas proposes to dismiss the
5
I do not include the whole theoretical framework of these authors. I have chosen those parts of their theories
that I find most useful and relevant for the purpose of my study. The model presented here is used independently,
and my conclusions need not correspond with these authors’ own views. I do not include Habermas’ theory of
how the public sphere developed. Rather, the model I draw up is static, and I will use it to highlight central
aspects of US history at various times, regardless of how the ‘public sphere’ was at that particular time.
6
Habermas defined the public sphere (Öffentlichkeit) as a social realm in which public opinion can be formed,
and where all citizens have access to express their opinions. The political public sphere is the part of this sphere
where the “public discussion deals with objects connected to the activity of the state” (Habermas 1974:49).

5
requirement of neutral language from the informal public sphere, that is, from the part of the
political debate which is situated outside governmental institutions. Habermas thus opens up for
the use of religious arguments in the political public sphere, and suggests that these can make
valuable contributions of meaning and identity to society. Nevertheless, to enter the formal public
sphere, these arguments still need to be translated into a language that is equally accessible to all
citizens. Here, Habermas suggests that both religious and secular citizens should share the burden
of translating, something which requires that also secular citizens must be open to the possible truth
content of a religious argument (Habermas 2005:12-17). This final point, however, has limited
relevance for my inquiry since I concentrate on how Evangelical lawyers themselves translate
their arguments. What I borrow from Habermas, then, is the distinction between a formal and an
informal public sphere, along with the idea that religious arguments need to be translated in order
to pass from the informal public sphere – for instance, as expressed on a law firm’s web page – to
the formal public sphere of courts.
To supplement the model sketched out so far, I borrow some thoughts from Geertz’
description of culture. According to Geertz, a culture consists of “socially established structures of
meaning” (Geertz 1973:12). Meaning in this context does not represent a private opinion or idea,
but is something that is public and shared, and therefore essential for communication and inter-
action. To understand a culture, or a part of a culture (such as religion), it is necessary to understand
the meaning behind a symbol (e.g. the crucifix) or an act (e.g. public prayer or citing the Pledge of
Allegiance). As a system of symbols, religion – as well as the debates about religion – must be
understood in their own context (Geertz 1973:10-17, 91-92). To illustrate this, we may think of
how meaningless a Latin cross would be to someone who has never seen one before. A symbol
may, of course, have several meanings, and various individuals and groups in a culture may not
perceive the same message when they are exposed to the same object or act. Symbols are ‘multi-
vocal, manipulable, and ambiguous’, to use anthropologist Victor Turner’s words, and as dynamic
social constructions they may shed meaning or gain new (Turner 1975:146,154-155). This not
only complicates the debate on the proper place of religion and religious expressions in the public
sphere, but is also used as an argument in itself by the parties involved, not least on the religious
side. A good example is how religious objects frequently are portrayed as symbols of national
identity or certain values. In her book Religion in Modern Europe; A Memory Mutates, Grace
Davie describes how buildings, artefacts, and education are important for the transfer of a reli-
gious memory from one generation to another (2000:chap.5,9). Linking this with Geertz’ descrip-
tion of culture, we could talk about a transfer of meaning, or knowledge about meaning. The fear

6
that a break in this transfer will cause religious decline in society seems to trigger Evangelicals to
oppose the privatization of religion, as expressed through their protests against the ban on prayer
and Bible reading from public schools, or their resistance to the removal of public monuments
with Judeo-Christian associations.
What has so far been said about symbols can also be said about words. Like material
artefacts, words are also symbols, and their meaning needs to be shared to enable communication.
Consequently, in a debate between religious and secular actors, difficulties may arise when the
religious actors use a theological language that may be hard to comprehend for secular citizens.
This brings us back to Habermas. While Habermas considers these challenges acceptable in the
informal public sphere – since they are possible to solve through mutual open-mindedness and
cooperation – they are incompatible with a religiously neutral state’s need to justify its political
decisions in a neutral language. However, one question arises from the model that has now been
drawn up: Will a religious cause become less religious if the arguments to justify it are secular?
This question should be kept in mind as my inquiry proceeds.

Material: Legal Briefs, Petitions, and Articles

Evangelical law firms are engaged in a variety of issues (see above). I will look at two fields in
which the ACLJ is at the forefront, namely the fight against abortion, and the protection of public
religious expressions7 (church/state relations). My desire is to make the presentation of the law
firm’s activities and strategies as broad as possible within the limits of this thesis. I therefore
include documents filed by the ACLJ with courts at various levels. As for the United States,
where my focus is on federal laws and the US Constitution, the inquiry is limited to the federal
court system. Decisions made by these courts, especially the US Supreme Court, have much
greater implications for the American society as a whole than various state court rulings. My main
material is the ACLJ’s legal briefs, which represent their argumentation in the formal public
sphere of courts. The exclusion of oral arguments may reduce the full picture of the law firm’s
argumentation, but not the validity of written arguments as ‘translated arguments’. In order to
evaluate the translation of arguments and examine its effects, I will also look at how the law firm
presents the same causes in the informal public sphere. This will, however, receive less attention
than the legal documents. Since a full inclusion of all their published material is not practically
possible, I concentrate on the ACLJ’s web page. More precisely, I look at the law firm’s petitions,
which are invitations to supporters to join letters to the Court, the president, or members of

7
This concept is inspired by Casanova’s ‘public religion’ in the title of his 1994 book.

7
Congress (http://aclj.org/Petitions/List), and on articles written by leading ACLJ lawyers on the
law firm’s blog (http://aclj.org/docket-blog). My choice of legal cases is based on topic and the
availability of court documents online. As for abortion, I will look at the perhaps hottest debate at
the moment: whether or not owners of large secular corporations can be exempted, on religious
grounds, from a federal act which requires all employers to offer their employees an insurance
plan which covers contraceptives, including the contested ‘abortion-pill’. Here I examine all
documents filed by the ACLJ in a case where it represented two Catholic business owners and
their company in two lower federal courts. As for the second issue, public religious expressions, I
will look at one American and one European case. The first involves the public display of a Ten
Commandments monument in Utah, and is chosen because it revolves around an interesting
argument: governmental speech. Here I look at the legal briefs filed by the ACLJ with the US
Supreme Court. The European case involves the display of crucifixes in Italian public schools.
For this case I analyze a third-party letter filed by the ECLJ with the European Court of Human
Rights. To evaluate the translation in this case, I analyze the arguments presented in an article by
the ECLJ Director General for a Vatican newspaper. The article is particularly interesting because
it explains in plain words what the law firm perceives as the ‘real issue at stake’.

Method: Text Analysis

As with symbols (see above), the Evangelical law firms’ activities and arguments can only be
understood in light of their context. Hence I put much emphasis on contextualization, both
when it comes to explaining the rise of Evangelical law firms, and for the presentation of the
legal cases in question. For this I rely primarily, but not solely, on secondary sources. My
analysis of the legal briefs, the petitions, and the various articles has followed the model of
interview analysis as explained in Malterud (2011) and Kvale and Brinkmann (2010). However,
since my material does not represent spontaneous statements, but are more or less carefully
planned expressions tailored for a specific purpose, it would make little sense to look for
‘meaning units’ as with an ordinary interview. My focus has been to identify what kind of
arguments that have been used, how they relate to each other, and whether they center on
particular words or phrases. For each of the two issues (abortion and public religious expres-
sions), I first read the ACLJ’s texts aimed at the informal public sphere. Using coding to identi-
fy the most central themes, I later used these categories as a starting point for reading through
the law firm’s legal briefs. This procedure revealed whether any of the arguments, themes,
words, or phrases had been transferred to the brief, or if they had been translated or replaced by
something else. In the abortion case, the choice of words seemed to play a significant role. I

8
therefore made an additional word search, using Word Navigation Tool. Categories that were of
little use for my inquiry have been left out of the presentations.

Former Research
To my knowledge, there has not been conducted any studies on Evangelical law firms by
historians of religion, apart from a brief mentioning in Vik, Stensvold and Moe (2013).8 Most
research on the topic has been carried out by political scientists, social scientists, legal
scientists, and historians. The attention given to the activity of Evangelical law firms is,
however, relatively small compared to the research on interest group litigation in general. The
first study of the use of courts by interest groups was conducted by political scientist Arthur
Bentley in 1908. Bentley concluded that the US Supreme Court – like the other branches of
government – was receptive to pressure (Epstein 1985:4). As the research on interest group
litigation increased in the 1970s, the focus was primarily on the liberal movements which
dominated the field, such as the civil rights movement and the women’s rights movement.
One of the earliest studies of conservatives and litigation was carried out by Lee Epstein, a
scholar of law and judicial politics, in 1985. At that time, Evangelical lawyers had just begun to
appear as cause lawyers, and they received little scholarly attention. Epstein’s book is interesting,
though, since it traces the history of the emergence of conservative litigation. Research on
conservatives in court was still scarce when political scientist Stephen Brown in 2002 published
his study on the New Christian Right and their strategic use of courts. Here, he touches upon
the field of argumentation as he points to the Evangelical lawyers’ frequent references to the
Free Speech Clause of the US Constitution. Prior to this, studies of liberal movements had
already brought attention to the role that arguments played when trying to bring about legal
change (e.g. Epstein and Kobylka 1992). Another study worth mentioning is law professor
William Eskridge’s extensive analysis of the influence of identity-based social movements on
constitutional law in the 20th century. While his main focus is on liberal movements and how
they translated their social and political arguments into constitutional arguments, he also
includes the reactions of the countermovements (Eskridge 2002). Much of the recent research
involving Evangelical lawyers has focused on their motivations and background (e.g. South-
worth 2008; Hacker 2005; Scheingold and Sarat 2004). This receives limited attention in my
inquiry, but is helpful to understand why Evangelicals turned to litigation. Other major contribu-
tions to this understanding are given by political scientist Kevin den Dulk (2006) and sociologist
William Martin (1996).
8
My search has been conducted primarily in JSTOR, Article First, ATLA, and library databases (Jun-Oct 2013).

9
Content
The question of why Evangelicals turned to litigation is mainly treated in the first two chapters,
which also work as a foundation for the rest of the inquiry. In chapter 1, I present the historical
background of the American Evangelical movement, and show how its complexity grew out of a
similar complexity among conservative Protestants in the 19th century. I explore how the
movement gradually became involved in politics, and eventually litigation, pointing to at least
four important stimuli: influential leaders, liberal social changes, presidential candidates desiring
their votes, and the powerful tool of broadcasting. The rise of Evangelical law firms is further
elaborated in chapter 2, which begins with a presentation of the United States’ founding
documents and the American judicial system. The chapter describes the potential for bringing
about social change through the judicial branch of government, and shows how the Evangelical
law firms have followed the path of strategic litigation pioneered by the civil rights movement,
and successfully used by other liberal movements in the mid-20th century. The last four chapters
concentrate on the ACLJ and its position in society, highlighting the role that the law firm’s
argumentation may play for the Evangelical movement’s influence on the societal development.
In chapter 3, I introduce the ACLJ and its most prominent figures. The law firm’s aim is to
achieve legal protection of certain values and interests, and I will describe its most important
strategies in and outside the courtroom. In chapters 4 and 5, I turn to the law firm’s arguments as
presented in legal briefs and web site publications. I here present the result of my analysis, as well
as the historical-social context of the issues in question. Chapter 4 concentrates on the abortion
issue and looks at the ACLJ’s arguments against the Affordable Care Act’s requirement that
employer sponsored health insurance plans must cover contraceptives, including the so-called
‘abortion-pill’. Chapter 5 presents the arguments of the ACLJ and the ECLJ in defense of public
religious expressions, exemplified by a Ten Commandments monument in a public park in Utah,
and the display of crucifixes in Italian classrooms. In chapter 6, I follow up the rationale for the
translation of the Evangelical movement’s causes into secular or neutral arguments, and show
why it is necessary to understand the ACLJ’s argumentation in light of the Evangelical cause as a
whole. I close the chapter with a discussion on the consequences of a religious group’s use of
litigation to promote its goals and interests. In chapter 7, I provide a brief summary of the main
findings of my study, and some concluding remarks.

10
1 How the Evangelical Movement Went Political
These evangelical Christians may all look alike to the press, but in fact they are very different from each
other. They attend great cathedrals and tiny storefront churches. Some shout and weep and lift their
arms in praise. Others kneel in ordered, liturgical silence. Their biblical translations vary. They cele-
brate the Lord’s Supper in dozens of different ways. … But in recent months evangelicals are finding
themselves more and more united in their concern for the nation’s spiritual and political renewal. When
they pledge their allegiance to “one nation, under God”, they really mean it. … Fortunately it didn’t
take long for these newly awakened evangelicals and their allies to learn that they have to change their
political ways before they can change the ways of the nation.

Pat Robertson, America Dates With Destiny (1986:298-299)

The great diversity among Evangelicals underlines the fact that it is a movement. As indicated in
the introduction, the word Evangelical has been used differently by various researchers, the media
and ordinary people, thus complicating the picture of who exactly this movement comprises.
Surveys have shown that some people who according to established definitions should be
classified as Evangelicals, do not identify themselves as such, while others who do not hold
traditional ‘Evangelical’ beliefs, call themselves Evangelicals (Hackett and Lindsay 2008; Noll
2004:433-434; Woodberry and Smith 1998:25-26). Consequently, the Evangelical movement
might include Christians from almost any denomination, even Roman Catholics9. Evangelical,
then, could perhaps best be described as a term similar to Protestant or Christian; covering a
diversity, yet with something in common. In this chapter, I will show how the complexity of
‘the Evangelicals’ is related to the movement’s history, beginning with a similar complexity
among conservative Protestants in the 18th and 19th century, when great revivals contributed
to the spread of religious piety across denominational borders, and entrusted lay people with a
greater responsibility in the work for God’s kingdom. Following the development of what
eventually became the Evangelical movement, I pay particular attention to how doctrines and
social values caused splits and unity, and to the political and social engagement of the various
groups. While the Evangelical movement that emerged in the 1940s certainly can be seen as a
reaction to the sociopolitical withdrawal of Fundamentalist Protestants in the previous decades, it
would be wrong to consider it as ‘suddenly occurring’. Rather, both groups developed from the
same roots, and the relationship between them is best described as a parallel set of conflicting,
or competing ideas about how to relate to society at large. The pendulum initially seemed to
swing towards a policy of separation and isolation, but the efforts of prominent Protestant
leaders eventually turned it towards a strategy of infiltration. The chapter further examines the
factors that contributed to the boost of Evangelical engagement in politics and social issues

9
According to one survey, 13% of Americans who called themselves Evangelicals were Catholics (Noll 2004:434).

11
from the late 1970s. In addition to the already mentioned change in mentality championed by
influential leaders, three other stimuli seem pivotal: liberal social changes sanctioned by the
government; the recognition of Evangelicals as an influential voting group; and the use of
media to spread ideas.

The Influence from the Great Awakenings

The diversity that characterizes the Evangelical movement today has its roots in a similar diversity
found within some of its most influential predecessors, the Great Awakenings of the 18th and 19th
centuries. These were religious revivals lead by Protestant preachers who sought to restore the
‘true religion of the heart’ to counteract the increasing religious formalism found in various
denominations. The First Great Awakening (c.1720-50) began in New Jersey and spread across
the American colonies as people embraced the message of ministers like Presbyterian Gilbert
Tennent, Puritan Congregationalist Jonathan Edwards and Calvinist Methodist George Whitfield.
Although the revival did not result in a massive growth of Christianity, it gave lay people a more
prominent role in the work of spreading the Gospel (Noll 2011:51-55; Martin 1996:2-3).
Interestingly, the Protestant clergy in the 18th century also engaged in political matters. Unrelated
to the Great Awakening, some ministers, like Congregationalists Charles Chauncy and Jonathan
Mayhew, used their pulpits to criticize the British for their colony policies. But also the Great
Awakening kindled a revolutionary spirit, which spread from the religious to the political realm.
Dissenters, like Baptists, Presbyterians, and Methodists, opposed the established church10, and
later gave their firm support to Thomas Jefferson’s Virginia Statute for Religious Freedom
(1786), which formally separated church and state (Corrigan 2004:168-169). According to
Martin, this unconventional and democratic attitude towards religious authority, coupled with
millennial expectations, fueled the political desire to break free from the British and establish an
independent American republic. The great revival thus increased the popular support for the
American Revolution (Martin 1996:3).
The Second Great Awakening (c.1810-60) followed a period of cooling off of religious
fervor. Again millennial expectations were central, along with an emphasis on sanctification, or
perfection of character. Northern and southern states now seemed to turn in different directions.
While piety, firm confidence in the Bible, and evangelization came to dominate the southern
culture, Protestants in the north invested considerable efforts on social issues, such as temperance,

10
The British Act of Toleration (1689) gave a limited religious liberty to Protestants outside the Church of
England, which had been the state church of Virginia since the first settlers arrived in 1607. In Virginia, the
dissenters also had to pay taxes to support the Anglican clergy (Virginia Memory 2013).

12
abolition of slavery, suffragism, and elimination of war, poverty, and various immoralities. These
social movements were related to the belief that a positive transformation of society could bring
about the Millennium, a period of 1000 years of peace on earth prior to the second coming of
Christ11 (Corrigan 2004:170; Woodberry and Smith 1998:27; Martin 1996:3-4). By the mid-19th
century, America was on its height as a Christian nation. The congregations were, however,
seldom directly involved in politics. Most members considered local congregations and voluntary
associations as the main tools for moral improvement of society (Witte 2004:303).
While dominated by Protestantism, American culture in the 19th century was not uni-
form. From the very outset the American colonies had been religiously and ethnically pluralistic
(Noll 2011:47). The First Great Awakening divided many Protestant denominations into two
groups: traditional ‘Old Lights’, and evangelical ‘New Lights’. Later, the Second Great
Awakening split the traditional Reformed, Lutheran and Anglican denominations further. At the
same time their hold on the American population decreased as both revivals saw a considerable
growth in size and influence of Baptist and Methodist churches (Witte 2004:302). Notwith-
standing the many splits, there were also attempts to urge cooperation. Evangelical Protestants
from various countries and denominations tried to unite to promote their common cause. In
1846 a number of clergymen gathered in London to establish a global Evangelical Alliance. The
project was headed by the British, who wished to counter the efforts of the Oxford Movement to
make the Anglican Church more Catholic. Hence most of the delegates were British (84%). The
rest were primarily from the United States (8%) and Europe. The project partly failed, however,
due to disagreement between British and American delegates over the issue of slavery. Instead,
the Evangelical Alliance remained a loose network of independent national and regional allian-
ces (Hillborn and Randall 2001). There were still numerous grounds on which Americans could
cultivate interdenominational cooperation. In addition to the social causes already mentioned,
these included the American Bible Society (1816), the American Sunday School Union (1824),
foreign mission, and Bible institutes – such as the Moody Bible Institute in Chicago, an influential
training center for conservative Protestants established in 1886 by the non-denominational
evangelist Dwight L. Moody (Blumhofer 2004a:726-731). American Protestants in the 19th
century, then, were indeed concerned about the societal development, but they did not
systematically utilize the political system to increase their influence, as would the later
Evangelical movement. Neither was there a pressing need to do so, since the culture was still
dominated by Protestant views and values.

11
This belief is known as post-millennialism.

13
The Fundamentalist Isolation after the Scopes Monkey Trial
While conservative Protestants were actively engaged to influence societal development in the
late 19th and early 20th century, the decision of a large group to isolate itself in the 1920s could
have brought religion to a marginalized position in the American society, similar to the privati-
zation that has taken place in many European countries (see e.g. Casanova 1994:213-215). Such
a development was a ‘historical option’, to borrow Casanova’s term (1994:215), not passively
resulting from the structural changes in a modern society, but, in this case, from an active
choice to back off. This development, however, would later be counteracted by a different
choice made by the new Evangelical movement.
Prior to the Civil War (1861-65), disagreement about slavery had split Baptists, Presbyter-
ians, Methodists, and Anglicans into northern and southern denominations (Corrigan 2004:171).
The north-south divide was enhanced by a similar geographical split in response to two of the
greatest challenges to the conservative Protestants in the 19th century: the historical critical
approach to the Bible (‘higher criticism’) and Darwinism. While the southern denominations
opposed both, the northern were divided (Woodberry and Smith 1998:27). Here, theological
liberals promoted the critical approach to the Bible, and adapted their world view to the
Darwinian theory. Conservatives thus experienced these challenges both from the inside and from
the outside. The internal struggle was most severe in the churches and seminaries of Presbyterians
and Northern Baptists (Martin 1996:13-15). In 1881, theologians at the Presbyterian Princeton
Seminary developed a doctrine which stated that the Bible was infallible in its original autograph.
This doctrine of biblical inerrancy12 had considerable influence on other denominations, and was
paramount in the rising Fundamentalist movement (Trollinger 2004:345; Ellingsen 1988:74). None-
theless, the conservatives lost the battle for denominational and seminary control. As liberalism
prevailed at Princeton and various leading Baptist seminaries in the 1920s, conservative theologians
left to create their own institutions (Trollinger 2004:347-348; Martin 1996:16).
In 1919, conservative Protestants from various denominations established the World
Christian Fundamentals Association (WCFA) desiring to fight modernism and promote the true
faith. With World War I fresh in mind, leading figures like Baptist minister William B. Riley
declared that the reason for Germany’s destruction was found in its embracement of higher
criticism, liberal theology and Darwinism. The same could happen to the USA, he claimed, if
the modern trends were not reversed (Trollinger 2004:347-348; Martin 1996:11). The following

12
While many Evangelicals now distinguish between inerrancy [in all matters] and infallibility [in what regards
salvation] (Olson 2004), the Princeton theologians used both words to describe their position: All original manuscripts
were written under divine inspiration and rendered true historical events (Hodge and Warfield 1881).

14
year, the weekly Baptist Watchman Examiner suggested that those “who still cling to the great
fundamentals and who mean to do battle royal for the faith” should be called Fundamentalists
(quoted in Sweeney 2005:166). The inspiration for the term was found in a series of booklets
called The Fundamentals: A Testimony to the Truth, published in 1910-15 by a press associated
with the Moody Bible Institute. These publications contained high-quality essays opposing
higher criticism, liberal theology, Darwinism, democratic socialism, women’s demands, Catholics,
and Mormons, among others (Sweeney 2005:165; Corrigan 2004:175; Martin 1996:10-11).
Although their direct impact was rather limited, The Fundamentals had great symbolic value for
the new movement taking form after World War I (Ellingsen 1988:51). The ‘great fundamentals
of faith’, to which these conservative Protestants clung, included biblical inerrancy, the virgin
birth, and Christ’s divinity, substitutionary atonement, bodily resurrection, and imminent return
(Martin 1996:11; Noll 2004:422).
Outside the denominations the challenge from Darwinism found an arena in public
schools. Fundamentalists joined the WCFA and the former Secretary of State and three-time
presidential candidate William Jennings Bryan in campaigns to make state legislatures ban the
teaching of evolution in schools. Some states passed restrictive laws, starting with Oklahoma in
1923, and soon followed by other southern states. In 1925, Tennessee banned the teaching of any
theory contradicting the biblical story of creation (Trollinger 2004:348; Ellingsen 1988:90-91).
Although Governor Austin Peay publicly declared that he doubted the law would ever be an
active statue, this Butler Antievolution Act soon caught the eye of the whole nation. In a
newspaper advertisement, the American Civil Liberty Union (ACLU) called for volunteers to test
the constitutionality of the new law, offering to cover the costs. Biology teacher John T. Scopes
accepted the challenge, even though he was not sure if he had actually taught evolution himself,
being only a substitute (Gatewood 1969:331-341). Conducted in the small city of Dayton in July
1925, the so-called ‘Monkey Trial’13 was given a surprisingly vast attention in the media. The

13
The ban on evolution and the Scopes Trial has frequently been portrayed as an attack on science, and a battle
between tradition and modernity. This depiction fails to take into account some other central issues involved. Long
before the trial, Bryan, a progressive social reformist, expressed his concern that Darwin’s theory was used by pro-
ponents of eugenics – the idea that human evolution could be furthered by promoting good genes and/or eliminating
bad genes – to justify “the strong crowd’s killing of the weak”. By the time of Scopes Trial, several states had
enacted sterilization laws, aiming at ‘unfit’ individuals like the mentally ill and retarded, criminals, and epileptics.
The eugenic ideal was promoted by the biology textbook used by Scopes, A Civic Biology by G. W. Hunter. Here
the Caucasian race, i.e. the “civilized white inhabitants of Europe and America”, was presented as the highest type
of humans, and the book mentioned separation of sexes in asylums and other measures as solutions to prevent the
transmission of low and degenerated genes. Another issue involved in the Scopes Trial, was the free speech of
public teachers. During and after World War I, many states required their teachers to sign loyalty oaths, which
limited their academic freedom. While the anti-evolution laws were a principal issue, this freedom of speech was
the main reason for the ACLU’s involvement (Magat 2006:542-547; Davis 2005:254-255).

15
ACLU lawyers and the press portrayed the Fundamentalists and their famous spokesman Bryan
as rural ignorant bigots. Although Scopes lost the trial14, the show caused great harm to the public
reputation and popularity of Fundamentalism. In subsequent years all states abolished their anti-
evolution laws. This defeat coincided with the Fundamentalists’ losing battle for influence in their
churches and seminaries. Consequently, they withdrew and established their own denominations,
educational institutions, and mission organizations, which all flourished on a local level (Trollinger
2004:349; Martin 1996:14-15; Ellingsen 1988:91-93).

The New Evangelical Movement of the 1940s

After the failure of the 1920s, some Fundamentalists came to emphasize separation from those
who did not concur with their ‘fundamentals of faith’. In 1941, Carl McIntire championed the
creation of a national coalition of Fundamentalists, the American Council of Christian Churches, to
oppose the liberals’ Federal Council of Churches. McIntire, who had left the Presbyterian Church to
establish the Orthodox Presbyterian Church, which he later left to establish the Bible Presbyterian
Church, promoted strict separation, even from those who theologically concurred, but cooperated
with non-Fundamentalists (Ellingsen 1988:98-99). However, not all Fundamentalists agreed on
the policy of separation. Some, like J. Elwin Wright and Harold J. Ockenga, wanted to reengage
with society and promote the ‘fundamentals of faith’ in a more positive manner. Already in 1929,
Wright had launched a conservative coalition, the New England Fellowship, and he continued to
work for a national alliance. In 1942, Wright and other Fundamentalists who disagreed with
McIntire’s separatism, established the National Association of Evangelicals for United Action
(now: NAE). To distance themselves further from the separationist Fundamentalists, they chose to
refer to themselves as neo-Evangelicals, later shortened to Evangelicals, thus trying to establish a
direct link of identification with the Evangelicals of the 19th century (Trollinger 2004:350; Martin
1996: 22-23; Ellingsen 1988:97-102). The Evangelicals criticized the separationist Fundamenta-
lists for their lack of social engagement. Rather than isolation, they would themselves employ the
strategy of “infiltrating” society and denominations (Ockenga cited in Ellingsen 1988:100). The
Evangelicals’ idea of a comprehensive and active strategy can be illustrated by the following
statement by Carl F. Henry, one of their most influential theologians:

If historic Christianity is again to compete as a vital world ideology, evangelicalism must project a
solution for the most pressing world problems. It must offer a formula for a new world mind with
spiritual ends, involving evangelical affirmations in political, economic, sociological, and educational
realms, local and international. (Henry 1947:65)

14
In 1927, the appellate court upheld the antievolution act, but reversed the Dayton court’s decision as the fine of
$100 was too severe. It thus prevented further appeal of the case to the Supreme Court (Gatewood 1969:334).

16
We could say, then, that the idea of direct involvement in politics and other public arenas – as a
part of the Evangelical mission – was worked out in the 1940s, although several years were to
pass before its fruits became visible. Meanwhile, Evangelicals made use of a powerful tool
which indeed opened up the American society to their voice: the radio. But also in this field
they had to fight for their position. In the early 1940s, Evangelicals bought considerable airtime
from national radio networks. New regulations, supported by the Federal Council of Churches,
were introduced in 1943, providing free airtime to the mainline churches as a public service,
while forcing Evangelicals off the air. The subsequent year the NAE formed the National Reli-
gious Broadcasters to promote the cause of Evangelical media. Their lobbying – which could be
viewed as a forerunner to their later political engagement – brought success, and in 1949 religious
broadcasters were again allowed to buy airtime (NRB 2013). The following decades, parallel to
a more liberal development of the American society, the radio became a central tool to build up
unity among Evangelicals and to spread their message across the nation.

Action to Influence the Destiny of the Nation

The 1980s has been described as the decade when Evangelicals entered the American political
arena (see e.g. Simpson 1994:291; Casanova 1994:3). In her essay, Imagining the Last Days: the
Politics of Apocalyptic Language, cultural anthropologist Susan Harding points to a possible rela-
tionship between the political engagement of Evangelicals and a shift in their view on the future.
Although their beliefs have always shown great variation, the 1980s seems to reveal a new narra-
tive (Harding 1994:67-71). The narrative in question is the understanding of the last days of earth’s
history, as related to the second coming of Christ. In the late 18th century, as well as most of the 19th
century, many American Protestants believed that a kingdom of peace and prosperity – the so-called
Millennium15 –would soon be established on earth. The kingdom, which was to last for 1000 years,
was seen as a fulfilment of Bible prophecies. As Jesus was expected to return after the 1000 years,
this understanding of the future events is often spoken of as post-millennialism (Trollinger
2004:346; Beam 1976:182). As mentioned earlier, it was the belief that a positive transformation
of society could bring about the Millennium which inspired many Protestants in the 19th century
to engage in social issues, like temperance and abolition of slavery (see above). An alternative view
of the future events is that the second coming of Christ will take place before the 1000 years. This
view is known as pre-millennialism, and took over as the dominant understanding among Ameri-
can Protestants after the Civil War (Harding 1994:57).

15
The word ‘millennium’ does not occur in the Bible, but a period of 1000 years is mentioned several times in
the Book of Revelation (chapter 20).

17
 While pre-millennialism has old historical roots, a new version of this teaching entered
America when John Nelson Darby, a leading member of the British Plymouth Brethren16, travel-
led to the northern states in the 1860s and 70s to spread his theory of ‘dispensational pre-millenni-
alism’. According to Darby, history is divided into several dispensations, or eras, each following a
distinct and divinely fixed scheme ending with a judgment, like the flood of Genesis. The present
dispensation, Darby claimed, was characterized by increasing apostasy in institutional churches
and perversion of society; the true Christians should therefore separate from it all and wait ‘passive-
ly’ for the secret coming of Christ17. Darby’s theory was widely accepted, not least among conser-
vative Baptists and Presbyterians. In the early 20th century, it became dominant thanks to the
widespread use of the Scofield Reference Bible (1909), a study bible filled with dispensationalist
comments. Darby’s theory thus became highly influential on the Fundamentalist’s policy of
separation and retreat from society (Trollinger 2004:346; Ellingsen 1988:63-65,81).
Since the last decades of the 19th century, pre-millennialism – in various forms – has
dominated the end time understanding of American conservative Protestants. In her essay, Harding
argues that new narratives in the 1980s gave Christians an active role in influencing future events –
somewhat similar to the post-millennial understanding of the 19th century, yet without letting go of
the pre-millennial scheme. While dispensationalist sermons and publications prior to 1980 portrayed
global events as signs that the end was near, leading Evangelicals in the 1980s increasingly pointed
to the need for political action to avoid God’s judgment of the nation (Harding 1994:67-71). Action
was, in other words, seen as a means to influence the destiny of America, as can be illustrated by the
warnings of bestselling author Tim LaHaye in 1980, that the nation would be destroyed “unless
Christians are willing to become much more assertive in defense of morality and decency than they
have been during the past three decades” (quoted in Harding 1994:69). However, rather than as the
cause of political engagement, I suggest this change in narrative is better understood as a ‘tool’ em-
ployed to mobilize ordinary church members to engage in politics, or as a part of a larger religious
call worked out by influential Evangelical leaders. Although there was an increase in Evangelical
rhetoric calling for political engagement in the late 1970s and 1980s (see also Southworth 2008:25-
26 and Martin 1996:195-198), the real shift in mindset did, as we saw, take place earlier, in the
1940s, as the new Evangelicals sought to distance themselves from the separationist Fundamenta-

16
The Plymouth Brethren was a British movement established in the 1820s by Darby and others who had left the
Anglican Church because of its formalism and ecclesiasticism (Ellingsen 1988:62).
17
According to Darby, the true Christians will one day be raptured and taken to heaven. Meanwhile the
remaining people will experience seven years of tribulation under the reign of the so-called Antichrist. After the
seven years, Jesus will return together with the saints to establish the Millennium on earth, centered around
Israel, the holy land (Trollinger 2004:346; Ellingsen 1988:62-63).

18
lists and pursue a strategy of ‘infiltration’. The boost of political and social engagement in the late
1970s and 1980s was a result of major changes that had taken place in the American society after
World War II. Evangelicals felt that politicians and courts not only approved, but also contributed to
the escalating immoralities they perceived around them (Martin 1996). However, the mobilization
of Evangelicals into politics was not only the result of a desire to have their voice heard and to
change the development to avoid God’s wrath. Evangelicals were also ‘pulled into the game’ by
politicians with presidential ambitions and influential preachers with strong opinions.

A Call to Involve in Politics

The split between Fundamentalists and Evangelicals was enhanced by the work of the most
prominent Christian leader in the mid-20th century, evangelist Billy Graham. In 1949, Graham,
a Southern Baptist minister and then leader of the flourishing Youth For Christ movement, lead
a revival in Los Angeles. In line with the political fear of the day, Graham warned against the
dangers of Communism, and claimed that he could see “the judgment hand of God over Los
Angeles” because of the communist influence in the city (quoted in Martin 1996:29). Further, it
was the prayers of God’s people that had saved America from the destructions of World War II.
The media attention Graham received gave him a national breakthrough. On a crusade in South
Carolina the following year, Graham was invited by the governor to address state legislature
and several high-school assemblies. From then on he continued to mingle with leading politicians.
In 1952, he was invited by congressmen to hold a crusade in Washington, and a fresh act of
Congress allowed him to conduct the first religious service ever on the steps of the Capitol in
front of some 40.000 attendants (Martin 1996:25-31). By then Graham had already taken the
steps to engage in politics. Christians, he said, would “vote as a block for the man with the
strongest moral and spiritual platform, regardless of his views on other matters” (quoted in
Martin 1996:31). While careful not to give a too explicit candidate endorsement, Graham used
his influence to mobilize supporters for conservative candidates, like Dwight D. Eisenhower
(1952/56) and Richard Nixon (1960/68/72). Graham’s support was helpful. In addition to his
implicit favor, Graham gave Nixon advice on how he could attract Evangelical voters by
attending church and using more Bible quotes in his speeches. Nixon, on his side, knew how to
exploit the potential. He invited Evangelical leaders to the White House, and consciously used
prayer breakfasts and sponsored Sunday services to achieve his political goals (Martin
1996:99,145-147). While Evangelicals by and large supported Graham, his cooperation with
non-Fundamentalist Christians, even liberals, made him unpopular among separationist Funda-
mentalists (Ellingsen 1988:103-104).

19
 The election of John F. Kennedy (1960), the first Roman Catholic president of the
USA, and the Supreme Court’s ban of prayer and Bible reading in public schools (1962/63)
worked as catalysts for conservative Protestants’ engagement in politics. During the 1960
campaign, Graham, Ockenga and other Evangelicals expressed concern that Kennedy, in fear
of excommunication, would show greater allegiance to the Vatican than to the USA. With a
small margin Kennedy nevertheless defeated Graham’s favorite, Nixon (Martin 1996:47-52).
In the 1964 election, Republican candidate Barry Goldwater mobilized conservative Christian
support by blaming the Supreme Court’s ban on prayer and Bible reading for the moral decay
of society (Martin 1996:86). After the Watergate scandal (1972), which left the whole nation
in disappointment and political distrust, Evangelicals found a new representative for their
values in Democrat candidate Jimmy Carter, an active layman Baptist. Although he did not
talk much about religion and seldom quoted the Bible, Carter openly confessed to be an
“Evangelical” and a “born-again” Christian. To the mainstream media this represented some-
thing new, and the vast attention now given to the Evangelicals put them on the political map.
Evangelical organizations actively supported Carter’s candidacy by distributing information
on how to vote and encouraged ministers to get involved. While initially a popular president,
Carter’s support among Evangelicals dropped when they found his politics to be more liberal
than expected. His support for the Equal Rights Amendment (ERA), which forbade discrimi-
nation on account of sex, was perhaps most offensive as Evangelicals considered it harmful to
the traditional family. However, largely due to opposition from women of the political and
Religious Right, the ERA was never ratified by enough states to be amended to the Constitution
(Martin 1996:145-162).
In the late 1970s abortion emerged as a major Evangelical concern. The Christian Action
Council18, which was established in 1975 with assistance from Billy Graham, Presbyterian pastor
Francis Schaeffer and pediatrician C. Everett Koop, began to lobby Congress to restrict abortion.
The greatest impetus to Evangelical pro-life involvement came four years later, with Schaeffer
and Koop’s book and film Whatever Happened to the Human Race?, which plainly portrayed
abortion as a publicly sanctioned practice of mass murder (Martin 1996:156,239). Since then the
anti-abortion stance has navigated Evangelical votes, together with anti-homosexual politics, pro-
family values, and the support of state autonomy rather than federal control (Wogaman
2004:290). Republican Ronald Reagan long seemed to represent the Evangelical cause. His

18
In the 1980s, the organization changed its name to Care Net. It now represents a network of more than 1000 preg-
nancy centers across the US, which offer support to pregnant women as an alternative to abortion (Care Net 2014).

20
presidency, however, gave few practical results. A Human Life Statute bill received little attention
from the White House and failed to pass through Congress, and Reagan’s proposed school prayer
amendment came 11 votes short of the necessary 2/3 majority. Evangelicals were disappointed.
Reagan’s Supreme Court nomination of Sandra Day O’Connor – a liberal minded pro-abortion,
pro-ERA judge – only made it worse (Martin 1996:226-235).
Mapping the stimuli that motivated Evangelicals to take political action, the influence of
Presbyterian pastor Schaeffer should not be ignored. According to Schaeffer, secular humanism –
which he described as the antithesis of Christianity – had since the 1940s become dominant in the
USA, increasingly affecting all parts of society. Most importantly, it controlled government and law,
which had thus become “vehicles for forcing this view (with its natural results) on the public”
(Schaeffer 1981:135). Schaeffer therefore urged Evangelicals to enter the public arena to change
the course of the nation. One who responded to the call was Jerry Falwell, who on Schaeffer’s
advice used his influence as a TV-evangelist to mobilize more Evangelicals (Martin 1996:197). In
line with Schaeffer’s idea of cobelligerency – cooperation on specific goals despite theological
differences – Falwell would later describe his Moral Majority as “a political organization, not a
religious one”, which included Jews, Catholics, Protestants, Mormons, and “even non-religious
people who shared our views on the family and abortion, strong national defense, and Israel”
(quoted in Martin 1996:204). However political, in light of Schaeffer’s ideas it is difficult to con-
sider the Moral Majority as anything but part of a religious project. While influential in the elections
of Reagan, the Moral Majority dissolved in the 1980s due to lack of a solid grassroots base. In
1988, a new demonstration of the sincere ambitions of Evangelicals for political influence was seen
in minister and broadcaster Pat Robertson’s presidential campaign. Although defeated, Robertson’s
candidacy mobilized even more Evangelicals and gave rise to the Christian Coalition, one of
America’s most influential conservative Christian lobby groups (Trollinger 2004:351).

A Call to Involve in Litigation

The increased visibility of Evangelicals in the political arena in the 1980s soon caught the
attention of both researchers and journalists (see e.g. Epstein 1985:xi and Casanova 1994:3). Far
less consideration, if any, was given to a related and simultaneously emerging phenomenon: the
Evangelical law firms. However, more recent studies indicate that the earliest research on the
Evangelical movement’s political influence overestimated its impact (see e.g. Brown 2002:3-4); it
turned, to recall the words of Casanova, a “well-organized, vociferous minority” into “a threatening
majority” (1994:161). While the movement’s size and impact may have been exaggerated, it was
nevertheless at this time Evangelicals began to experiment with litigation as a tool to influence

21
society. By then, the effectiveness of litigation was widely recognized, as can be illustrated up by
this statement made by later Supreme Court Justice Lewis Powell in 1971: “[T]he judiciary may
be the most important instrument for social, economic and political change” (quoted in South-
worth 2008:15). The use of courts was, in other words, ‘in the air’.
Just as the early Evangelicals had criticized the Fundamentalists for their lack of social
engagement, Schaeffer blamed the Christian lawyers for being silent when the great shifts took
place in society from 1940-70. Many of these changes were related to controversial Supreme
Court decisions, such as the ban on prayer and Bible reading in public schools. According to
Schaeffer, the secular humanist worldview had resulted in a relativism that pervaded the laws of
the nation; there was no universal standard19 to right and wrong. As the clearest illustration of this
“arbitrary sociological law”, he pointed to a 1973 Supreme Court case in which abortion had been
declared a constitutional right (1981:48). In Schaeffer’s view, both the law and the courts had
become “the vehicle to force this total humanistic way of thinking upon the entire population”
(1981:49). Christian principles and values were, in other words, under attack, and it was the duty
of the Christian lawyers to defend them. Also other voices called for Evangelicals to engage in
courts. Editorials in Christianity Today, a magazine founded by Billy Graham in the 1950s,
blamed Evangelicals for their apathy in the abortion battle and urged them to stand up and speak
out (Southworth 2008:25). Soon many did, and new Evangelical law firms were established in
response to the call (den Dulk 1006:208).
As has been shown in this chapter, the Evangelicals’ desire to influence society ‘for
the better’, as well as an active engagement to do so, was not novel. Rather, it can be seen as a
continuation of what various Protestant groups had done since the founding of the American
republic. Neither was it novel to work for legislation to support certain principles or traditions
– as can be illustrated by the 19th century’s prohibition movement (see e.g. Munger and
Schaller 1997:148), or the Fundamentalists’ efforts to ban the teaching of evolution from
public schools prior to the Scopes Trial (see above). What was new, was the establishment of
professional Evangelical law firms, and a widespread and systematic use of courts to protect
and promote certain interests, or causes. However, we may still ask why the Evangelicals
turned to litigation. This will be explored in the next chapter.

19
For Schaeffer and other Evangelicals, the only valid standard to distinguish between right and wrong was
found in God’s word, which in this case naturally represents the Evangelical interpretation of it.

22
2 Influencing Law Through Litigation
The Constitution may be what the Supreme Court says it is, but a Supreme Court opinion means, for the
moment at least, what the district judge says it means.

Jack W. Peltason, Fifty Eight Lonely Men (quoted in Brown 2002:92)

Laws regulate social interaction and relations between human beings. As such they are
important means of protection, for instance of liberties, values, and other interests. Moreover,
they provide a foundation for sanctions and are thus powerful tools to limit – or eliminate –
actions which work against those liberties, values, and interests. The present chapter focuses
on the use of courts as a way to influence law. This avenue involves not only the interpre-
tation of already existing laws, but, in an indirect way, also the entry of new laws into society.
The efficiency of courts in this regard is related to the power of judicial review, which is the
power of courts to declare an act unconstitutional. I begin the chapter by giving a short
presentation of the most important official documents written in the decades between the two
Great Awakenings: the Declaration of Independence and the US Constitution. While these
were political documents, I will concentrate on their religious aspect. I will then explain the
rationale for the division of federal powers into three distinct branches, having a particular
focus on the judicial branch20, which – in the context of my inquiry – is the main arena in
which the Evangelical law firms fight their battles. However, the judicial branch alone is
neither sufficient nor perceived as sufficient for the purpose of bringing about major social
changes, or to prevent them from taking place. Accordingly, the Evangelical approach at large
can be described as ‘holistic’ – holistic here referring to the adoption of strategies which
approach all three branches of government, either directly (e.g. through engagement in
political elections, judicial nominations, and litigation) or indirectly (e.g. by influencing the
masses through the media). Having explained how the judicial system works, I turn to the use
of litigation by interest groups as a means to bring about social change. While litigation was
utilized by a few groups already in the late 19th century, it was the civil rights movement21 of
the early 20th century that pioneered the strategic approach which would not only be adopted
by other liberal movements in the mid-century, but later also by various conservative groups,
including the Evangelicals. Hence, the Evangelicals’ turn to litigation can only be properly
understood in light of the liberals’ use of litigation: not only did they adopt a strategy worked
out by liberal groups and proven to be efficient, but many of the social changes which the
20
As my inquiry is limited to federal courts, I will not include the various state court systems or their distinct
constitutions in this presentation.
21
I here refer to the social movement that aimed at ending racial segregation and discrimination in the USA.

23
Evangelicals mobilized to counteract had come as a result of the liberals’ litigation. The
chapter will further show how the strategic use of courts, as well as related strategies, have
been adopted and applied by Evangelical law firms.

The Religious Aspect of the Founding Documents

Historian Simon P. Newman (2007:581) has characterized the stunned comments in media on reli-
gion’s central role in the re-election of George W. Bush (2004) as “ahistorical and flawed”. Evange-
lical Protestantism was present and influential from the very beginning of the nation, and it is

only comparatively recently that church and state have been separated in any meaningful or effective
fashion. Until the twentieth century blasphemy remained a crime that was punished by American courts,
and prayer and other religious activities were deeply embedded within the American school and
educational system (Newman 2007:584-585).

What some commentators depicted as a new fusion of religion and politics in 2004 was
instead, as Newman sees it, “as old as the republic itself” (Newman 2007:589,597).
God, religion and faith are highly present in several of the documents written by the
founders of the American republic (see e.g. Bauszus 2009). Far from being theological documents,
they nevertheless refer to ‘God’ and ‘the Creator’ as a reality. The Declaration of Independence
(US 1776), drafted by Thomas Jefferson, speaks of “nature’s God” and points to the ‘self-evident
truths’ that “all men are created equal [and] are endowed by their Creator with certain
unalienable Rights”, which include “Life, Liberty and the pursuit of Happiness” (my italics). The
role of a human government is to secure these rights. The Constitution (US 1787), on the other
hand, contains no such reference to the divine or a creator. The only mention of religion is found
in Article VI, which – in addition to binding both state and federal officials by oath to uphold the
Constitution – declares that “no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States”. In addition, an indirect trace of religion if found
in Article I, §7, which excepts Sundays from the ten days given the president to return a bill
presented to him by Congress, and the reference to ‘the Year of our Lord 1787’.
To some, the establishment of a federal government seemed threatening. While support-
ers of the Constitution (the Federalists) held that the power of the new government was too
limited to pose any threat to the rights of individuals or the distinct states, most of which already
had their own bill of rights, opponents (the Anti-Federalists) were not convinced, and called for
the protection of specific liberties (NARA 2013). Politician James Madison, known as ‘the
Father of the Constitution’, initially saw no such need. He changed his mind, however, and in a
letter to a Baptist minister he explained that it was his “sincere opinion that the Constitution
ought to be revised” to include “the most satisfactory provisions for all essential rights,
24
particularly the rights of conscience in the fullest latitude” (quoted in Bauszus 2009:337). In
Virginia, Madison had engaged in the battle against establishment of religion. Writing against
‘A Bill establishing a provision for Teachers of the Christian Religion’ – which he called “a
dangerous abuse of power” – Madison quoted the Virginia Declaration of Rights (1776), which
stated that “religion or the duty which we owe to our Creator and the manner of discharging it,
can be directed only by reason and conviction, not by force or violence” (Madison 1785:§1). An
authority which “can establish Christianity, in exclusion of all other Religions”, Madison
argued, “may establish with the same ease any particular sect of Christians, in exclusion of all
other Sects” (1785:§3). As a result of this protest, the General Assembly of Virginia enacted
Thomas Jefferson’s bill for religious freedom, which – again with a reference to Almighty God
who “hath created the mind free” – stated that

no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever,
nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer
on account on his religious opinions or belief; but that all men shall be free to profess, and by argument
to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or
affect their civil capacities (Jefferson 1786).

When Madison later drafted the Bill of Rights, the amendments which were added to the Con-
stitution in 1789 “in order to prevent misconstruction or abuse of its powers”, the Virginian
stand was echoed in the 1st Amendment’s prohibition of governmental favoring of any parti-
cular religion, and its interference with people’s practice of the religion of their choice:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to
assemble, and to petition the Government for a redress of grievances (Amend.1, my italics).

This limit to federal power was later expanded to include the various state governments:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws (Amend.14 (1868), §1, my italics).

The Separation of Powers, and the Power of the Judiciary

Prior to the federal Constitution of 1787 only two states, Virginia and North Carolina, had
constitutionalized an independent judicial branch (Gerber 2011:67). The rationale for the
provision, as explained by Madison, was to prevent abuse of power: “The accumulation of all
powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or
many, and whether heredity, self-appointed, or elective, may justly be pronounced the very
definition of tyranny” (Madison 1788a:301). The federal Constitution assigned all legislative

25
powers to a Congress consisting of two chambers; a Senate and a House of Representatives
(art.I, §1). The executive power was assigned to the president (art.II, §1), and the judicial
power to “one supreme Court, and in such inferior Courts as the Congress may from time to
time establish” (art.III, §1). The first Congress established three inferior judicial districts, a
northern, a central, and a southern. As the nation grew, the number was expanded. Today the
federal court system includes 94 district courts22, staffed by 677 judges. In 1891 Congress set
up an intermediate level of nine courts to reduce the burden of appeals to the Supreme Court.
The now twelve circuit courts of appeals are staffed by 179 judges. Most cases today (>98%)
begin in state courts, with some 34 million cases filed every year. Most, however, are
resolved before they reach trial (pretrial settlement). Less than 10% of the cases that enter the
legal system reach the appellate level, and less than 1% of these again reach the US Supreme
Court. The chances of getting a review by the Supreme Court, in other words, are minimal
(Irons 2012:7-1123). The Supreme Court has original jurisdiction (i.e. works as a trial court)
in disputes between states or between a state and the federal government. It has appellate
jurisdiction to hear cases brought to it from federal appellate courts and from state supreme
courts when federal law is involved (U.S.Const., art.III, §2; Baum 1995:9-12). Thus, disputes
that involve the federal Constitution – as is typically the framing of the major Evangelical
causes – are fought in the federal court system.
The Founding Fathers tried to prevent abuse of power by assigning governmental powers
to distinct branches24. In addition they provided a system of ‘checks and balances’, in which the
branches were made dependent on each other (see Madison 1788a:308-313; 1788b:320-323):
Congress is authorized to create federal courts and decide their jurisdiction. The president
nominates the judges, and the Senate confirms them. Congress can impeach the justices and the
president, and the Senate and the House can veto each other’s bills. The president can veto
congressional bills, but his veto may be set aside by a two-thirds majority in Congress. The
Supreme Court, in turn, has the power of judicial review, that is, it may declare presidential acts
and congressional laws unconstitutional (U.S.Const., art.I-III, VI). In the late 1700s, Anti-
Federalists expressed concern that the power of judicial review would make the judiciary superior
to the legislature. Defending the arrangement, Alexander Hamilton wrote that the judiciary would
“always be the least dangerous to the political rights of the Constitution” since it has “neither force

22
Every state has at least one federal district court, each belonging to one of the twelve regional circuits.
23
The numbers of judges in district and appellate courts are adapted to information provided by the United
States Courts, “Federal Judgeships”: http://www.uscourts.gov/JudgesAndJudgeships/FederalJudgeships.aspx
24
The idea of separating the governmental powers into three branches – a legislative, an executive, and a judicial
– was inspired by the French political philosopher Charles de Secondat Montesquieu (Theobald 2006:316).

26
nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even
for the efficacy of its judgments” (Hamilton 1788a:465). The Evangelicals’ ‘holistic’ approach (see
above) shows that they have recognized this dependence. Nevertheless, the Supreme Court has
significant influence as policy maker – not least as a result of the Judiciary Act of 1925, which
replaced most appeals with requests for writs of certiorari, thus allowing the Supreme Court itself
to decide which cases to review and which to reject (Baum 1995:125).
Unlike presidents and congressmen, whose access to office depends on their popularity
among the public, federal judges are appointed for lifetime, or till retirement, and their salaries
cannot be reduced (U.S.Const., art.III, §1). Only impeachment by Congress, for reasons of
“Treason, Bribery, or other high Crimes and Misdemeanors”, can remove a federal judge from
office (U.S.Const. art.I, §2-3; art.II, §4). The reason for these provisions was to secure the
independence of the judiciary (see Hamilton 1788b:472). The number of judges in federal courts
is decided by Congress (U.S.Const., art.III, §1), and the Judiciary Act of 1789 provided for six
Supreme Court justices. The number has later varied, but since 1869 there has been nine (Baum
1995:14). The Supreme Court justices are nominated by the president and confirmed – or rejected –
by the Senate (U.S.Const., art.II, §2). Presidents usually appoint justices that support their party, thus
pushing the court in either a conservative or a liberal direction (Irons 2012:11; Baum 1995:43).
Although the decision of the individual justices in a particular case is hard to predict (Gerhardt
2008:chap.3), the ideological composition of the Court is nevertheless reflected in its decisions.
For instance, the Supreme Court was most supportive of civil rights in the 1960s, when several
liberal justices contributed to expanding the rights of blacks, criminal defendants, and other
unprivileged groups. Since the 1970s, appointments of conservative justices by Republican presi-
dents have gradually made the Court more conservative, among other things resulting in a narrow
interpretation of its earlier liberal decisions (Baum 1995:25-26). While Congress may overturn
Supreme Court precedents through constitutional amendments (U.S.Const., art.V), it rarely
happens25. Neither do impeachments. The best way to remove a precedent is therefore to appoint
justices who desire to overturn it (Gerhardt 2008:9). Since the late 1960s, various interest groups
have been increasingly involved in the appointment of justices, utilizing the media, mobilizing the
grassroots, and lobbying senators (Baum 1995:36; Vining 2011). This strategy has also been
adopted by Evangelical law firms (Southworth 2008:38). However, the access to courts –
physically or through letters – gives lawyers a unique chance to influence the decision of the
justices by approaching them directly. Presidential ideologies and public pressure aside,

25
So far it has happened four times: 1793 (11 th Amendment), 1856 (14th A.), 1895 (16th A.), and 1970 (26th A.).

27
 the path of the court is charted by conversations between lawyers (judges and advocates) conducted in a
language and using a terminology fashioned and conveyed through a central shared experience (law
school and participation in the legal profession) (Epstein and Kobylka 1992:311).

Liberal Movements and Litigation

The 20th century saw some major changes in constitutional law doctrine. In his extensive study
of the impact of identity-based social movements (IBSM) 26 on this development, Eskridge
argues that “these movements have been critical to the evolution of constitutional doctrines of
all sorts” (2002:2194). At the beginning of the century, US laws and social practices treated
people differently according to race, sex and sexuality. Largely due to social prejudices, the
political process offered few possibilities for change. The courts, on the other hand, were open,
and as the groups became organized, they would litigate case after case until they achieved
changes both in the interpretation of the laws and in public norms. This way of using the court
system was pioneered by the civil rights movement, and followed by, among others, the
women’s rights movement and, with somewhat less success, the gay rights movement. The
social cause lawyers who litigated on behalf of the IBSMs played an important role in the
process, as did their argumentation. The litigators introduced new perspectives on old issues,
and some of their arguments were adopted by the judiciary as foundation for new constitutional
rules or exceptions to old rules (Eskridge 2002:2064-2068, 2194).
The civil rights lawyers, Eskridge writes, “translated the social, moral, and political goals
of the movement into constitutional discourse” (2002:2072). Founded in 1909, the National
Association for the Advancement of Colored People (NAACP) repeatedly challenged laws that
suppressed the constitutional rights of African Americans. Most of their early cases involved
criminal prosecution. In Moore v. Dempsey (1923), NAACP lawyers provided the Supreme Court
with a detailed report of a trial in which a black defendant received death penalty from an all-
white jury based on testimonies obtained by torture. This was the first in a series of cases in which
the NAACP argued that the defendant’s due process rights of the 14th Amendment had been
violated, and the Court accepted their argument. Later, in Norris v. Alabama (1935), the Court
reversed another death sentence, this time recognizing that the systematic exclusion of blacks
from the jury violated the Equal Protection Clause of the same amendment. This decision became
a useful tool for the NAACP to reverse death sentences for blacks decided by whites-only juries
in the southern states. In a similar way, the NAACP engaged in litigation for blacks’ voting rights
and, from the 1930s, for desegregation of schools and equal salaries and school facilities for
blacks and whites. Since Plessy v. Ferguson (1896), where the Supreme Court upheld the consti-

26
E.g. the civil rights movement, the women’s rights movement, and the gay rights movement.

28
tutionality of state laws requiring racial segregation in public facilities, the doctrine of ‘separate
but equal’ had been standard norm (precedent) in US law. Not until the NAACP brought five
school cases – together known as Brown v. Board of Education (1954) – to the Supreme Court,
was the old precedent overturned. In court, the civil rights lawyers argued that the original
purpose of the 14th Amendment was to eliminate race distinctions, including segregation in public
schools. In addition, the lawyers pointed to negative social, psychological and political effects: the
segregation laws indicated that people of color were inferior to whites; apartheid was undemo-
cratic and a source of social unrest; besides, science showed that racial variation was benign. The
NAACP arguments were by and large accepted by the Supreme Court, which somewhat surpri-
singly ruled unanimously that race-based segregation in public schools violated the Constitution
(Eskridge 2002:1A).
Brown represents a good illustration of Hamilton’s remark that the judiciary is dependent
on “the aid of the executive arm even for the efficacy of its judgments” (1788a:465) – and thus the
need for a ‘holistic’ approach to bring about major social changes. The case also demonstrates
how the legal rules laid down in Supreme Court opinions are of greater importance than the
outcome for the parties involved, as well as how the Court may function as a policy maker.
Despite the Supreme Court’s ruling in Brown, desegregation made little progress in the southern
states until Congress in 1964 passed the Civil Rights Act, which opened up for federal law suits
and denial of federal funds to institutions that practiced racial discrimination. In addition, the
Voting Rights Act of 1965 contributed to racial equality as it forced local politicians to pay
attention to black voters (Baum 1995:229-232, 253). Congressional acts and, above all, the threat
of sanctions were necessary to give the Supreme Court’s ruling practical effects. The Court’s
opinion was nevertheless essential to create a political climate that would influence public
opinion, as well as the actions of the other governmental branches.
Eskridge also looks at the arguments applied by the opponents of the civil rights move-
ment to limit their achievements. Prior to World War II, opponents of desegregation based their
arguments on natural law philosophy27. Racial diversity, they declared, was malignant and a threat
to the white race’s purity. Later, opponents took a pragmatic approach, claiming that desegrega-
tion was unnecessary, impractical, and counterproductive. Both types of argument, however, were
linked to the Constitution: the federal orders of desegregation interfered with the autonomy of the
states, made the judiciary superior to the popularly elected legislature, and hampered the rights of
whites, e.g. their rights not to associate with blacks or experience ‘reversed discrimination’

27
I.e. a belief in universal laws, inherent in nature and independent of laws enacted by a government.

29
(Eskridge 2002:1A3). Such battle between conflicting constitutional rights resembles the debate
of the place of religion in society. In a secular, pluralistic state, Habermas remarks, “[t]he conflict-
ing parties themselves must reach agreement on the precarious delimitations between a positive
freedom to practice one’s own religion and the negative freedom to remain spared of the religious
practices of the others” (2005:13). While courts could be seen as one way to reach agreement, it
seems more likely that it is because of the lack of such agreement that Evangelicals have turned to
litigation.

Conservatives and Litigation

Early studies on interest group litigation concluded that groups utilized litigation when they
are disadvantaged in traditional political forums, i.e. they turn to the courts because they lack
access to the legislative and executive branches (den Dulk 2006:199; Epstein 1985:9). The
late 1960s and early 1970s saw a massive rise of liberal public interest law firms, counting
more than 70 by the mid-1970s. Recognizing the success of earlier groups, like the NAACP
and the ACLU, the new firms tried to copy their tactics (Epstein 1985:119-120). A similar
conservative mobilization began in the early 1970s, but the big waves of new conservative
law firms came in the 1980s and 1990s – primarily as a response to the perceived threat from
liberal organizations (Southworth 2008:10,28-30). However, there were also a few conserva-
tive interest groups that made use of litigation prior to the civil rights movement. In the late
19th century, corporate interest groups turned to the courts because they failed to achieve their
goals. Like the liberals, they were politically disadvantaged (Baum 1995:209; Epstein
1985:147). According to Epstein, the situation was different for the conservative groups that
arose in the late 20th century. Many of these groups had political influence, but they saw
themselves as “disadvantaged in the judicial arena” (1985:147). They simply could no longer
ignore the role that courts played in various interest conflicts. Epstein concludes her study of
conservatives and litigation by suggesting that “a wide range of groups regularly resort to the
judicial arena because they view the courts as just another political battlefield, which they
must enter to fight for their goals” (1985:148).
The first Evangelical organization engaged in litigation was the Center for Law and
Religious Freedom, established in 1975 with a focus on 1st Amendment issues. The main concern
of the earliest Evangelical law firms was to protect religious private schools from government
interference. From the mid-1980s they would increasingly engage in other fields, like abortion,
gay rights, family values, and religious expressions in public places and, not least, in public
schools (Southworth 2008:16; Hacker 2005:2). Like their non-religious conservative counterparts,

30
the early Evangelical firms – small in size, poorly funded, and run ‘sacrificially’ by volunteers and
a few staff lawyers – failed to achieve the success of the liberal groups. Things improved,
however, when they specialized, advanced their strategies, and received enough money to employ
competent full-time litigators (Southworth 2008:26).
While being careful not to generalize, we could say that at least some of the most
influential Evangelical law firms arose, not as independent projects inspired by Christian values,
but as part of the Evangelical movement that emerged to pursue Ockenga’s strategy of
‘infiltration’ (see chapter 1). Scheingold and Sarat has stressed the importance of distinguishing
between Christian cause lawyers who defend religious values as a matter of personal conscience,
and “the legal arm of the evangelical political movement” who view their cause lawyering as a
religious call (2004:113-114). The strategy of the latter is both defensive, i.e. to protect certain
religious freedoms, and offensive, i.e. to change society. Even though they are generally skeptical
to civil rights – because these rights are secular and individualistic – the Evangelical cause
lawyers nevertheless utilize them as a means to reach their goal: to make the values of the Judeo-
Christian tradition a state responsibility, and to conform society to their interpretation of the Bible
(Scheingold and Sarat 2004:105-117).

The Holistic Approach of Evangelical Law Firms

The Evangelical law firms are engaged in more than just litigation, and their strategies target other
fields than just the courts. As was illustrated by Brown (see above), the success of the liberal
litigators was partly a result of Congress and the Supreme Court working in tandem. Interviewing
conservative cause lawyers, Law Professor Ann Southworth found that these lawyers were fully
aware that use of litigation alone was not sufficient to achieve their goals. This was particularly
true for the Evangelical lawyers, who “believed that law could protect religious expression and
discourage immoral conduct, but doubted that it could significantly advance their larger goal of
transforming culture” (Southworth 2008:156). Aware that processes outside the court also influence
litigation outcomes, the law firms employ a variety of complementary strategies (Southworth
2008:167). Their strategic repertoire can be classified as either in court strategies, targeting the
formal public sphere of courts, or outside court strategies, which target both the formal and the
informal public spheres (e.g. the legislature and the general public).
The in court strategies include test case selection (sponsorship) and amicus curiae briefs
(third-party intervention), both aiming at removing or building precedents. The test case strategy
was pioneered by the NAACP (see above), and means that a law firm sponsors a case or a serial of
cases with sympathetic facts (i.e. likely to be won). This gives the law firm an ownership which

31
allows it to control the course of the litigation (Brown 2002:49). The Scopes Trial mentioned in
chapter 1 is a well-known example of a test case. Here John T. Scopes volunteered to be arrested
so that the ACLU could challenge the constitutionality of the new Tennessee anti-evolution act.
However, because the court of appeals reversed the decision of the trial court, this case never
reached the Supreme Court, and the constitutionality of the ban remained unaddressed (Gatewood
1969:331-341). The test case strategy has been widely applied by various interest groups, like
feminists, gays, consumers, and environmentalists (Levitsky 2006:145).
To follow a case all the way to the Supreme Court is expensive. A cheaper alternative,
although still costly, is to file an amicus brief, which is a letter to the court written by a third-
party. This solution allows parties that are not directly involved in a case to present their
arguments to the court. The judiciary seldom rejects amicus briefs, and the strategy has been
the one most frequently employed by religious conservatives (Brown 2002:52-54).
Regardless of strategy – case sponsor or amicus – the goal of the law firms is to convince
the court to ‘buy’ their arguments. Not unlike how the civil rights lawyers and their opponents
invoked the Constitution to promote their causes (see above), researchers have pointed out that
Evangelical litigators “use a language of rights” (Southworth 2008:163), invoke “counter-rights”
(Burke quoted in Southworth 2008:35), and emphasize individual freedom (den Dulk 2006:212).
The early Evangelical lawyers related their arguments to the Establishment Clause and the Free
Exercise Clause of the 1st Amendment when they litigated their religious cases. In the late 1980s,
they turned to the Free Speech Clause of the same amendment, a move which has brought
considerable success, both in the Supreme Court and in lower federal courts (Brown 2002:58-
119). According to Brown, this “coupling of the free speech clause with religious expression” has
been the major contribution of Evangelicals to the Supreme Court, resulting in several precedents
(2002:73). In the 1960s and 1970s, liberals induced a broad interpretation of the Free Speech
Clause to protect pornographic materials. Similarly, Evangelical litigators aim at a broad inter-
pretation of the clause, notwithstanding the benefits such interpretations have for other groups –
even those with opposite viewpoints (Brown 2002:137-139).
In general, Evangelical cause lawyers spend less time on litigation than they do on
activities outside the courtroom (Brown 2002:121). Their outside court strategies may involve
coalition and network building, influencing the nomination of judges, writing books and
articles, arranging conferences, drafting legislation, and advising public officials (Southworth
2008:159,183). Raising money is critical, not only to sponsor cases or file amicus briefs, but
also to employ a specialist staff, pay for office space and equipment, and raise more funds.

32
Since these lawyers usually do not charge their clients, donations from supporters are
imperative to their activity. The most effective way of raising money is the direct mail
technique, which was pioneered by conservative political interest groups in the early 1980s.
To convince the (potential) donors that they are worthy of their support, the firms must not
only show that they are actively defending religion against enemies such as secular
humanism, but also that their activities bring success – and that there is still much work to be
done (Brown 2002:122-123).
Conservative lawyers, including Evangelicals, consider a strategic use of media to be a
central part of their job. Several of the lawyers interviewed by Southworth said that they
sought to overcome the liberal bias of the mainstream media (2008:161-162). Some Evange-
lical law firms produce their own radio and TV programs. Others have their representatives
frequently interviewed by both religious and secular media. In addition, the law firms spend
considerable money on education of the public, which includes providing their own view on
legal issues to the news media, policy makers, and interested parties (Brown 2002:125-128).
The conservative law firms’ lack of success in the 1970s was analyzed in the Horowitz
report (1980). The report suggested that the conservative groups needed to establish ties with
law schools and recruit elite lawyers and law students – like the liberals had done. However, the
religious conservative groups still draw most of their lawyers from less elite schools. More
fruitfully, some Evangelicals have established their own law schools, or offer training to
interested lawyers and students in other ways (Southworth 2008:19-21,33). Their ambitions can
be illustrated by a statement made by Jerry Falwell regarding his own Liberty University Law
School: “[W]e plan to turn out conservative lawyers the same way Harvard turns out liberals”
(quoted in Hacker 2005:1). Both Liberty University and Pat Robertson’s Regent University
have been quality approved by the American Bar Association (ABA 2014a). To be sure, the
lawyers engaged in Evangelical law firms like Robertson’s ACLJ, are professionals.

Using Litigation and Rights to Fight Back

When the Evangelicals entered the political arena in the 1970s and 80s to influence the legi-
slative and executive branches of government, it was not a matter of course that they would also
target the judiciary. They did, however, and they did so in a time when litigation had become
widely recognized as a way to influence laws and societal development. The Evangelicals
joined the wave of conservative law firms established to counteract the political, social, and
economic influence of liberals. We could perhaps say with Epstein that they saw the courts as
“just another political battlefield, which they must enter to fight for their goals” (1985:148). On

33
the other hand, as research has pointed out, the impact of Evangelicals on the political arena in
the 1980s was limited (see chapter 1). We could therefore ask whether they, despite their
increased visibility in politics, instead should be seen as ‘disadvantaged’, like the early liberal
movements. The classifications aside, what seems clear is that Evangelicals perceived litigation
as necessary. The liberal turn of society – much of which was a result of liberal groups’ strategic
use of courts – seemed to force religion to a marginalized position in society, perhaps best
exemplified by the ban on prayer and Bible reading in public schools. Prominent figures, like
Francis Schaeffer, portrayed laws and courts as ‘vehicles’ to force the secular humanistic
worldview upon the entire population (see chapter 1). Further, it was presented as a ‘religious
duty’ to defend Christian traditions and values, and thus prevent the corruption of society. Put
short, the Evangelicals turned to litigation in order to ‘fight back’28.
In the 1980s, the success rate of the right-based social movements declined as they be-
came more defensive. According to Epstein and Kobylka, the liberals were often defeated in
court because they failed to change their arguments when their earlier victories came under
threat (1992:307-311). However, in recent years these groups have found an alternative way
to challenge domestic policies in international laws and human rights (McCann and Dudas
2006:54-55). The willingness of some Supreme Court justices to let their constitutional inter-
pretation be informed by international law29 has generated strong criticism by some Evange-
licals. Others have embraced the possibility found in international laws to defend their causes
abroad, now using the language of human rights (Southworth 2008:174). After all – as
pointed out by Nichols, he himself an Evangelical – Evangelicals need human rights, especi-
ally the right to speak freely, so that they can fulfill their call to evangelize the world (2008-
2009:630). The ACLJ, which is the law firm examined in this study, frequently invokes both
constitutional and international rights. Like many other conservative Christian law firms (see
ADF 2014), it places great emphasis on freedom, liberty, and universal rights, at least in its
arguments.

28
The expression is borrowed from the ACLJ, which uses it to describe their own activity (see e.g. Sekulow
2013; ACLJ Petition 2013).
29
The Supreme Court has used international law – directly or as an interpretive tool – to resolve major legal
issues since its establishment in 1798 (Sloss, Ramsey and Dodge 2011:2). In the civil rights era, the Court’s use
of international law was minimal. It increased, however, from the late 1980s (Flaherty 2011:442).

34
3 The American Center for Law and Justice
I was sitting in my study […] when the phone rang. It was Jay Sekulow, chief counsel of the American
Center for Law and Justice, calling to tell me that the first 1993 case concerning student-initiated
graduation prayer had been litigated and that we had won a resounding victory. This was one tangible
bit of good news that the excesses of liberalism in America may be coming to an end.

Pat Robertson, The Turning Tide: The Fall of Liberalism and the Rise of Common Sense (1993:9)

The American Center for Law and Justice (ACLJ) is one of the most influential law firms in the
United States, with affiliates literally around the globe (ACLJ 2012e). Founded by Evangelical
Pat Robertson in 1990, the law firm offers legal assistance in its chosen field of specialization:
American constitutional law, European Union law, and human rights law (ACLJ 2012c). In
America, its main focus is on the freedoms of speech, assembly and religious exercise laid down in
the 1st Amendment of the Constitution (ACLJ 2012a). The law firm engages in a variety of issues,
such as national security, human life, marriage, judicial nominations, pornography, and patriotic
expressions like the National Motto and the Pledge of Allegiance (ACLJ 2012b). The organization
does not charge its clients, but says it depends “upon God and the resources He provides through
the time, talent, and gifts of people who share our concerns and desire to protect our religious and
constitutional freedoms” (ACLJ 2012c). The ACLJ litigates in state and federal courts across the
US, and has a special focus on the US Supreme Court (ACLJ 2012d). This chapter will present the
history and the scope of the ACLJ, beginning with its founder, Pat Robertson. Perhaps best known
in the political world for his run for presidency in 1988, Robertson serves as a good illustration of
the holistic Evangelical approach, which in his case involves broadcasting, publications, fund
raising, lobbying, education, and law firms. Although my inquiry focuses on the ACLJ, the fact
that these ‘means’ enforce each other should stand as a backdrop. I will also spend some time on
Jay Sekulow, who since 1992 has been the ACLJ’s Chief Counsel. Sekulow’s rhetorical and
litigation skills leave no doubt that he has played a major role for the law firm’s development and
success. The chapter then continues by describing the law firm’s key issues, stated goals, and
main strategies. After a brief presentation of its international engagement, I will close with a short
discussion of where the ACLJ fits into the wider landscape of society, using the model of the two
public spheres drawn up in the introductory chapter.

Pat Robertson – the Founder

When Jerry Falwell and his allies organized the Moral Majority in 1979, Pat Robertson was
not invited. According to Martin (1996:258), the main reason was theological: Robertson was
a charismatic and exercised ‘spiritual gifts’, such as speaking in tongues, healing, and prophe-

35
sying. Like Falwell, many Evangelicals were skeptical to these kinds of religious expressions
(see also Woodberry and Smith 1998:29). Nevertheless, when it comes to political engage-
ment, Robertson has become one of the most prominent Evangelicals. The ACLJ is only one
of his many enterprises – and should be considered a part of a greater whole.
The son of a conservative Democrat congressman from Virginia, Robertson had a good
education at Washington and Lee. Despite his Baptist background – his grandfather was a
preacher – he had no real interest in religion until the mid-1950s, when he had finished his studies
at Yale Law School. He and his Catholic wife started to attend an Evangelical church, he had a
“born-again” experience, and in 1961 he was ordained a Southern Baptist minister. By then,
Robertson had received a Master of Divinity degree at New York Theological Seminary30. While
attending the seminary, he was introduced to Pentecostalism and spiritual gifts, and he embraced
it (Harrell 1988:23-57). Robertson pioneered Christian media by establishing the Christian Broad-
casting Network (CBN) in 1960, airing its first TV program in 1961 and on radio since 1969.
Financially the project was saved by The 700 Club, a daily TV show with telephone calls from
viewers, prayer requests, and donations. By 1975, the CBN estimated that the program had
some 65 million potential viewers. The same year, The 700 Club was aired abroad for the first
time. In subsequent years the CBN expanded both nationally31 and internationally, not least
thanks to the successful fund raising programs (Harrell 1988:69-94).
When it came to politics, Robertson was long ambivalent. The 1980s, however, became
a politically intense decade. In 1981, he established the Freedom Council to fight for “the rights
of believers, and to teach evangelical Christians, primarily, but also Orthodox, Jews and Roman
Catholics, how they could be effective in the political process” (Robertson quoted in Martin
1996:259). When Robertson – in accordance with ‘God’s plan’32 – ran for presidency in 1988,
the Freedom Council played a major role in mobilizing his supporters, financed primarily
through the CBN. Catching many by surprise, Robertson won some minor states, but lost the
Republican candidacy to George H. W. Bush (Martin 1996:260-292). To follow up and broaden
the successful grassroots network developed during the campaign, Robertson established the
Christian Coalition in 1989 (Martin 1996:299-302). This was a non-denominational lobby group,

30
This seminary was one of the new schools founded around the turn of the century in response to the liberal
shift in many of the older schools.
31
Robertson’s CBN Cable Network (renamed CBN Family Channel in 1988), was bought by media magnate
Rupert Murdoch – a supporter of Robertson in his 1988 run for presidency – in 1997 on condition that it would
continue to air The 700 Club (Fabrikant 1997). The network is now owned by Disney, and it still airs Robert-
son’s The 700 club (see http://abcfamily.go.com/schedule).
32
According to Robertson, God’s plan was “for his people to take dominion” (quoted in Martin 1996:268).

36
which in addition to Evangelicals also included Catholics, Mormons, black conservative Prote-
stants, and conservative Jews (Woodberry and Smith 1998:46).
Robertson founded his first law firm, the National Legal Foundation, in 1985, but due to
a split, he left the firm in 1988 (Martin 2008:347). The effects of his initiative can still be felt,
though, as the Foundation has continued to litigate for ‘religious freedom’ (NLF 2012). By the
mid-1980s, Robertson had obviously discovered that litigation was an efficient strategic tool. In
addition, he was concerned about the effect on society from the liberals’ use of this tool. In a book
published in 1986, he complained that the ACLU had suppressed the rights of the majority by
pressing forth the rights of a minority. Among the harmful effects of their litigation, he pointed
to the teaching of evolution and the ban on prayer and Bible reading in public schools (1986:190-
195). Robertson, in other words, followed the same argument as Falwell and his companions
when they established the Moral Majority in 1979: the Christian majority in America had been
silent long enough (Marquand and Nettler, 2000:80). Later, Robertson wrote about his reasons
for establishing yet another law firm, the ACLJ:

I founded the American Center for Law and Justice in 1990 to fulfill my heart cry over the sorry state of
religious freedom in our land. Before then, believers had been terrorized by the American Civil
Liberties Union, which had set as its mission the destruction, under the guise of “liberty”, of every
public expression of faith in America (Robertson 1993:125).

The ACLJ’s strategy was to expose the ACLU as “an advocate of crime, pornography, atheism,
and socialism” (Robertson 1993:126). In a time when the ACLJ had already experienced its first
wins at the Supreme Court, Robertson seemed optimistic. Recognizing that the project of chang-
ing the judicial system was enormous, he still seemed to see it within reach: “With the wind of
virtue, the strong will of the people, and the reassurance that our case is just, we shall prevail. The
wind is at our back, and the tide is turning” (Robertson 1993:127).

Jay Sekulow – the Leader

The most prominent spokesman of the ACLJ is its Chief Counsel, Jay Sekulow, a respected
lawyer of Jewish background. At the age of 18, he became a Messianic Jew thanks to the activity
of a group called Jews for Jesus33. Twelve years later he defended the same group in his first
Supreme Court case, Board of Airport Commissioners of Los Angeles v. Jews for Jesus (1987).
Here the Court agreed with Sekulow that the Airport’s ban on distribution of religious material
was unconstitutional (Brown 2002:37-38). Since then, Sekulow has argued eleven cases before
the Supreme Court, some of which have set precedent (ACLJ 2012f) (see attachment 1). The
33
A group of Messianic Jews focusing on converting Jews. Sekulow became a member of the Jews for Jesus’
board of directors, and in 1986 he became their General Legal Counsel (Sekulow 2005).

37
ACLJ web page informs that Sekulow has been recognized by various magazines as one of the
top lawyers in the United States, and the Time Magazine has identified him as one of the “25 most
influential Evangelicals in America” (ACLJ 2012f).
Hired by Robertson in 1992, Sekulow has championed a free speech defense for religious
expression in public places. He has defended various religious groups, including Jews, Hare
Krishnas and Scientologists (Hacker 2005:19). This somewhat tolerant approach has been criti-
cized by some Evangelicals, but Sekulow explains his position as a natural consequence of his
strategy of arguing these cases as questions of free speech. “I often surprise some of my Christian
friends on issues like flag burning,” he said in an interview. “If you can’t burn it, the liberty
behind it is meaningless” (Hacker 2005:19). Sekulow began using the free speech strategy when
he represented Jews for Jesus at the Supreme Court in 1987. In those days, Evangelical lawyers
typically centered their arguments on the Free Exercise Clause (see chapter 2). As these
arguments bore little fruit, Sekulow saw a need for a different approach to religious literature
distribution cases. At the Supreme Court he based his whole argument on the Free Speech Clause,
hardly mentioning religion at all, and the Court unanimously accepted his argument (Sekulow
YouTube 2011a). A few years later, in McConnell v. FEC (2002), Sekulow defended the right of
17 year old students to make contributions to political campaigns. In a video presentation he says:
“All nine justices again agreed with my free speech argument. … It showed that a strategy on free
speech could work, no matter whether it was religious speech, political speech... It worked!”
(Sekulow Youtube 2011b:min.03:03-03:51). Sekulow promotes a liberal understanding of rights,
and sees it as part of the ACLJ’s responsibility to educate conservative Christian leaders on how
to approach the courts (Hacker 2005:24). As litigator he has been accused of being rude and
aggressive. “The Supreme Court was used to Christian lawyers being meek, mild, and manageable,”
he has stated. “I’m reasonable fanatic” (quoted in Hacker 2005:19).

The Staff
Robertson’s approach has been in line with what Schaeffer described as cobelligerency (‘co-
fight’). His enterprises not only demonstrate the shared values existing among various conser-
vative (Judeo-)Christian groups, but have also established an arena on which these groups can
work together to pursue their common goals. Robertson’s desire to cooperate with all Christians
who share his concerns is reflected in his choice of Keith Fournier, a Roman Catholic lawyer, as
the ACLJ’s first Executive Director. A champion of Evangelical-Catholic cooperation, Fournier
described himself as “an evangelical Catholic Christian” in his first book, Evangelical
Catholicism, published one year before he began his work at the ACLJ (1990:11). His main

38
project was to fight abortion, and he had entered law school in order to overturn the landmark
abortion case, Roe v. Wade (1973), “the infamous decision which opened the door to the Culture
of death” (Fournier 2010). Like Sekulow, Fournier ascribed the ACLJ an important role in the
battle for traditional values. His choice of words is instructive: “I see the litigation efforts of
groups like the ACLJ as the sword. They help us fend off the social marauders, those who are
stripping away the remnants of civilization, suppressing people of faith, and substituting a new
culture in the United States” (quoted in Brown 2002: 39). Fournier left the ACLJ in 1997 after he
had been ordained a deacon (Fournier 2010).
The ACLJ asserts that its attorneys are “some of the foremost legal experts on freedom of
speech, religious freedom, and human rights law in the world” (ACLJ 2012h). In 2004, the ACLJ
had 44 full-time attorneys across the nation, 100 support staff, and a budget of more than $30
million per year (Hacker 2005:28)34. Its present eleven senior attorneys include both Catholics and
Protestants. Two of them – like Sekulow – are former students at Regent University, an institution
established by Pat Robertson35 in 1977 under the name CBN University. The CBN University
gradually expanded, and opened its School of Law in 1986, one year after Robertson established his
first law firm36. The university’s new name from 1990 – Regent37 – illustrates its goal, which is
also found its motto: “Christian Leadership to Change the World”. From having 70 students in
1978, Regent now has more than 5500 (Regent Uni. 2013a). The School of Law boasts of “more
than 2,700 alumni practicing law in 47 states and overseas, distinguishing themselves as judges
and judicial clerks, partners and associates in law firms, mayors and legislators, and in positions
with government agencies and public interest organizations” (Regent Uni. 2013l). As a Distinguish-
ed Professor of Law, Sekulow teaches courses in Supreme Court history and constitutional law
(Sekulow’s Blog 2013). Other ACLJ attorneys also teach at Regent, and various practical
programs work to establish ties between students and the ACLJ (Regent Uni. 2013i; 2013b).
The close cooperation between Regent University and the ACLJ opens a way for the
ACLJ to ‘shape’ future lawyers38, be it values, legal interpretations, or experiences. This can be
illustrated by the second most prominent figure in the ACLJ, Jordan Sekulow, son of Jay

34
I have not succeeded in finding more recent data on this.
35
Robertson is still central to the Regent leadership, being its Chancellor and Chief Executive Officer (Regent
Uni. 2013j). Together with him in the Board of Trustees are, among others, Jay Sekulow and Robertson’s wife,
Dede (Regent Uni. 2013k).
36
Regent University now consists of seven graduate schools, all of which offer “fully accredited master’s and
doctoral degrees”: Business and Leadership; Communication and the Arts; Divinity; Education; Government;
Law; and Psychology and Counseling (Regent Uni. 2013h)
37
The name refers to a king’s regent, “one who represents a king in his absence”. The king in question is Christ, who
is to be represented “in whatever sphere of life [one] may be called to serve Him” (Regent Uni. 2014a).
38
Several former Regent students have worked for the ACLJ (see e.g. In Brief #4; CEJS 2014; Alumni Association 2013)

39
Sekulow39. A former graduate at Regent’s School of Law, Jordan Sekulow is now Executive
Director of the ACLJ. On his way, he has gained experience with the other governmental
branches, for instance as an internee under Attorney General John Ashcroft; as National Youth
Director for George W. Bush’s 2004 campaign; and in 2008 as a consultant to Mitt Romney. As
the ACLJ Executive Director he “oversees much of the ACLJ’s international work, engaging with
government officials and international leaders on human rights issues around the world” (ACLJ
2012i). In addition, he is made visible as a representative for the ACLJ through the media, e.g. as
a guest commentator in national TV news programs (ACLJ 2012u).

Key Issues, Goals and Strategies

The goal of the ACLJ is to ensure that certain religious and political values and interests are
protected by law. The ACLJ frequently refers to key words like freedom and liberty, which it
describes as “universal, God-given and inalienable rights that must be protected” (ACLJ 2012c;
2012q). The law firm engages in a variety of fields, presenting its main issues as: holidays,
church/state, churches and organizations, education, equal access, free speech, health care,
international human rights, federal judiciary, military rights, national security, pornography,
prayer, pro-life, and workplace (ACLJ 2012j). Analyzing the ACLJ’s litigation participation
from Sekulow’s first case in 1987 till 2004, political scientist Hans J. Hacker found that its main
efforts have been directed towards three areas: state/church issues related to schools;
state/church issues related to public places; and pro-life protesting. Of the ACLJ’s 193 litigation
involvements in the period, more than half concerned state/church issues. In the mid-1990s,
abortion cases were the most frequently argued (2005:40-42).
According to Hacker, the ACLJ does not work to overthrow secular society. Instead its
aim is to safeguard the voice of religion in the social discourse (Hacker 2005:36-37,147). By
presenting the Christian voice as one among many in a pluralist society, the ACLJ seems to
have left the rhetorical strategy of depicting conservative Christian claims as “majoritarian
politics”, as was the choice of Falwell for his Moral Majority, and Robertson in his 1986 book
(see above). Instead, the ACLJ argues its causes by presenting Christians as a “protected mino-
rity”, and by using civil rights-era rhetoric (Hacker 2005:37). While the actual size of the Evan-
gelical movement is debated – much depending on how you measure it (see Hackett and
Lindsay 2008) – the ACLJ nevertheless sees it as its job to ensure that the church can fulfill its
gospel mission in the world. One strategy it employs to achieve this goal, is to make the

39
To avoid confusion, I refer to Jordan Sekulow by his full name. When writing Sekulow, I mean Jay Sekulow.

40
Christian worldview “accepted in the marketplace of ideas as a legitimate expression” (Sekulow
quoted in Hacker 2005:27).
According to Sekulow, “it is ultimately the courts which decide the scope of religious
liberties in America” (quoted in Hacker 2005:26). The composition of the federal courts
therefore receives much attention from the ACLJ, which engages in debates and seeks to
influence the nomination processes 40. Just as Schaeffer did some 35 years ago, the ACLJ
accuses liberal judges for turning their personal political agenda into a legislative project, thus
being responsible for “many of the ills that plague our society” (ACLJ 2012k). To put
pressure on the Senate in the confirmation process, the ACLJ urges its supporters to call
Senators to inform them about their opinions, and to encourage their friends, associates and
church members to do the same. To help them on the way, the ACLJ provides information
about where they can find the Senators’ phone numbers (ACLJ 2012k). On the ACLJ web
pages one can also find analyses of the judicial nominees, as well as updates about the process
and the result – and perhaps a salute of gratitude, as in the case of a liberal judge nominated by
president Obama for a federal appellate court, but eventually rejected by the Senate: “Thanks
to all of you who picked up the phone and called your Senator, urging the defeat of this nomi-
nation” (Sekulow 2011a). This is one example of how the ACLJ may play a central role in the
organizing of pressure groups.
In addition to sponsoring cases, the ACLJ actively tries to influence the courts’ decisions
through amicus briefs. The law firm claims to have “one of the most effective amicus brief
programs in the nation” (ACLJ 2012d).

We file amicus briefs before the Court on behalf of Members of Congress and hundreds of thousands of
American citizens each year. Our amicus briefs have been cited in numerous Supreme Court and lower
court opinions as our practice continues to shape and influence the legal landscape on behalf of the
values and principles held by our members. (ACLJ 2012d)

In his analysis of the ACLJ’s litigation participation from 1987-2004, Hacker found that the law
firm’s activity reflected its goal of shaping policy at a national level. Its main efforts were clearly
directed towards federal courts (179 of its 193 litigation involvements41). In most cases (124 of 193)
the ACLJ participated as case sponsor (client representation in court). Twelve of these were Supre-
me Court cases, and 103 took place in lower federal courts. In addition, the ACLJ filed 56 amicus
briefs, including 31 to the Supreme Court. The predominance of the amicus strategy – i.e. to join

40
The ACLJ assertedly played a major role in the confirmation process of two new conservative Supreme Court
justices: the new Chief Justice, John Roberts (2005), and Justice Samuel Alito (2006) (In Brief #4:3-4. See also
Sekulow 2006).
41
The numbers refers to participations, not cases (i.e. one case may involve participation in more than one court).

41
others’ cases – at Supreme Court level is related to the difficulties of getting a case all the way to the
Court (see chapter 2). The ACLJ may also contribute with counsels to one of the involved parties or
cover parts of the costs. Most disputes that are brought to the ACLJ, however, are settled by letters
or phone calls – not seldom with the threat of a law suit (Hacker 2005:25, 40-43).
The ACLJ frequently utilizes the media to promote its views. Sekulow runs a daily
national call-in radio program, Jay Sekulow Live!, which is also streamed live on the ACLJ web
site. In addition, he hosts a weekly TV program, ACLJ This Week, and is – like his son Jordan –
frequently seen on national TV news programs, like CNN, CBN, and FOX news (ACLJ 2012f;
2012i; 2012m; Fox News Archive). The ACLJ sends out regular newsletters (e-mails) with
updates on current issues42 and pleas for financial support, sometimes announcing that “[g]ene-
rous donors have agreed to match every online gift. Give today and double your impact” (ACLJ
newsletter 07/03/13). It starts petitions – for instance against ‘the ObamaCare sponsoring of
abortion-pills’, which by 04/10/14 had some 165.370 online signatures (ACLJ 2012l) – and is
visible on Twitter and Facebook, with more than 36.200 followers and 537.230 likes
(04/10/14). The ACLJ also attempts to educate the public through more traditional means, like
letters, articles, booklets, and other publications (see e.g. ACLJ 2012n).

Interaction with the Other Branches of Government

Pursuing its goal of ensuring legal protection of conservative values and interests, the ACLJ
does not only direct its efforts towards the judiciary. Through its Governmental Affairs Office
in Washington D.C.43 it also interacts with the legislative and executive branches. The office
is headed by Nathanael Bennett, who was linked up with the White House in 2000/01 by serving
on the Transition Team of President George W. Bush (ACLJ 2012g). The ACLJ lawyers
participate in the drafting of laws and act as consultants on political issues (Hacker 2005:29).
For instance, Sekulow helped drafting the Defense of Marriage Act (DOMA), which was
signed into law by President Bill Clinton in 1996 (Hacker 2005:39). The purpose of the
DOMA was to “define and protect the institution of marriage”. The act allowed states to reject
other states’ recognition of same-sex couples as ‘married’ – that is, the act recognized the states
as autonomous in this question. Further, the DOMA defined the federal use of “marriage” as a
legal union between one man and one woman, and “spouse” as a person of the opposite sex

42
The ACLJ newsletters – each usually sent out twice – contain short reminders of issues in need of support,
such as the pro-life battle, the threat of Sharia laws, an imprisoned American pastor in Iran, attacks on public
religious symbols, or President Obama’s support for the Muslim Brotherhood.
43
According to Hacker (2005:29), Sekulow established the office when Bush became president in 2001.

42
(DOMA 1996). In 2013, the Supreme Court ruled that these definitions were unconstitutional
as they deprived homosexual couples of federal marriage benefits (USA.gov 2013).
In light of the ACLJ’s rhetorical emphasis on freedom and liberty, it may come as a
surprise that Sekulow drafted the USA PATRIOT Act (see Hacker 2005:29). “I worked hard
on the PATRIOT Act during the aftermath of 9/11, so, I support the PATRIOT Act,” he
recently said in a comment on Fox News (2013:min.02:30-40). The Act, which was designed
“to deter and punish terrorist acts in the United States and around the world, to enhance law
enforcement investigatory tools, and for other purposes”44, was signed into law by President
George W. Bush in October 2001, less than two months after the 9/11 attacks. As Bush’s
Attorney General from 2001 to 2005, John Ashcroft played a leading role in enforcing the act.
When he resigned in 2005, Ashcroft became Distinguished Professor of Law and of Govern-
ment 45 at Robertson’s Regent University, a position he still holds 46 (Regent Uni. 2013c).
While liberal groups has criticized the USA PATRIOT Act for taking away the ‘checks on
law enforcement’ and for threatening basic civil rights and freedoms (see e.g. ACLU pdf),
Ashcroft, as well as Regent, has repeatedly defended the act as both necessary and successful
(see e.g. Ashcroft 2003; CNN 2003; Regent Uni. 2013c; 2013f). As Professor of Law, Ashcroft
teaches a course on civil liberties and national security at the university’s International Law &
Human Rights program, a summer course held in Strasbourg, France (Regent Uni. 2013d,
2013e). More than just formally related to Regent, Ashcroft is a firm supporter of its ideology.
In a promotion video on YouTube titled Equipping Leaders to Change the World: Regent
University, Ashcroft appears as one of the main spokesmen, stating that “God has not given
us the spirit of fear, but of power – authority; of love – compassion; and of a sound mind –
rationality” (Regent YouTube 2009a:min.00:54-01:05). The video closes with his somewhat
ambitious words: “Individuals who have had the opportunity to pursue truth at Regent will be
so well equipped and so sufficiently endowed with purpose that they’ll change the world into
which they go” (Regent YouTube 2009a:min.02:28-02:40). The USA PATRIOT Act has demon-
strated that this is more than just a poetic expression.

44
The quote is taken from the Act’s introduction, which is a short description of its purpose. Among other
things, the Act allowed investigators to fight terrorism with tools that have earlier been used against organized
crime and drug trafficking (e.g. wiretapping), and increased penalties for terrorism and engagement in
conspiracies (DOJ 2014).
45
Ashcroft teaches at the School of Law and at the School of Government. His fields of expertise are listed as
‘constitutional law and Supreme Court’ and ‘terrorism and homeland security’ (Regent Uni. 2013c; 2013g).
46
The relationship between Regent and Ashcroft dates back at least to 1993, when the University gave him an
honorary doctorate of humane letters (Regent Uni. 2013c).

43
International Engagement
A major reason for the ACLJ’s international engagement is the use of international laws by
some Supreme Court justices to interpret the US Constitution, and their reference to inter-
national court decisions in their opinions. The ACLJ strongly opposes this trend.

We need to continue to pressure these justices, but they're appointed for life. (...) Nominating the right
justices to the courts is essential. As I said, we've got offices in Europe; if that's going to be the trend,
we're going to be there fighting it out in Europe as well (ACLJ 2012s; see also Hacker 2005:33).

The ACLJ claims to reach across more than 35 countries (ACLJ 2012o). It has opened affiliate
offices in France (1997), Russia (1998), Israel (2009), Pakistan (2009), Kenya (2010), Zimbabwe
(2010), and South Korea47 (2011) (ACLJ 2012b). Like many Evangelicals, the ACLJ is a firm
supporter of Israel. It works in Congress, at the UN, and with Israeli officials through its Jerusa-
lem office to defend the Jewish nation (ACLJ 2012p). Recently, a team from the European office,
headed by Sekulow, successfully defended Israel before the International Criminal Court against
charges of war crime brought by Palestinian authorities (Clark 2012a).
The European Centre for Law and Justice (ECLJ) is the ACLJ’s most important affiliate.
With offices in Strasbourg, the ECLJ is strategically located in the city where we find the seat of
the Council of Europe and the European Court of Human Rights48 . The ECLJ by and large
follows the same goals and strategies as its American counterpart. It describes itself as a
“Christian-inspired organisation” which bases its action on “the spiritual and moral values which
are the common heritage of European peoples and the true source of individual freedom, political
liberty and the rule of law, principles which form the basis of all genuine democracy” – a direct
quote from the preamble of the Statute of the Council of Europe. The ECLJ says it has a special
focus on “the protection of religious freedoms and the dignity of the person”, and it directs its
main efforts towards the European Court of Human Rights, the Council of Europe, the European
Parliament, the Organization for Security and Cooperation in Europe, and the United Nations
(ECLJ 2013a). The ECLJ was founded by Jay Sekulow, who is also its Chief Counsel, and
Thomas P. Monaghan, an ACLJ Senior Counsel who has worked with Sekulow since 1986, and
now oversees the ECLJ (ACLJ 2012g). Like the ACLJ, the ECLJ is staffed with both Protestant
and Catholic lawyers (Rossoporpora 2014). Grégor Puppinck, a former teacher of human rights,
international law and constitutional law at the University of Haute-Alsace School of Law, is the
ECLJ Director General (ECLJ 2013a; OSA 2012). In 2007, the ECLJ was granted Special
Consultative Status with the United Nations. This has opened a way for participation in bodies

47
The ACLJ also partners with Handong International Law School in South Korea (Sekulow 2011b).
48
The Court supervises the enforcement of the European Convention of Human Rights (i.e. individuals’ rights).

44
like the Human Rights Council, the General Assembly, and the International Criminal Court. One
major activity of the ECLJ at the Human Rights Council is to produce regular reports on the status
of religious freedom in various UN member states. It has promoted the cause of persecuted Christ-
ians in Muslim countries, and has argued against Islamic anti-blasphemy laws (ECLJ 2013b;
Barrans 2011). The ECLJ’s main representative at the UN is Nathanael Bennett, who is also the
director of the ACLJ’s Governmental Affairs Office in Washington D.C. (ACLJ 2012r). At the
first glance, then, the ACLJ may seem distant from the lobbying at the UN, since this is part of the
ECLJ’s activity. It is nevertheless the same person involved, thus linking the law firm’s efforts
towards the UN with its efforts towards the US government in Washington.

The Two Faces – a ‘Mediator’ and a ‘Gateway’

In the introductory chapter, I drew up a model based on Habermas’ ideas of the role of religion
in the political public sphere, i.e. how religion may contribute to the forming of public opinion
and will (2005:12-15). This model distinguishes between two types of public spheres: a formal
(i.e. the political debate at the institutional level of parliaments, courts, and administrations),
and an informal (i.e. the political debate in society at large). As we have seen in this chapter, the
ACLJ clearly seeks to influence the opinion and will of both spheres. According to Rawls,
whose ethics of citizenship works as a starting point for Habermas’ discussion, religious
arguments are not legitimate reasons in the public sphere. Habermas, on the other hand, opens
for the use of religious arguments in the informal public sphere, but sets as a condition that
these must be translated into a neutral (i.e. secular) language in order to enter the formal public
sphere, e.g. a court. This model serves well to illustrate how the ACLJ works in the field of
litigation, as well as its position within the American society.
As a non-governmental organization, the ACLJ belongs to the informal public sphere.
However, as a professional law firm it also interacts directly with various governmental insti-
tutions, for instance when it tries to convince a court to adopt its arguments as a basis for a
ruling, or when it participates in the drafting of a new act. In other words, to promote their
causes, the ACLJ contributes to the political debates of both public spheres. This twofold role can
be illustrated by the image of Janus49, the Roman god with the two faces (see attachment 2).
The two faces of Janus points in opposite directions. For the sake of visualization, we can
imagine that one of the faces is directed towards the informal public sphere, while the other
points towards the formal public sphere. The arguments, coming from either the one mouth or

49
I want to stress that it is the image of Janus that is used for my illustration, not the god himself, his status as a
god, or the myths concerning him.

45
the other, will thus be aimed at their specific sphere. An important point is that these arguments
may be similar, or they may differ. The formal public sphere, however, will reject certain types
of arguments, namely those that cannot be accepted by the whole society as legitimate justifi-
cations for a law or a ruling. This places certain restrictions on the face that is directed towards
the governmental institutions. We can, like Habermas, think of it as a filter (2005:15). The other
face, though, has no such restrictions. In theory, it could follow the scheme of Rawls and omit
religious arguments altogether. However, in the case of the ACLJ this is not really an option.
The face that is directed towards the informal public sphere needs religious arguments, not only
to catch the attention and gain the support of Evangelicals and other conservative Christians in
the US, but also to influence their opinion; why they ought to support a certain cause, or how
they could most effectively take action. Put short, the ACLJ needs to speak in both directions
because it targets both directions50.
Janus was associated with passageways, bridges and doors (Morford and Lenardon
2009:665). This aspect of the two-faced god may serve to illustrate how the ACLJ works as a
‘gateway’ for religious arguments, or perhaps more precise, for religious causes to enter into
governmental institutions in the form of neutral, secular arguments. The ACLJ can thus be said
to function as a ‘mediator’ between the Evangelical movement and the formal public sphere,
e.g. that of a secular court. The key to understand the ACLJ’s role – and its influence – is found
in the fact that governmental institutions need secular arguments to formulate and justify their
decisions (comp. Habermas 2005:13). Regardless of what the decision is about, it must be
legitimated in a neutral language. Hence, when the ACLJ gives its contribution of arguments to
the courts, what it often provides is a secular justification for a religious cause – which the court
can choose to adopt (because of its neutral language), if it concurs. In the subsequent chapters I
will explore how the ACLJ translates its religious and moral causes into a neutral language, and
how these arguments are received by (per definition) secular courts. I will look at two of the
fields in which the ACLJ is most heavily engaged: the fight against abortion, and the protection
of public religious expressions (church/state issues).

50
To be sure, I do not say that the ACLJ does not use secular arguments when it addresses the informal public
sphere. It most certainly does – on its web page, in its publications, or when interviewed by the press. My point,
however, is that the law firm also needs religious arguments in order to speak a language that religious people
understand. This is similar to how many leading American politicians use a religious language in their campaigns to
attract certain voter groups (see chapter 1). The ACLJ may for instance employ a language that is directly
religious when it presents its former victories in court, as can be illustrated by a statement made by Sekulow in
an official ACLJ video on YouTube. Commenting on the Supreme Court decision in Board of Educations v.
Mergens (1990), the ACLJ leader says: “It wasn't just a little victory. It was eight justices out of nine. What does
that say? God answers the prayer of his people” (Sekulow, YouTube 2011:min.02:34-02:43).

46
4 Defending the Rights of the Unborn
The issue of abortion is not one divided along religious lines. And it has nothing to do with the separa-
tion of church and state. Certainly it is not by any means uniquely the Roman Catholic issue that the
pro-abortionists pretend. The right of people to exercise their view of life and death to those who
represent them in the democratic process, and to be heard in the courts, rests only on their being citizens
and on being human beings. Abortion is not only a religious issue. It is a human issue.

Francis Schaeffer, Whatever Happened to the Human Race? (1979:min.35:23-36:00)

In the early 19th century, abortion was rather uncommon in the USA. This changed, however, in
the mid-century, with abortion numbers peaking in the 1860s and 1870s (Sauer 1974:53-54).
From 1850 to 1880 – parallel to the increase in abortion rates – most states adopted laws that
made abortion a crime. In addition, the federal Comstock Act of 1873 banned the distribution,
mailing, and import of contraception and abortion articles. In some states these regulations were
made even stricter. Largely due to the efforts of the women’s rights movement – litigation being
one of their main tools – the 1950s and 1960s saw an increasing liberalization of the 19th
century state laws on women's reproductive health. By 1970, four states had legalized abortion,
while another twelve had made their laws more liberal (Eskridge 2002:2117-2123). The early
resistance against the efforts to reform and repeal the abortion laws was predominantly Roman
Catholic (Epstein 1985:94-95). As we saw in chapter 1, it was not until the late 1970s that
abortion became a major Evangelical issue51. The mobilization of Evangelicals into pro-life
politics and action en masse was largely a result of books, films, and appeals made by leading
figures, like Graham, Schaeffer and Koop (Martin 1996:156,239). Today the issue of abortion is
prominent as a matter of faith, and the anti-abortionists frequently invoke the constitutional
right to religious liberty in support of their claims.
In this chapter, I will look at arguments presented by the ACLJ and its European
affiliate, the ECLJ, in and outside courts concerning abortion. Since the law firms’ activity – as
well as the Evangelical mobilization and engagement in general – can only be properly under-
stood in light of the historical development, I will first give an overview of the history of

51
This development can be illustrated by the Southern Baptist Convention’s resolutions on abortion. In 1971, a
clear majority supported a resolution which encouraged SBC members to “work for legislation that will allow the
possibility of abortion under such conditions as rape, incest, (…) severe fetal deformity, and (…) likelihood of
damage to the emotional, mental, and physical health of the mother” (SBC 1971). The 1974 resolution confirmed
this “middle stand”, while later resolutions increasingly emphasized the Christians’ duty to work for legislation and
a constitutional amendment prohibiting abortion, the only exception being “to save the physical life of the mother”
(SBC 1982). In the 1980s, the resolutions begin to include medical and biblical references to life beginning at
conception, the disastrous effects of abortion on society, the high number of innocent, unborn babies murdered
daily, and, from the 1990s, opposition to taxpayer funding of this misdeed. Abortion is described as a “national sin”
(SBC 1984), and later – like Communism in the mid-20th century (see chapter 1) – a reason for God’s judgment
(SBC 1996). In 2003 the SBC renounced the 1971 and 1974 resolutions, blaming its former leaders for blindly
adopting the unbiblical pro-choice agenda (SBC 2003; 2013).

47
abortion in US law, including the most important Supreme Court cases, before I briefly present
the ACLJ’s involvement in the issue. A European case, A, B and C v. Ireland, serves to
illustrate the law firm’s international engagement. The chapter’s main focus will be on the
controversy about the Affordable Care Act (‘ObamaCare’) and the so-called ‘abortion pill’.
After a short presentation of the most central arguments used by the ACLJ in the informal
public sphere, I will take a closer look at their argumentation in one federal court case, Korte v.
U.S. Department of Health and Human Services. This case was chosen for two reasons: First, it
represents a current controversy in the US in which the ACLJ has taken a leading role. Second,
it is one of seven similar ACLJ cases involving the issue, and perhaps the one that is mentioned
most frequently by the ACLJ itself, thus making its documents readily available online. The
‘abortion-pill’ controversy will here be used to show how the ACLJ relates to the Evangelical
movement and its causes in three important ways.

Abortion in US Law and Courts

When Schaeffer in his Christian Manifesto complained about how the American society had
replaced God’s principles with a secular humanist worldview, he referred to a 1973 abortion
case, Roe v. Wade, as the clearest illustration of the resulting relativism of law (1981:48). Roe
was a landmark decision in which the Supreme Court ruled that a 19th-century Texas law, which
prohibited all abortions except to save the life of the mother, was unconstitutional. The Court
held that the law deprived women of their 14th Amendment due process liberty52 to control their
body and to terminate pregnancy in the first trimester (Eskridge 2002:2124). One hundred years
after the federal Comstock Act (1873) banned trade and circulation of abortion devices and
other ‘immoral articles’, abortion was no longer considered a crime, but – with some limitations
– a constitutional right. The Supreme Court’s decision had implications for abortion laws in all
50 states. In view of these abrupt changes, it is perhaps not so difficult to understand the sense
of relativism experienced by Schaeffer and other Evangelicals. The way to Roe, however, was a
long one. Failing to influence the legislature, and inspired by the civil rights movement, the
women’s right movements turned to the courts in an effort to abolish the Comstock Act and the
various state bans on abortion (Eskridge 2002:2120).
The development that led to the changes in US abortion laws began with a gradual
acceptance of contraceptives. In 1916, Margaret Sanger, a prominent spokesperson for the
cause, opened the first birth control clinic in the US. She was soon sentenced to jail together

52
The 14th Amendment guarantees all federal privileges and immunities to all US citizens, and declares that no
state shall “deprive any person of life, liberty or property, without due process of law” (see also chapter 2).

48
with her sister for violating a New York ban on distributing articles of indecent and immoral
use. The Supreme Court declined to review her appeal as the issue in those days was not considered
a federal question. The state court nevertheless held that the New York law allowed physicians
to prescribe contraceptives to treat disease. In the 1930s, as a result of several state and federal
court rulings, contraceptives were increasingly recognized as means to promote health and save
lives. By 1940, there were birth control clinics receiving public funds in 36 states, while another
ten states allowed privately run clinics. Then, in Griswold v. Connecticut (1965), the Supreme
Court decided that married couples have a constitutional right to family planning and agreed
sexual intercourse without governmental interference. In Eisenstadt v. Baird (1972) this right
was broadened to include unmarried couples, thus underlining that the right belonged to each
individual regardless of marital status (Eskridge 2002:2118-2122).
The influence of Griswold reached further than the use of contraceptives. Various lower
courts interpreted the Supreme Court ruling to protect even the right of single women to terminate
pregnancy. Such broad interpretations implied that the states’ abortion laws were against the
Constitution. In 1973, the Supreme Court agreed to review two such cases, Roe (see above) and
Doe v. Bolton, the latter involving a recent Georgia law allowing abortion on certain conditions
when approved by a hospital staff committee. The very moment the Supreme Court declared
these state laws unconstitutional, a woman’s right to choose whether to continue or terminate
pregnancy was established as a citizen right protected by the Constitution53. The ruling did not,
however, settle the controversy between pro-abortionists and the growing pro-life54 movement.
The following decades both Catholics55 and Evangelicals lobbied Congress, mobilized their mem-
bers to vote for conservative political candidates, and addressed the courts in an effort to overturn
Roe, or at least to influence the judges to give it a narrow interpretation. Like the pro-abortionists,
the opponents of abortion employed constitutional arguments, claiming that the legislature – not
the judiciary – should decide such sensitive questions; that morality and family issues were not
under federal, but local (i.e. state and family) authority; and that the abortion-protecting rules
suppressed the rights of fetuses and parents. In Maher v. Roe (1977) the Supreme Court held that
women, despite their right to abortion, were not entitled to have it paid for by the state. Although
new justices appointed by President Reagan made the court more conservative in the 1980s, the
anti-abortionists still failed to overrule Roe. Then, in Webster v. Reproductive Health Services

53
As in Griswold, the Supreme Court opinion in Roe held that the Texas law was a violation of the Due Process
Clause of the 14th Amendment (Roe v. Wade, Opinion, 1973). See footnote 52.
54
A name used by the anti-abortionists to emphasize that their fight is for right of the ‘unborn baby’ to live.
55
An example of the Catholic engagement to fight abortion is found in the effective lobbying activity of the U.S.
Conference of Catholic Bishops in Congress (see Basset 2011).

49
(1989) and Planned Parenthood v. Casey (1992), the Supreme Court acknowledged the states’
interest in protecting (potential) life, and opened for certain regulations as long as these did not
place a substantial obstacle in the path of a woman seeking abortion of a fetus incapable of surviv-
ing outside the womb. Acceptable regulations could be the requirement of as a woman’s informed
written consent or parental consent for minors (Eskridge 2002:2123-2151; Epstein and Kobylka
1992:283).
Both pro- and anti-abortionists have put pressure on Congress to pass laws that directly
or indirectly protect and promote their cause. Compared to the high number of bills on abortion
that have been proposed, relatively few have become law. A search for “abortion” in the Library
of Congress gave 1642 hits from 1973 till present56. The number of proposed bills increased
noticeably from the mid-1990s and has remained high. Proposals typically include restrictions
on the legal performance of abortion and on its funding. The bills that have become law reflect
the various interests that are involved in the abortion battle. Shortly after Roe, Congress extended
the Public Health Service Act of 1944 to protect health care workers performing or assisting
lawful abortions, as well as those who due to religious or moral convictions refuse to participate
in such procedures. In 1978, an amendment to the Civil Rights Act (1964) exempted employers
from paying health insurance benefits for abortions, except when the mother’s life and health
are endangered. The 1980s saw the rise of some more aggressive pro-life groups, like Pro-Life
Action League (1980) and Operation Rescue (1986), typically blocking entrances to abortion
clinics, protesting, and trying to persuade women not to enter. After being sued by the National
Organization for Women, their activities were prohibited by court injunctions across the nation.
In return, the pro-life protesters claimed that the injunctions violated their 1st Amendment
freedom of speech. In Madsen v. Woman’s Health Center (1994) members of Operation Rescue
– supported by an ACLJ amicus brief – challenged the injunctions which prohibited their
activities outside a Florida clinic. The Supreme Court upheld a 36 foot buffer zone outside the
clinic, but invalidated restrictions that were too broad, thus underlining that the injunctions
should not restrict speech more than was necessary to protect significant governmental interests
(Eskridge 2002:2155-2156). About one month before this ruling, Congress passed the Freedom
of Access to Clinic Entrances Act, which interestingly enough combines the protection of a
woman’s right to enter an abortion clinic (and to obtain an abortion), with the protection of a
person’s right to enter a place of religious worship to exercise his or her religious freedom. The

56
The search (conducted 01/07/14) covered bills, laws, amendments and resolutions. The number of registers
bills was 1301, peaking with 118 in 1995/1996. The number of laws was 156. A large number of the laws (and
bills) only indirectly involve abortion. Typical is the prohibition of use of a certain fund for abortion.

50
act made it clear, however, that it did not prohibit peaceful demonstrations, picketing, and
similar expressive conducts outside any of these facilities. In the Born-Alive Infants Protection
Act of 2002, Congress defined the federal use of the words "person," "human being," "child,"
and "individual" to include every human infant born alive, also when as a result of abortion. The
following year it banned ‘partial-birth abortions’, defined as late term abortion procedures in
which the fetus is partially taken out of the womb and killed. The citizen rights of the unborn
child was further strengthened by the Unborn Victims of Violence Act (2004), which made
bodily injury to an unborn child or its death due to violence, a separate criminal offense. In
addition, several laws indirectly restrict abortion by prohibiting the use of certain funds for
abortion, including for population planning and health programs, both nationally and inter-
nationally. The establishment of these laws shows that Evangelicals, and their cobelligerents,
indeed are capable of influencing societal development through the making of new laws.

The ACLJ’s Involvement in Abortion Cases

Looking at Evangelical participation in Supreme Court cases from 1971-2000, Krishnan and
den Dulk found that Evangelical groups have filed amicus briefs in every abortion case since
1989, and sponsored several of them, the ACLJ being one of the most active (2002: 249). In
the mid-1990s, the ACLJ’s agenda was dominated by abortion protestation cases, and for the
most part the law firm participated as a sponsor. To comparison, it has been involved in few
abortion rights cases, and then always as an amicus (Hacker 2005:41-43).
The dominance of abortion protestation cases in the 1990s was related to the increasing
civil disobedience activities of certain Catholic and Evangelical groups, such as Operation
Rescue (see above). To limit their activity, pro-abortionists filed several lawsuits, some of
which went all the way to the Supreme Court. In his first Supreme Court abortion case, Bray v.
Alexandria Women’s Health Clinic (1993), Sekulow represented pro-life protesters who had
been sued by abortion clinics for violating the Ku Klux Klan Act of 1871. The Supreme Court
ruled in favor of the anti-abortionists as the law was aimed at class-based discrimination and
could therefore not be applied. In two other Supreme Court cases, Schenck v. Pro-Choice
Network of Western New York (1997) and Hill v. Colorado (2000), Sekulow again defended the
free speech rights of pro-life activists outside abortion clinics, this time with mixed results.
Commenting on Schenck, Hacker (2005) makes an interesting remark regarding Sekulow’s way
of litigating. While challenging injunctions that prohibited activists from gathering outside
clinics (‘fixed buffer zones’) and around cars, patients, and employees (‘floating buffer zones’),
Sekulow nevertheless showed respect for previous Court rulings which had acknowledged a

51
right to abortion. He was, to use Hackers words, “willing to play by the rules of the court” in
order to keep the door open for Christian protesters to perform their message (Hacker 2005:152).
In Schenck, the ACLJ won a partial victory as the Supreme Court held that only the ‘fixed
buffer zones’ were constitutional, while the ‘floating buffer zones’ violated the protesters’ free
speech rights. Later Sekulow represented Operation Rescue in a case that reached the Supreme
Court twice (2003, 2006), again ruled in favor of the protesters.
In recent years the ACLJ has engaged in an economic strategy which it refers to as its
“fight to defund the abortion industry and save the lives of countless unborn babies” (Clark
2012b). Various states have passed laws that prevent abortion clinics from receiving funds
from ‘taxpayer money’. Planned Parenthood, an organization whose roots go back to the
clinic opened by Sanger in 1916, has responded with lawsuits57. The ACLJ has filed amicus
briefs in several of these cases in support of the states (Clark 2012b, see also Weber 2013a).
The ACLJ has also been engaged more directly in the making of restrictive state abortion
laws. For instance, ACLJ Senior Litigation Counsel Walter M. Weber 58 drafted the Ohio
Heartbeat Bill59 together with a Catholic professor of law. Both defended a similar heartbeat
bill – prohibiting abortion after the heart of the fetus has begun to beat – at a state legislative
hearing in Kansas in March 2013 (Weber 2013b).
A leading European abortion case, A, B and C v. Ireland (2010), may serve as an illu-
stration of the law firm’s international engagement, in this instance through its European
affiliate, the ECLJ. In 2005, three Irish female residents (A, B and C) challenged Irish
abortion laws at the European Court of Human Rights (ECtHR). All women had become
pregnant unintentionally, had an abortion performed in England, and had needed medical
follow-up when they returned to Ireland. In addition, applicant C had recently been treated for
a rare type of cancer, and had – not knowing she was pregnant – gone through some tests
contraindicated during pregnancy. All women claimed that the criminalization of abortion
posed a threat to their physical and mental health, as well as violated their rights in the Euro-
pean Convention on Human Rights (ECHR). The case was transferred directly to the Grand

57
See e.g. http://pdfserver.amlaw.com/tx/planned_parenthood_complaint.pdf
58
The cooperation between Catholics and Evangelicals on the issue can be further illustrated by how Weber,
prior to joining the ACLJ staff, worked for the Catholic League for Religious and Civil Rights (ACLJ 2013g).
59
The bill states that women who consider having an abortion, first must be informed whether the fetus has a
heartbeat – the constitutionality of which is defended by a state’s right to require an informed consent (establish-
ed in Casey) – and that a fetus with a heartbeat is protected from being killed by an elective abortion (The Facts
on H.B. 125). In May 2013, a federal district court placed preliminary injunctions on the then two months old
Arkansas’ Human Heartbeat Protection Act, which banned abortions after 12 weeks of pregnancy, except in
cases of rape, incest, and threat to the mother’s life. A month later, a slightly younger, but stricter ban from
North Dakota was declared unconstitutional by another district court (Eckholm 2013).

52
Chamber of the ECtHR, with hearings in December 2009. Representing an Irish Member of
the European Parliament, the ECLJ filed two amicus briefs60, offering its support to the Irish
government. In its brief, the law firm placed emphasis on Ireland’s national sovereignty and
its duty to protect the life of its inhabitants, including those not yet born. It also sought to
show that neither international law nor the ECHR contain a ‘right’ to abortion. In December
2010, the Grand Chamber ruled that only applicant C’s rights of the ECHR had been violated.
The Court unanimously held that Ireland had failed to establish functional procedures that
could determine if a woman had a right to abortion, a right which according to the ECtHR did
exist in the Irish constitution when the mother’s life was at stake (A, B and C, §264). Not
surprisingly, both pro-abortionists and pro-life groups have published comments on the case,
placing emphasis on the parts of the ruling which best support their cause61. On their web
page, the ECLJ applauds the ECtHR for recognizing the “right to live for the unborn”, for
accepting Irish sovereignty, and for denying that there is a right to abortion in the ECHR.
However, it strongly rejects the Court’s claim that the Irish constitution allows for “lawful
abortions”, fearing that such interpretations will force Ireland to recognize a right to abortion
(ECLJ 2010). In a Communication to the Committee of Ministers62 at its Human Rights meet-
ing in September 2012, the ECLJ gives its view of how to interpret the A, B and C judgment.
While describing itself in the amicus brief to the ECtHR as “dedicated to the protection of the
sanctity of human life”, the ECLJ here presents itself as an organization “dedicated to the
promotion and protection of human rights” – perhaps in an effort to make its interpretations
seem more disinterested. In the Communication, the ECLJ explains why the ruling in A, B
and C does not require that the Irish government liberalizes its abortion law: since abortion
was not found to be a human right, it would be beyond the powers of the ECtHR to make such
demands; the only change Ireland had to make, was to establish provisions for situations
similar to that of applicant C. However, “Ireland is not required to make sure that abortion
would be available to applicant C, but only to clarify its regulation in one sense or the other”,
for instance through medical guidelines (ECLJ 2012). In this way the ECLJ provides the Irish
(and other) government(s) some legally based arguments for interpreting the ECtHR decision

60
One of the briefs were filed together with another American Evangelical law firm, the Alliance Defense Fund
(acting on behalf of the Family Research Council, a pro-life organization in Washington), and the Society for the
Protection of Unborn Children (a British interreligious pro-life organization).
61
This statement is based on a random web search for the case, and a reading through of a sample of comments.
62
The executive body of the Council of Europe, consisting of the member states’ Ministers of Foreign Affairs.
The Committee supervises the execution of the ECtHR judgments (Council of Europe 2013).

53
as narrowly as possible, in this instance with hardly any practical implications at all63. This
example shows how the law firm not only targets the court in order to influence its decision, but
also the parties involved in interpreting and implementing the decision.

The Affordable Care Act and the Fight against the ‘Abortion-Pill’
One of the greatest controversies related to abortion in the USA today involves the Affordable
Care Act (ACA) of 2010, also known as ObamaCare. The ACA enforces a major reform in health
insurance. The purpose of the act is to reduce the number of uninsured, increase the quality of
health insurances, protect people from abusive practices, and preserve already well-functioning
arrangements (whitehouse.gov). The act requires that everyone who can afford a health insurance
must have coverage within March 31st, 2014 or pay a tax penalty (the individual mandate). Such
coverage may be obtained through a public insurance program (e.g. Medicare or Medicaid), a
state marketplace insurance (private companies), or an employer sponsored plan. People with low
income and members of certain religious sects with religious objections to insurance are exempted
from paying the fee (HealthCare.gov 2014a). A similar penalty (the employer mandate) must be
paid by large businesses64 that do not provide their employees a qualified health insurance65. The
reform has been highly controversial. In National Federation of Independent Business v. Sebelius
(2012) 66 the Supreme Court declared that the individual mandate is constitutional since the
penalty is considered a tax, and it is within the authority of Congress to regulate taxes. At the
same time the Court held another part of the reform – the expansion of a social health care pro-
gram for low-income people (Medicaid) – unconstitutional, thus making it possible for states to
opt out of the program. It is, however, the employer mandate that has provoked anti-abortionists
the most.
The ACA neither prohibits nor requires that a qualified insurance plan covers abortion, but
leaves that decision to the various state authorities. The law itself specifies that nothing in it is
intended to overrule a state’s ban on funding abortions or any of its procedural requirements, such
as parental consent for minors (ACA, Sec.1303). According to the pro-abortion Guttmacher
Institute (2014), several states have already enacted laws that in various ways restrict the abortion
coverage of available insurance plans. Whether a woman will have her abortion covered or not,
63
However, in July 2013 Ireland did pass a new law, the Protection of Life During Pregnancy Act, permitting
abortion when there is a real threat to the mother’s life, including from suicide. This happened after a woman
died from pregnancy complications after being denied an abortion which could have saved her (BBC 2014).
64
Businesses with at least 50 full-time employees (i.e. employees working at least 30 hours per week).
65
Companies that do not offer a qualified insurance plan must pay a daily fee of §100 per employee, while a
failure to provide any plan will result in an annual penalty of $2000 per employee (the first 30 excluded).
66
In this case the ACLJ filed an amicus brief together with 117 Members of Congress, asserting that the
individual mandate of the ACA was unconstitutional, and calling for the whole act to be invalidated.

54
and under what conditions (e.g. life, rape, incest), consequently varies from state to state. The
ACA does, however, require that a qualified insurance plan covers contraceptives. This includes
barrier methods, hormonal methods, implanted devices, and emergency contraception (‘the
morning-after pill’), as well as sterilization procedures and counseling (HealthCare.gov 2014c).
Traditionally, most Evangelicals have been supportive of contraceptives (Barrick 2010). How-
ever, because many believe that life begins at conception, the coverage of emergency contraception
has become a major problem – especially since the law obligates employers to provide a qualified
insurance plan to their employees, thus placing them at risk of actually ‘funding an abortion’67.
Based on public feedback, the Obama administration released some final rules in June 2013
which exempt employers of religious organizations (i.e. houses of worship) from covering
contraceptives in the health plans of their employees who share the same beliefs. A similar
exemption is made for non-profit religious organizations (e.g. hospitals and higher education) that
object to contraceptives on religious grounds, but in these cases female employees will receive
separate contraception coverage68 (HHS.gov 2013; Federal Register 2013).
Both Catholics and Evangelicals have turned to the courts in order to stop the enforce-
ment of the ACA’s contraception mandate. On May 21st, 2012 – about one month before the
Supreme Court ruled on the constitutionality of the individual mandate – 43 Catholic groups,
including several important dioceses and universities, filed 12 federal lawsuits against the
Obama administration. The petitioners claimed that the ACA violated their constitutionally
protected religious freedom since abortion, contraception and sterilization are contrary to
Catholic teaching. The lawsuits immediately gained support among Evangelicals (Fox News
2012; Leclaire 2012). In all 12 cases the ACLJ filed amicus briefs together with 79 Members
of Congress, urging the federal courts to accept the lawsuits (White 2012a). While these suits
were filed by religious organizations, a similar ‘wave’ of lawsuits was about to rise from
private, secular businesses whose holders found the contraception mandate incompatible with
their religious beliefs69. The first of these cases was filed by the ACLJ in March 2012 on
behalf of a Catholic business owner who desired to run his business in accordance with his
faith. The contraception mandate put him in a dilemma: either comply with the mandate’s
requirements, and thus violate his faith, or pay “ruinous fines that would have a crippling

67
Already in 1994 the Southern Baptist Convention passed a resolution against President Clinton’s order to
make the ‘French abortion pill’ available in the US. The SBC joined other pro-life organizations in a boycott of
the drug companies as the pill would make abortion more accessible and more frequent (SBC 1994).
68
Even though such institutions do not have to pay for it, the coverage is still part of the insurance plan, and the
institution must sign a form that authorizes the insurance company to provide the contraceptive coverage.
69
According to the Becket Fund, one of the law firms arguing these cases, 45 non-profit and 46 for-profit
lawsuits have been brought against the employer mandate, most of which have resulted in injunctions (2013).

55
impact on [the company’s] ability to survive economically” (O’Brien v. U.S. Department of
Health and Human Services, Complaint 2012:7). The lawsuit was dismissed by the district
court, while the appellate court ordered preliminary injunctions, delaying the implementation
of the mandate while the case proceeded in court. The ACLJ has since filed federal lawsuits
on behalf of six other private businesses – five run by Catholics and one run by Evangelicals
– gaining similar injunctions in all (Surtees 2013). One of these cases, Korte, will be presen-
ted below. All in all, the ACLJ has filed 15 amicus briefs in support of other challenges
against the ACA’s contraception mandate (ACLJ 2013a). Due to conflicting rulings by the
lower courts, the Supreme Court recently agreed to review two such cases, involving one
Evangelical and one Mennonite business 70 . A major question to be resolve is whether a
private business has the same religious rights as an individual. If the Court finds this to be the
case, employers who object to birth control on religious grounds must be exempted from the
employer mandate, just as individuals are from the individual mandate.

The ACLJ’s Arguments against the ACA in the Informal Public Sphere
It is an aim of this inquiry to examine how Evangelical lawyers – here represented by the ACLJ
– translate their religious and moral causes into a language which may increase their chances of
success in a secular court. Recalling the image of Janus, the two-faced god, the inquiry seeks to
show how the ACLJ may work as a ‘mediator’ between the Evangelical movement and govern-
mental institutions; a ‘gateway’ through which the movement’s religious and moral causes may
enter the formal public sphere. Before I look at the ACLJ’s argumentation in Korte, I will give a
short summary of the most central arguments against the ACA that the law firm presents in the
informal public sphere, and point to two kinds of relationship between these arguments and the
Evangelical cause as a whole.
Preferably using the name ObamaCare, which seems to have more negative associ-
ations than the ‘Affordable Care Act’ (CNN 2013), the ACLJ has described the ACA as “the
greatest expansion of abortion since Roe v. Wade” (Clark 2012). While supportive of the pro-
life Catholic view, the law firm primarily focuses on emergency contraception (the morning-
after pill), which is constantly referred to as the ‘abortion-pill’. There are particularly three
themes that seem to dominate the law firm’s arguments in the informal public sphere. First,
and most frequently, the reform is described as an unprecedented and severe assault from the

70
The cases involved two private business run by Southern Baptists (Hobby Lobby) and Mennonites (Conestoga
Woods). The ACLJ has filed amicus briefs in support of both companies (ACLJ 2013b). Oral hearings were held
in March 2014, and the Court’s ruling is expected in June 2014.

56
Obama administration on religious liberty and on the Constitution: by forcing Americans to
pay for ‘life-ending abortion pills’ under penalty of law, the ‘abortion pill mandate’ violates
their conscience and their 1st Amendment free exercise of religion rights. Second, ObamaCare
is depicted as a ‘massive pro-abortion tax increase’ since taxpayer money assertedly is used to
expand the access to abortion. Third, though not so common, the reform is described as a
dangerous threat to and a radical assault on the Judeo-Christian values that are essential parts
of America’s history and heritage. In addition, the ACLJ complains that the reform is not
working, that it is harmful to America, and that it contradicts the will of the majority of
Americans. The ACLJ says it is committed to stop ObamaCare, and it considers litigation an
effective tool to do so.
The arguments presented by the ACLJ in the informal public sphere have a two-sided
relationship with the Evangelical cause of fighting abortion. In chapter 3, I suggested that the
ACLJ needs religious arguments in order to target a certain audience in the informal public
sphere. By this I do not mean that it has to use theological arguments, such as Bible quotes. The
ACLJ does not present its arguments to an empty room. There is an already established system of
meanings to which the words and arguments relate. As for the now vigorous Evangelical pro-life
involvement, a central part of this system was created by the call to common action presented by
Schaeffer, Koop and other prominent leaders from the 1970s, as well as the specific call to Christian
lawyers to do their duty and fight abortion through the courts (see chapter 1). We should here call
to mind Geertz’s remark on how a culture, as a system of symbols, works as a context for
understanding behaviors (1973:14). I will return to this point in chapter 6, but suffice it here to say
that in order to be properly understood, the ACLJ’s anti-ACA arguments must be viewed in light
of the Evangelical cause as a whole. On the other hand, the ACLJ also contributes to shaping this
contextual framework (see attachment 3). By depicting the contraception mandate as a religious
liberty issue, the law firm contributes to the creation of a public opinion that abortion – or more
precise, the pro-life stance – indeed is a religious question. Its arguments clearly appeal to the
target audience, underlining that fighting abortion is an important part of the Evangelical move-
ment’s religious and moral commitment. Moreover, the ACLJ’s description of the situation as a
severe governmental assault on the American constitution, religious liberty, and the long-standing
Judeo-Christian values of the nation, creates a picture that Christianity is under attack, and that
this development – as well as the government – must be changed in order to save the nation’s
moral health and future.

57
Korte v. U.S. Department of Health and Human Services71 – the Contraception Mandate
In an effort to influence the opinion of the formal public sphere, the ACLJ filed its second lawsuit
against the ACA contraception mandate in October 2012. The law firm here represented three
clients: Cyril and Jane Korte (husband/wife), and their family-owned company, Korte & Luitjohan
Contractors, Inc. (K&L). With about 90 full-time employees, the K&L is defined as a ‘large busi-
ness’ and hence obligated to comply with the mandate. Most of their employees were covered by
separate insurance plans through their unions, and the Kortes desired to offer the remaining 20 a
plan that was consistent with their Catholic faith and the company’s ethical guidelines. Established
thirteen days before the suit was filed, the guidelines72 stated that the K&L “cannot arrange for,
pay for, provide, facilitate, or otherwise support employee health plan coverage for contraceptives,
sterilization, abortion, or related education and counseling” as these services, according to their
faith, were considered “gravely sinful” and “immoral” (K&L Ethical Guidelines 2012). The
Kortes thus faced a similar dilemma as the business owner in O’Brien (see above): either to
comply with the mandate and violate their faith and values, or pay ‘ruinous fines and penalties’ –
in this case an annual penalty of almost $730,000. In August 2012, the Kortes discovered that
their current insurance plan covered contraception, sterilization, and abortion. Now they desired to
implement a plan that excluded these services. This had to be done before January 1, 2013, which
was the annual renewal date of the K&L’s group health plan.
The plaintiffs argued that the contraception mandate violated the Religious Freedom
Restoration Act (RFRA) of 1993, the Free Exercise, Establishment, and Free Speech Clauses of
the 1st Amendment, and the procedures for rulemaking established by the Administrative Proce-
dure Act of 2006. With exception of the Establishment Clause claim, which is only found in one
other lawsuit (Griesedeick), the allegations are identical to those of the other suits filed by the
ACLJ73. Based on the RFRA and the Free Exercise Clause claims, plaintiffs also requested a

71
The analysis of the arguments in Korte is based on the following documents filed by the ACLJ: Complaint
(10/09/12), Motion for a Preliminary Injunction (10/10/12), Motion for Partial Summary Judgment (10/10/12),
Emergency Motion for Injunction Pending Appeal (12/18/12), Opening Brief (01/28/13), and Reply Brief
(03/15/13). These represent all documents filed by the ACLJ in the Korte case, except the appeal to the circuit
court, which I was not able to find online. In addition the presentation includes the district court’s Order and
Memorandum (12/14/12), and the appellate court’s Order (12/28/12) and Opinion (11/08/13).
72
The state of Illinois (where the suit took place) exempts health care payers (such as the plaintiffs) from paying
for, or arranging the payment of, any health care service that violates their conscience as documented in their
ethical guidelines. The ACLJ frequently refers to the K&L’s ethical guidelines, but nowhere does it mention that
these were made less than two weeks before the complaint was filed. This is, however, mentioned by the district
court as a “palpable inconsistency” in their claim that the mandate substantially burdens their religious beliefs.
73
The other suits of the ACLJ are (filing date in parentheses): O’Brien (03/15/12), Griesedeick (10/19/12),
Gilardi (01/24/13), Lindsay (02/14/13), Bick Holdings (03/13/13), and Hart Electric (03/26/13). All suits were
filed before July 2013, when the implementation of the employer mandate in was delayed until 2015 (see
HealthCare.gov 2014b).

58
preliminary injunction barring the enforcement of the mandate against them while they
examined how to obtain an insurance plan consistent with their faith and the company’s ethical
guidelines. For the district court to grant such an injunction, they had to demonstrate a likelihood
of success on the merits (i.e. that they would probably win the case); that without the injunction,
they were likely to suffer irreparable harm which would not be outweighed by the harm to
defendants (the government) if the injunction was granted; and that an injunction served the
public interest. Consequently, this was what the ACLJ was trying to do. The district court
nevertheless dismissed the request, concluding that plaintiffs failed to show a reasonable
likelihood of success on the merits.
The RFRA, which was enacted in 1993 to strengthen religious freedom, played a central
role in Korte. This act prohibits federal laws that “substantially burden” the religious exercise of a
person, even if the burden “results from a rule of general applicability” – as is the case with the
ACA contraception mandate. The only exception is when the law is “the least restrictive means”
to further a “compelling governmental interest” (RFRA, Sec.3, a-b). According to the district judge
who dismissed the Kortes’ request, the ACA contraception mandate did not impose a substantial
burden on their free exercise of religion. Rather, it would most likely be found to be a “neutral law
of general applicability that only incidentally burdens Plaintiffs’ religious exercise” (Korte, Memo-
randum and Order 2012:16). The order was appealed. In late December 2012, the situation turned
around as the appellate court granted plaintiffs’ emergency request for injunctions while the case
proceeded, finding that the contraception mandate, because it was coercive, imposed a substantial
burden on their religious exercise (Korte, Order 2012:5-6). In November 2013, the court ruled that
all plaintiffs – both the business owners and their company – were qualified74 to challenge the
mandate, and that the government had not justified the burden imposed on their religious exercise
according to the RFRA requirements of ‘compelling governmental interest’ and ‘least restrictive
means’. Because plaintiffs were “very likely to succeed and the balance of harms favors protect-
ing [their] religious-liberty rights”, the appellate court reversed and remanded the case to the
district court with instruction to enter preliminary injunctions (Korte, Opinion 2013:4).

The ACLJ’s Argumentation in Korte

Unlike its outside court arguments, the ACLJ does not use the term ‘abortion pill’ in any of its
documents to the court. While the federal directions refer to the morning-after pill as a ‘contra-

74
In an article released three days after the ruling, the ACLJ described the decision as “significant”, as it was the
first appellate court to decide that “both the owners and their company have religious liberty rights that are
burdened by the Mandate” (White 2012b).

59
ceptive’, the ACLJ prefer describing it as an ‘abortion-inducing drug’ and ‘abortifacient’.
Although the Catholic Kortes, unlike most Evangelicals, also consider contraceptives and sterili-
zation as contrary to their faith (‘immoral’), the main emphasis in the briefs is on abortion. The
documents do not discuss whether abortion is right or wrong, whether it is a question of taking life
or not, or whether it is to be considered a part of religion. The only ‘hint’ to any of these questions
is the factual description of the Kortes’ belief that “actions intended to terminate an innocent
human life by abortion are gravely sinful” (Korte, Complaint 2012:5). The reference to emergency
contraceptives as ‘abortion’ should be considered natural in light of a world view that sees life to
begin at the moment of conception (see above). However, the question of definition and choice of
words may also have bigger implications. In Hobby Lobby v. Sebelius, the Evangelical case that
was heard by the Supreme Court in March 2014, the challenge was only against ‘abortion-causing
drugs and devices’ (or ‘abortion-causing contraceptive devices and pregnancy-termination drugs’)
and related services (Hobby Lobby, Complaint 2012:2,14-15). If the Supreme Court rules in favor
of the Evangelical holder and his business, the Court will indirectly define the drugs and devices
in question as ‘abortion’. Following the logic of litigation and the language of law, a possible next
step could be challenges to remove these drugs and devices from the ACA mandate and leave it to
the individual states’ authority. Such rulings could form a basis for other challenges, and so the
battle may continue.
Another remark regarding definitions is that the ACLJ does not use the word ‘secular’
when it refers to the Kortes’ company, the K&L. While both the government and the courts
describe the K&L as a secular, for-profit business or corporation, the ACLJ simply call it a
‘(for-profit) corporation or company’, or occasionally a ‘for-profit employer’. The ‘for-profit’
prefix marks a distinction from non-profit corporations, which work for educational, charitable,
religious, or similar purposes. However, the ACLJ does not accept a dichotomy that contrasts
‘for-profit/secular’ to ‘non-profit/religious’. Instead, the law firm tries to convince the court that
a for-profit company run by religious people is no less religious than its non-profit counterparts.
The ACLJ claims that the Government operates with a too narrow definition of ‘religious
employers’ when it only exempts non-profit religious organizations from the mandate. Hence
the mandate is not neutral, but discriminates between organizations. There are also other
reasons, the ACLJ points out, for why the ACA mandate is unfair. Most attention is given to the
fact that many ‘secular’ businesses (e.g. those with less than 50 employers) do not have to
comply with it – regardless of their view on contraceptives. Such arbitrary, but ‘intentional,
massive underinclusiveness’ shows, the law firm argues, that the RFRA’s demand of a

60
compelling governmental interest in order to place a substantial burden on someone’s religious
exercise, has not been fulfilled.
In addition to disagreements on how to define the morning-after pill (abortion or contra-
ception?) and the Kortes’ for-profit company (religious or secular?), there is one more important
definition battle fought in this case. The RFRA offers protection against federal laws which
substantially burdens “a person’s exercise of religion”. The question, then, is whether ‘person’
here also refer to corporations. Already in 1886, the Supreme Court decided that corporations are
protected as ‘persons’ under the 14th Amendment (Bellotti 1978:434). Moreover, in First National
Bank v. Bellotti (1978), the Supreme Court decided that corporations can exercise political speech
(e.g. by distributing ideas and information), and therefore are protected by the 1st Amendment.
However, according to the federal government, a corporation cannot exercise religion and is
therefore not covered by the RFRA. Although somewhat dubious, the district court agreed: the
K&L was not a person, and the company could only reflect the Kortes’ religious beliefs as there
was a ‘corporate veil’ between the company and its holders. Addressing the appellate court, the
ACLJ places more weight on showing that corporations are indeed legal persons under the RFRA,
and thus entitled to protection of their religious exercise. To show that corporations can exercise
religion just as much as they can exercise political speech, the ACLJ mentions various ways in
which companies – regardless of their profit status – can engage in religious acts, e.g. tithing,
donating money to charities, and acting or speaking in accordance with a certain faith. Further, to
dismiss the ‘corporate veil’ and show that a for-profit business is not separate from a religious
holders’ faith, the ACLJ quotes the Pontifical Council for Justice and Peace as it describes
business work as a Christian calling, and a ‘divided life’ as a failure to live up to God’s call
(Korte, Reply Brief 2012:10). This is the only instance where theology or religious authorities are
brought into the arguments. The appellate court here agreed with the ACLJ, and ruled that the
Government, through the mandate, placed a substantial burden even on the religious exercise of
the K&L.
Like others who have filed law suits because of the contraception mandate, the Kortes
do not want to pay for, facilitate, or support the services covered by the mandate. The Govern-
ment, however, claims that a funding provider does not facilitate the funded conduct when it
involves independent personal choices, e.g. that a female employer must herself choose to use
the birth control services provided by her health insurance. The ACLJ counters this by drawing
a comparison with how the Government itself acts, e.g. when federal funding programs exclude
activities which the Government does not want to facilitate. Often such exclusions have even

61
involved abortion. In a similar way funding providers of an insurance plans – like the Kortes –
may want to avoid promoting behaviors they finds immoral.
One of the most interesting parts of the arguments that the ACLJ presents to the court is
what seems to be a break with own principles. Arguing hypothetically, the ACLJ points out that
even if the ACA mandate really was used to further a ‘compelling governmental interest’, the
Government had still failed to fulfil the RFRA demand that the applied mean should be the ‘least
restrictive’. If the Government desired to promote health and equality through free access to
contraceptive services, there would, according to the ACLJ, be ‘a myriad of ways’ it could do so
without coercing plaintiffs to violate their faith. As examples the ACLJ mentions (1) tax deduc-
tions or credits for the purchase of contraceptive services; (2) providing it for free through existing
federal programs (e.g. Medicaid); (3) compensation from the Government; and (4) mandating
pharmaceutical companies to provide contraceptives to pharmacies, doctor’s offices, and health
clinics free of charge. However, in view of campaigns and statements made by the ACLJ in the
informal public sphere – e.g. its war to defund Planned Parenthood; its attack on the Obama
administration; and its opposition to the use of taxpayer money to fund abortion (ACLJ Petition
2012a; 2012b; Clark 2012c) – it is not very likely that the law firm would leave such interventions
undisturbed, should the Government ever apply them. However, in the logic of litigation and the
language of law such considerations are irrelevant. In the courtroom it is the issue in question and
the arguments brought forth that matter.
One final remark could be made regarding the ACLJ’s arguments in Korte. To recall the
words of Hacker, the ACLJ “play[s] by the rules of the court” (2005:152). They argue their
cause with references to laws, cases, and court rulings (preferably those that support their
stand), and shows respect for previous decisions. The advantage of this approach is obvious. In
his book, The Power of Precedent, law professor Michael J. Gerhardt discusses why Supreme
Court justices show respect to precedents in general, while it at the same time is impossible to
predict which precedent the Court may weaken or overturn. One explanation is found in what
Gerhardt calls ‘the golden rule of precedents’, which says that you shall treat other precedents
as you would like your own – and your favorites – to be treated. The strength of this golden
rule, Gerhard claims, can be illustrated by Roe v. Wade: despite the appointment of several
conservative justices, the decision has not yet been overturned (2008:3,199-201). The ACLJ
plays by a similar rule. By showing respect for previous court decisions, including those that are
not in accordance with its own view, the ACLJ contributes to create an environment which, in
the long run, may pay off with a similar respect to its own favored decisions.

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A ‘Gateway’ for the Pro-Life Cause
The aim of the ACLJ is to ensure that the causes of the Evangelical movement – such as the
pro-life issue – are protected by law (see chapter 3). As long as the society at large does not
support these causes or the religious arguments used to justify them, and as long as there is
a similar opposition within the governmental institutions, these institutions cannot accept
the causes of the Evangelical movement unless they are presented to them in a neutral,
secular language. Only then can the government make political decisions (e.g. laws, court
rulings, decrees, etc.) that are favorable to these causes. As shown above, the ACLJ – in its
very function of being a professional law firm – works as a ‘mediator’ and ‘gateway’ to
carry out this necessary translation (see attachment 3). Of course, the use of a neutral
language alone is not enough to win a case. The whole framing of the legal arguments is
important for the outcome, as Epstein and Kobylka found in their study of liberal
movements and forces that condition legal change (1992:311). The initiative to translate,
however, should be seen as the necessary ‘first step’.
Arguing against the ACA contraception mandate in Korte, the ACLJ presents its cause
primarily with references to the legal framework, trying to convince the court to adopt its
interpretation of it. Religious arguments are only sparsely introduced in order to strengthen
the claim that this is a matter of religious exercise suppression. While the ACLJ avoids its
favorite informal term (‘abortion-pill’), it nevertheless maintains a terminology which
conveys the Evangelical understanding that emergency contraception is in fact abortion. The
law firm’s arguments reflects the crucial role of definitions (e.g. of ‘person’) for how the
court may apply the legal framework in question. Moreover, the ACLJ’s insistence that for-
profit corporations run by religious people are just as religious as non-profit corporations,
makes perfect sense in light of Habermas’ remark that “many religious citizens do not have
good reasons to undertake an artificial division between secular and religious within their own
minds” (2005:14). However, the court cannot make a ruling based on, let’s say the Pontifical
Council’s statement that such a ‘divided life’ is a failure to live up to God’s call (see above).
The role of the ACLJ as a ‘mediator’ and its choice of arguments are therefore imperative, not
only for the outcome of the particular case, but also for the wider impact such rulings may
have on the rest of society.

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5 Separation of Church and State v. Judeo-Christian Tradition
The Lautsi case has a unique importance – that of symbolism. The case is symbolic because it questions
not only the legitimacy of the visible presence of Christ in the schools of Rome, but also in the whole of
Europe. Thus, Lautsi is a symbol of the current conflict regarding the future of Europe’s religious and
cultural identity.

Grégor Puppinck, “Lautsi v. Italy. An Alliance against Secularism” (2010)

While James Madison – the ‘Father of the Constitution’ – and many of the other founders of the
American republic held religious world views themselves, they nevertheless championed a strict
separation of church and state. This was not only to avoid religious suppression and intolerance,
but also to prevent the corruption of religion (Martin 1996:373; see also Madison 1785:§3,7).
When Madison warned against the Virginian bill to provide economic support for ‘teachers of the
Christian religion’ (see chapter 2), he drew a comparison with the European Inquisition. So far
America had offered protection to people from various nations and religions who had fled
oppression. The bill was, as Madison saw it, nothing but a new “signal of persecution”. It differed
from the Inquisition only in degree: while this type of legislation would be a “first step”, the
Inquisition was “the last in the career of intolerance” (Madison 1785:§9). The religious neutrality
of the Constitution was intentional, albeit not without controversy. Some argued that the ‘only
true God’ should be acknowledged in the founding documents. Yet, despite the general respect for
the divine, any such reference was omitted (Martin 1996:375). The Constitution was nevertheless
embedded in a culture dominated by Protestant Christianity (Bauszus 2009:354; Newman
2007:585). Consequently, it was in interplay with this culture it unfolded. When the French
politician and historian Alexis de Tocqueville wrote about his visit to America in the 1830s, he
expressed his astonishment that two elements which so often had been impossible to combine –
“the spirit of religion and the spirit of freedom” – in America were “incorporated into each other,
forming a marvelous combination” (quoted in Bauszus 2009:342).
This chapter looks at issues that concern the relationship between church (religion) and
state (political government). At the center of current debates stands the 1st Amendment which
states that “Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof”. While some see in this a strict separation, a provision for a purely secular
state which shall neither aid nor hamper religion, others believe that the state both can and should
support the church (Martin 1996:370). The latter side frequently relates its arguments to the
nation’s cultural heritage, which in this context refers to the Judeo-Christian tradition. The chapter
begins with a historic overview of some of the most important laws and court cases involving the
relationship between church and state. This presentation will not only work as a contextual

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background for the legal cases that I examine, but will also contribute to a better understanding of
why the Evangelical movement went political, and why it turned to litigation. My main focus will
be on public religious expressions, as opposed to private religious expressions in the public sphere.
Evangelical cause lawyers seek to protect both kinds of expressions, but the former has a greater
impact on the society; the expressions of public institutions, like schools and governments, may
have direct consequences for the lives of non-religious citizens and citizens of other faiths. After a
brief presentation of the ACLJ’s involvement in church/state cases, I will look at the law firm’s
arguments in favor of public religious expressions presented in the informal public sphere. I then
turn to the law firm’s argumentation in the formal public sphere, where I examine one American
and one European case. In Pleasant Grove v. Summum, the ACLJ represented a Utah city before
the US Supreme Court, defending its right to display a Ten Commandments monument in a
public park while rejecting a similar monument from a new religious group. This case was chosen
because it revolved around an argument which brings in an interesting perspective to the
church/state debate, namely governmental speech. In the European case, Lautsi v. Italy, the ECLJ
participated as amicus curiae, defending the display of crucifixes in Italian public schools. This
case is particularly interesting as it clearly demonstrates the potency of a cobelligerent approach,
as well as highlights the role of Evangelical law firms as providers of arguments.

Public Religious Expressions in US Law and Courts

While the American Constitution gave no privilege to any particular religion, the American
culture did. State laws criminalizing blasphemy and Sunday sacrilege endured well into the 20th
century, and were, if ever challenged, upheld by the courts (Gruber and Hungerman 2008:834;
Martin 1996:378; Post 1988:315-316). From the very beginning of the Republic, leading politici-
ans frequently referred to God and interpreted events in light of a Protestant Christian worldview
(Bauszus 2009:353-355; Newman 2007:591-592). Some governors and presidents proclaimed
days of fasting, prayer and thanksgiving. Others rejected such measures as not the government’s
business (Martin 1996:377; Greninger 1979:4-5). The role of religion in US history can therefore
be seen as a ‘tension’ between the constitutional principle of separating church and state, and the
strong cultural influence of Protestant Christianity. Perhaps somewhat surprising, the 1st Amend-
ment was not considered binding to the individual states until the Supreme Court in Cantwell v.
Connecticut (1940) decided it was. Prior to this, the provision was thought only to protect against
federal assaults (Martin 1996:378; Andersen 1940:151). This resulted in great variation between
the states, something which can perhaps best be illustrated by examples from the field of

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education. This has been one of the most controversial fields when it comes to church/state related
issues, and it has been highly central for the Evangelical engagement in politics and litigation.
In the early American republic, education of children was increasingly seen as a key tool
for a healthy state, and publicly funded schools became more and more common. These schools
would teach Christian ethics in a nonsectarian way, and – without comments – use the Bible for
reading (Maniloff 1994:219-221). The introduction of Bible reading may be related to the
widespread use and ownership of the English King James Bible among Protestants, as well as a
lack of other textbooks in the early 19th century (T.V.K. 1927:431). However, as the reading
was often linked with prayer and singing, it was difficult to separate it from the Protestant tradi-
tion. It seems nevertheless to have caused little controversy until the mid-19th century75. The
first lawsuit against the practice was raised in 1854 by a Catholic who had been expelled from
school because he refused to read the Protestant Bible, something which his faith did not allow
him. The following decades, several similar lawsuits were filed against Bible reading, recital of
the Lord’s Prayer, and the singing of hymns in public schools. Some state courts approved the
practices provided they did not go beyond ‘lip service’. Others found them to be violations of
their state constitution, which prohibited sectarian instructions in public schools and compelled
worship. Analyzing these decisions in 1927, T.V.K. found that the divergence between the
states was related to their different view on the Bible. The states that approved the practice did
not consider the King James Bible a ‘sectarian book’, while the states that struck it down held
the opposite view (T.V.K. 1927:431-434).
The development that eventually led to the ban on Bible reading and prayer in public
schools began with another compulsory school practice which, although not religious in itself, still
caused problems to religious minorities: the salute to the national flag while citing the Pledge of
Allegiance. In its original version from 1892, the Pledge of Allegiance went: “I pledge allegiance
to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice
for all.” In 1923, “my flag” was replaced by “the flag of the United States”. It was not until 1954
that Congress, urged by President Eisenhower, added the words “under God”, making it a pledge
to “one nation under God” (Publications.USA.gov). Several years before this final addition, the
US Supreme Court reviewed a case which involved the expulsion of two Jehovah’s Witness
children from school because they had refused to salute the flag on religious grounds. The Court

75
Some Protestants felt this education was ‘too godless’. Presbyterians tried to establish their own schools from
1840-70, but with little success. The first successful private schools were Catholic. As the immigration of
Catholics increased, church authorities urged each parish to establish denominational schools as an alternative to
the ‘Protestant’ public schools. However, not until 1884 was every parish obligated to do so, and Catholic
parents were told to send their children to these parochial schools (Rossi and Rossi 1961:302).

66
ruled that the government had a right to compel students to participate in such ceremonies, also
when conscience scruples were involved (Minersville School District v. Gobitis 1940). Three
years later the Court overruled that decision, now upholding the citizens’ right to abstain from
practices that offend the teaching of their religion or force their conscience. Then, in Everson v.
the Board of Education of Ewing Township (1947), a case involving economic compensation to
parents whose children travelled by public buses to parochial schools, the Supreme Court for the
first time drew a clear line between church and state in light of the 1st Amendment’s Establish-
ment Clause: neither the federal Government nor the states could set up a church, pass laws that
would aid a religion, or use tax-payer money to support religious activities and institutions. This
in turn laid the foundation for the 1962 Supreme Court ban of institutionally sponsored prayer in
public schools (Engel v. Vitale), and, the following year, a similar ban on Bible reading (Abington
v. Schempp) (Martin 1996:379-381). Despite the bans, many schools continued the practices.
Other schools went to the opposite extreme and prohibited even private religious expressions (den
Dulk and Pickerill 2003:429). As we saw in chapter 1, these developments worked as an impetus
to mobilize Evangelicals into politics. With time it also brought them to the courts.
If a top-down perspective (i.e. a focus on the government’s role) can be said to have
pushed religion out of public schools, a down-up perspective (i.e. a focus on the individuals’
rights) can be said to have brought it back. My contention is that this reversal would probably
not have happened without the professional Evangelical engagement in litigation. The first
major victory came in Widmar v. Vincent (1981), a case which involved a group of students
who wanted to borrow a room on campus for Bible study. Here the Supreme Court held that
public colleges could not exclude religious groups from facilities which were available to other
student organizations. Again we find an example of how the judiciary and the legislature often
work in tandem: a few years after the ruling, Congress passed the Equal Access Act (1984),
which forbade public high schools from banning student meetings on school grounds based on
the religious, political, or philosophical speech at the meeting – provided the activity was
voluntary, initiated by students, and not sponsored by the school or the government. This act
was the first significant legislation for which Evangelicals had worked in cooperation with both
religious and secular groups, including the liberal ACLU (den Dulk 2006:210; den Dulk and
Pickerill 2003:430-431). After Widmar, Evangelical cause lawyers have successfully coupled
the Free Speech Clause with religious expressions on several occasions. In lower federal courts
they have frequently litigated for equal access to school facilities, recognition of religious
school clubs, and removal of restrictions on students’ distribution of religious literature (Brown

67
2002:73,117). The constitutionality of the Equal Access Act was upheld by the Supreme Court
in Board of Education v. Mergens (1990), when it ruled in favor of a group of students who
wanted to establish a Bible club at their high school. In Lamb’s Chapel v. Center Moriches
Union Free School district (1993), the right to access public school facilities was expanded to
give religious community groups the same rights as non-religious community groups to use the
facilities after school. Then, in Rosenberger v. University of Virginia (1995), Evangelical
lawyers won a major victory as the Court ruled that a state university cannot deny funds to
religious student publications when it funds other student publications, since all forms of speech
have to be promoted equally. In addition to preserving religious activities in public schools,
these court decisions have strengthened the idea of ‘religion as speech’ (den Dulk and Pickerill
2003:431-433; Brown 2002:63-74). However, when ‘religion as speech’ later was evaluated in
a case involving student initiated prayers on a school’s public address system prior to football
games (Santa Fe v. Doe, 2000), the Supreme Court struck down the practice as unconstitutional
(Brown 2002:75).
While religious expressions became restricted in the field of education from the 1960s,
public prayer has endured and remained visible in the field of politics. In the 18th century,
days of fasting and prayer were common both in Great Britain and the English colonies in
North America. After the establishment of the American republic, presidents have regularly
announced such days (Callahan 2006:396-397; Epstein 1996: 2115-2116; Greninger 1979:4-
5; Fifiels 1977:865). Such arrangements can therefore be seen as part of the American
tradition. As President Lincoln did during the Civil War (Newman 2007:591), turning to God
has often been a resort in turbulent times. For instance, in response to a request from the
Federal Council of Churches, President Wilson declared October 4th, 1914 a national day of
prayer for peace in Europe (Bryan 1914). Similarly, President Roosevelt led the nation in
prayer when allied troops invaded Europe on June 6, 1944 (Cady 2008:194). When Evangelist
Billy Graham, invited by a bipartisan group of congressmen, conducted his service on the
Capitol steps in 1952 (see chapter 1), he urged Congress to call on President Truman to
proclaim a national day of prayer. The following day a resolution was introduced76, and since
1952 the President has been bound by law to announce a ‘National Day of Prayer’ every year
(Epstein 1996:2115-2118). In 1988, under President Reagan, the day was fixed to the first
Thursday in May (Gupta‐Carlson 2003).

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The resolution aimed at bringing Catholics, Protestants, and Jews together in prayer (Epstein 1996:2116).

68
 While leading founders, like Jefferson and Madison, carefully avoided any confusion of
church and state in their political decisions, they still attended the regular Sunday services that
were held in the old House of Representatives until 1857. These services were considered
acceptable, however, because they involved preachers from various Protestant denominations,
and from 1826 also Catholic priests (Library of Congress 2014). On March 21st, 2010 the first
Sunday service in 130 years was conducted in the old House chamber, attended by members of
Congress from both sides (Forbes 2010; CPCF 2010). A forerunner to this more visible joining
of prayer and politics can be found in the prayer breakfast groups arranged by Methodist
minister Abraham Vereide for government workers from the 1940s. In 1953, President Eisen-
hower was persuaded by Vereide, Graham, and congressmen to attend the gathering, and since
then every president has done so. The now annual National Prayer Breakfast has brought many
leading Evangelicals together with top politicians (Lindsay 2006:391; Martin 1996:40-41).
Although prayers in the political realm often have been nonsectarian, opponents have filed
lawsuits based on the idea of church/state separation, yet with little success77.
Another contested field involving the relationship between church and state is the public
display of religious symbols. With the 1960s’ school prayer and Bible reading cases, and the later
Lemon v. Kurtzman (1971), the Supreme Court developed a three-pronged test (‘the Lemon test’)
which a statute or practice must pass in order to not violate the Establishment Clause: (1) its
purpose must be secular; (2) it must not advance or inhibit religion; (3) it must not promote an
excessive government entanglement with religion (Kritzer and Richards 2003:829). However,
deciding the limits for public use of religious symbols is still a complicated matter, and lower
courts often reach opposite conclusions. In 1991, two Illinois cities were sued because their
municipal seals contained the Latin cross, which was perceived a sectarian symbol. Applying ‘the
Lemon test’, the district court found only one of the seals to violate the Establishment Clause. In
the other, the religious message of the cross had been ‘neutralized’ by other symbols and did
therefore not endorse Christianity. The appellate court, on the other hand, ruled that both seals
represented unconstitutional endorsements of a particular religious faith (Harvard Law Review
1991:591-593; Harris v. City of Zion 1991:§59). In Lynch v. Donnelly (1984) the Supreme Court
reversed the decision of another appellate court, and ruled with a 5-4 majority that a city in Rhode

77
In 2008 The Freedom From Religion Foundation challenged the National Day of Prayer. The district court
found the arrangement unconstitutional, but its decision was reversed (CBS 2011). In November 2013, the
Supreme Court heard another public prayer case, Town of Greece v. Galloway. The question here is whether the
appellate court erred when it ruled that a municipal legislature violated the Establishment Clause by allowing
volunteer private citizens to open town board meetings with a prayer. Although citizens from any religion may
participate, the prayers have been predominantly Christian (ABA 2014b). The Court’s decision is expected in
June 2014, and will have major implications for whether and how a government may endorse religion.

69
Island could sponsor a Christmas display which included a nativity scene along with Santa Claus
and Christmas trees, since the meaning of Christmas holiday symbols have become more secular.
In County of Allegheny v. ACLU (1989), however, the Supreme Court held that the County
violated the Establishment Clause by allowing a local Catholic group to display a nativity scene in
the courthouse. The display of a large Chanukah menorah by a Jewish group next to a Christmas
tree outside the City Hall, on the other hand, was constitutionally legitimate 78 (Seidman
1991:211-212). These examples illustrate the complexity of issues involving public religious
expressions, and show that what is regarded as legitimate to a large extent depends on definitions.
This problem will be further elaborated by the two religious symbol cases – Pleasant Grove and
Lautsi – presented below.

The ACLJ’s Involvement in Church/State Cases

The ACLJ has been eagerly engaged in church/state cases involving both schools and public
places. Most frequently it has participated as a case sponsor, although the activity as amicus curiae
has also been high, especially at the Supreme Court level (Hacker 2005:41-50; ACLJ 2012d). The
ACLJ played a leading role in the process that brought religious expressions back in public
schools after the 1960s’ ban on prayer and Bible reading. A champion of the freedom of speech
argument, Sekulow successfully argued the two equal access cases (Mergens and Lamb’s Chapel)
before the Supreme Court, and the ACLJ participated as amicus in Rosenberger (see above).
Sekulow also argued the less successful Santa Fe case before the Court, defending the constitutio-
nality of student led prayers at high school sporting events.
While school cases were important in the 1990s, and still are (see e.g. Heil 2013; 2012;
Weber 2012), other types of public religious expressions have received much attention the recent
decade. The ACLJ has filed several amicus briefs to the Supreme Court defending the phrase
“under God” in the Pledge of Allegiance, and the public display of religious symbols, such as the
Ten Commandments and Latin crosses (ACLJ 2012d; Clark 2011). The law firm has shown a
similar concern to protect the National Day of Prayer (Sekulow 2011c), religion in the military
(Clark 2013), holiday expressions (Sekulow 2008b), and the national motto, “In God We Trust”.
The motto first appeared on two-cent coins in 1864, after a congressional act from 1862 expressed
a desired to declare that the nation’s strength and safety was found in God. In 1956, Congress
passed a law which made it the national motto of the United States (US Dep. of the Treasury

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In County of Allegheny the Court based its decision on ‘the endorsement test’ from Lynch. This test evaluates
‘endorsement’ and ‘neutrality’ in light of the physical context of the symbol. In Lynch the nativity scene was
surrounded by other non-Christian Christmas symbols. This was not the case with the nativity scene in County of
Allegheny, and the court found the display to be an unconstitutional endorsement of Christianity (Seidman 1991:212).

70
2011). In recent years, atheist groups and secular humanists have filed lawsuits against the phrase
on national currency. The ACLJ has participated as amicus curiae in some of these cases, repre-
senting itself, the American Catholic Lawyers Organization, and members of Congress. A main
argument is that the motto does not violate the 1st Amendment, but rather “reflects the historical
fact that this nation was founded upon a belief in God” (Newdow v. Congress, ACLJ amicus brief
2013:4). This kind of argument is typically employed by the defenders of public religious
expressions, and it promotes the notion of a certain national identity. This is the core of the Evan-
gelical fight – the idea that the USA has always been and still is a Christian nation.

The ACLJ’s Arguments for Public Religious Expressions in the Informal Public Sphere
In chapter 4, I suggested that the ACLJ’s arguments against the ACA can only be properly
understood in light of the Evangelical cause as a whole, and that these arguments in turn contribute
to the shaping of this cause (see also attachment 3). The same goes for the law firm’s arguments
in support of public religious expressions. Now, a fight against abortion and the defense of public
religious expressions may seem to have little in common – except that they are causes fought by
the same group of people. However, the arguments used to present them are contributing to the
creation of the same picture. Recently, the ACLJ filed an amicus brief supporting a city’s practice
of opening town board meetings with a prayer (Town of Greece v. Galloway). The law firm’s
reference to this case as an “assault on public prayer at the Supreme Court” (Weber 2013c)
creates a similar picture of religion being under attack as we saw in its anti-ACA arguments.
Moreover, such arguments work to highlight the important mission of the ACLJ: as a Christian
law firm it plays a central role in defending religion, and perhaps even saving its position in
society. This is also reflected in the requests for prayer – a call for human and divine support – for
the lawyers as they do their work (Sekulow 2008a).
When defending and promoting public religious expressions in the informal public
sphere, the ACLJ puts much weight on the place of Christianity in American society through-
out history. The law firm frequently describes public religious expressions – such as the
Pledge of Allegiance, a statue of Jesus, or the Latin cross – not only as parts of, but also as
symbols of America’s history and heritage. Consequently, attacks on these symbols are
regarded as attacks on the nation’s history and the heritage. While the heritage referred to no
doubt is the Judeo-Christian, the ACLJ preferably speaks about ‘religion’ in general terms. In
this way it avoids being ‘sectarian’, something that could make its arguments rather useless
since ‘sectarianism’ has been one of the earliest tests to determine whether a public religious
expression is constitutional or not (see above). The ACLJ also places a major emphasis on

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rights, both individual (i.e. the citizens’ rights to religious liberty, freedom of expression,
equal access, etc.), and collective (i.e. the nation’s right to acknowledge God in its history and
culture). Both types of rights are used to defend and promote public religious expressions.
The ACLJ asserts that religious expressions – e.g. a voluntary citing of the Pledge of Allegi-
ance – do not violate the Establishment Clause, regardless of whether it is done by a student, a
government employee, or a private citizen. Hence there is no constitutional need to abandon
the practices, as the strict separationists would claim.
The ACLJ also approaches public religious expressions in a pragmatic way, describing
both verbal expressions (e.g. prayer) and physical expressions (e.g. the cross) as powerful
symbols of hope and comfort. We should here recall Turner’s characterization of symbols as
‘multivocal, manipulable, and ambiguous’. This ‘multivocality’ enables different groups and indi-
viduals to relate to the same symbol in various ways. Hence, Turner writes, “[o]therwise hostile
groups may form coalitions in political fields by emphasizing different [‘meanings’] of the same
[‘outward form’]” (1975:155). This is not only a description of what often takes place in debates
involving public religious expressions; it is also a point used strategically by the ACLJ in its
argumentation – as will be shown by the Pleasant Grove case. However, the Evangelical cause
does not prosper from stripping a symbol of its religious meanings. Doing this may perhaps bring
victory in a court, but in order to form a notion of a certain national identity, the symbols must
convey a certain message. To illustrate: a cross on a building is meaningless if it does not convey
the message that it is a Christian building. The same could be said about a (assertedly) Christian
nation. In my model, I show this by Geertz’ description of culture as “socially established
structures of meaning”, where the meaning is public and shared (1973:12). A shared under-
standing of the meaning is, in other words, necessary for the successful communication of a mes-
sage. This will be further illustrated by the Lautsi case.

Pleasant Grove v. Summum – the Public Display of a Ten Commandments Monument

From the mid-1950s, the organization Fraternal Order of Eagles (FOE)79 distributed thousands of
Ten Commandments monuments across the United States. The aim was to combat juvenile crime,
and the FOE hoped the display would inspire “the youth to live law-abiding and productive lives”
(Van Orden, FOE amicus brief 2005:4). Based on the Establishment Clause, several lawsuits have
since been filed against these and similar displays. In 1980, the Supreme Court for the first time

79
The FOE was established in 1898 under the name of “The Order of Good Things”. The order has worked to
establish Mother’s Day, social security programs, and the “Jobs after 40” program. Seven presidents (T. R.
Roosevelt, Harding, F. D. Roosevelt, Truman, Kennedy, Carter and Reagan) have had their membership in the
order, which now has more than 800.000 members internationally (FOE 2014).

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reviewed a Ten Commandment case, Stone v. Graham. Here the Court ruled that a Kentucky
statute violated the Establishment Clause when it required that a copy of the Ten Commandments
be displayed in all public classrooms. According to the Court, the display did not serve educational
functions, but promoted certain religious views. Twenty-five years later, the Court again delivered
an opinion on the public display of the Ten Commandments. With a 5-4 majority, the Court in
McCreary County v. ACLU (2005) upheld a lower court’s decision that the exhibition of the Ten
Commandments in the courthouses of two Kentucky counties was unconstitutional. However, in
Van Orden v. Perry, which was reviewed simultaneously, the Court concluded that a granite plate
with the Ten Commandments placed outside the Texas State Capitol was constitutional (Howe
2008:443-445,448). With a 5-4 majority, the Court held that the monument, which had been
donated to Texas by the FOE in 1961, did not endorse Christianity and Judaism. The granite plate
was surrounded by other memorials of historical people and events in Texas, and although the
Ten Commandments undeniably conveyed a religious message, the plate primarily had the secular
purpose of acknowledging the Ten Commandments role in America’s history and heritage. The
Court here referred to the widespread practice of such acknowledgements across the nation; even
the Supreme Court building itself contains several depictions of the Ten Commandments (Van
Orden, 2005:9). To justify that this ruling contradicted its ruling in Stone, the Court explained that
the plate was “a far more passive use of those texts than was the case in Stone, where the text
confronted elementary school students every day” (Van Orden, 2005:12, my italics). These
decisions throw an interesting light on the European Lautsi case (see below).
The ACLJ participated in both McCreary and Van Orden as amicus curiae (ACLJ
2012d). In 2009, Jay Sekulow got the chance to argue a Ten Commandments case before the
Supreme Court. In Pleasant Grove v. Summum the ACLJ represented Pleasant Grove, a Utah
city, which had been sued by a small religious group called Summum80 because it refused to put
up their monument, the Seven Aphorisms81, in a public park. Founded by Mormons in 1850,
Pleasant Grove had dedicated the Pioneer Park to the history of the people. The park contained
15 permanent displays, many of which had been donated by private groups or individuals, e.g.
the city’s first fire station, a 9/11 monument, and a Ten Commandments monument – the latter
donated to the city by the FOE in 1971. In 2003 and 2005, Summum requested permission to
erect a similar stone monument containing its Seven Aphorisms, or Principles, beside the FOE

80
Founded after an alleged alien encounter in 1975, Summum has its pyramid shaped headquarter in Salt Lake City. It
describes itself as an ancient philosophy, and practices rites of mummification and meditation (Summum 2014b).
81
Summum philosophy is based on the seven principles of psychokinesis, correspondence, vibration, opposition,
rhythm, cause and effect, and gender (Summum 2014c). On its web page the Summum displays a graphic image of
its Aphorism monument beside a stone monument with the Ten Commandments (Summum 2014d).

73
monument. The group believes that the Aphorisms (‘the higher law’) were given to Moses
before he received the Ten Commandments (‘the lower law’), but were destroyed because the
Israelites were not ready to receive them. Summum now believed the time had come to share
what it had found (Summum 2014a; Mears 2008). When Pleasant Grove denied the request, the
group filed a law suit, claiming that the city violated their 1st Amendment free speech rights.
The district court ruled in favor of Pleasant Grove, but the decision was reversed by the
appellate court, which agreed with Summum that the Ten Commandments monument represented
the FOE’s private speech, and that the case therefore concerned private speech in a public
forum that had been opened for the display of permanent monuments. The appellate court held
that Pleasant Grove – on free speech grounds – could not deny Summum to erect its monument,
and ordered the city to accept the display.
When the Supreme Court agreed to review the case in 2008, its importance increased
since the Court’s decision would have implications across the nation. The question to decide
was whether the Free Speech Clause gave private groups a right to place permanent monuments
in a city park where other donated monuments had been erected. If the Supreme Court upheld
the appellate court’s decision, federal, state and local governments would either have to accept
the erection of any monument wherever they had already put up a similar gift – even when these
contradicted each other – or to ban such displays altogether, something that would lead to the
forced removal of thousands of monuments nationwide.

The ACLJ’s Argumentation in Pleasant Grove82

The ALJC represented Pleasant Grove all the way to the Supreme Court. In its briefs to the
Supreme Court, the law firm seeks to demonstrate why the appellate court erred in its analysis.
The panel’s first and major mistake was to confuse government speech and private speech. It is, in
other words, yet another question of definitions, this time of a city’s action when it accepts one
monument, while rejecting another. According to the ACLJ, a privately donated monument does
not remain private speech when a government accepts it and chooses to display it. The govern-
ment expresses its opinion through the process of selection and the control that follows the owner-
ship. The government is free to do whatever it wishes with the object which it now owns, and if
the government chooses to display it, it does so in order to convey a message. The display is thus
an act of government speech. In response to Summum’s claim that a government must adopt or

82
The analysis of the ACLJ’s arguments in Pleasant Grove is based on the law firm’s Opening Brief (06/16/08)
and Reply Brief (09/15/08) to the Supreme Court. These are compared to the rationale behind the Supreme
Court’s decision explained in the Court’s Opinion (02/25/09).

74
embrace the original message – e.g. the inscribed text – in order to control the speech, the ACLJ
uses parallels to show why this is not the case. For instance, a sculptor may wish to express a
certain message in his work, while the owner may display it to convey a totally different idea. The
display consequently represents the new owner’s speech, which was also the case for Pleasant
Grove. While the FOE desired to erect the monument to inspire young people to live law-abiding
lives, Pleasant Grove had included it in the park as a reminder of the city’s Mormon pioneer heri-
tage and its role in shaping the city’s identity. The ‘history and heritage’ argument, so frequently
used in the informal public sphere to defend public religious expressions, is here adapted to the
local situation in question, disconnected from the fact that the FOE spread thousands of these
monuments across the nation in a time when juvenile crime seemed to be everywhere. In their
amicus brief in Van Orden (2005), the FOE too invoked the ‘history and heritage’ argument when
they explained that their intention had been “to acknowledge the ten commandments’ historical
impact on the development of Western legal tradition and, through reminding the public of this
historical fact, inspiring the youth to live law-abiding and productive lives” (Van Orden, FOE
amicus brief 2005:4). Nevertheless, in Pleasant Grove it is the history of the geographic locality
that counts, not the history of the monument itself.
In its briefs, the ACLJ reminds the Supreme Court that monuments have been a common
form of government speech for thousands of years. Through selecting and displaying certain
monuments, American governments at all levels have spoken to express a particular viewpoint.
The government’s freedom of speech, the ACLJ recalls, has already been acknowledged by the
Court, and this freedom is not reduced when the government lets a private party deliver the
message. The donation of a complete monument is hence not a problem. Rather, it is an advantage
since most governments cannot afford creating public art themselves. When a government
chooses to speak through a privately donated monument, this does not create a public forum for
private speech through similar monuments, as Summum claims. Public parks, like the Pioneer
Park, are traditional public forums for personal speech activities, like talking, carrying signs, and
handing out leaflets. Summum members are as free as anyone else to engage in such activities in
the park, and the city has therefore not violated their free speech rights. However, while these
activities are temporary, putting up a permanent monument represents a greater invasion on
government property. While any group is free to erect a monument on its own property, it cannot
demand that a city erects its monument on city property. The result of such a practice would be ‘a
practical nightmare’ – a situation which the ACLJ illustrates with some rather alarming examples:
a government that accepts a monument praising a war hero, must also accept a monument

75
ridiculing the same hero; or if it accepts a 9/11 monument, it also have to include an Al-Qaeda
monument praising the terrorists; or – perhaps most eloquently – since the federal government
accepted the Statue of Liberty as a gift from France in 1877, the principle laid down by the
appellate court implies that it now is obligated to accept a Statue of Tyranny as well. While this
pragmatic argument alone may seem to provide the Supreme Court a compelling reason to reverse
the appellate decision, the ACLJ’s main legal argument is that this whole issue is a matter of
government speech. The government’s free speech is only limited by the Establishment Clause,
but since Summum based its challenge solely on the Free Speech Clause, this does not need to be
addressed.
The Supreme Court agreed with practically all of the ACLJ’s arguments, and included
most of them in its Opinion, albeit in a slightly different form (e.g. the Statue of Tyranny
became the Statue of Autocracy). The Court held the action of Pleasant Grove to be a form of
government speech, and hence not subject to the Free Speech Clause. The appellate court’s
decision was therefore reversed (Pleasant Grove, 2005:18).

Lautsi v. Italy83 – Crucifixes in Italian Classrooms

In European eyes it may seem somewhat surprising that an Evangelical law firm engages so
eagerly and emotionally in a case involving crucifixes in Italian public schools. However, in light
of the decades-long tradition of cooperation between Evangelicals and Catholics in politics and
litigation in the USA, this is no real sensation. In line with Schaeffer’s idea of ‘cobelligerency’
(see chapter 1), such cooperation has been part of a conservative Christian strategy since the late
1970s. What took place in Europe in Lautsi v. Italy should therefore be seen as a reflection, or
perhaps better, as an extension of what has long taken place in North-America. The ACLJ’s
European affiliate, the ECLJ, entered the Lautsi case as amicus curiae when the case went from
the Chamber of the European Court of Human Rights (ECtHR)84 to its Grand Chamber in 2010.
While it is difficult to evaluate the total impact of the ECLJ’s involvement, much indicates that it
had great influence on the final outcome.
The Lautsi case began in 2002, when Mr. Lautsi questioned the presence of crucifixes in
the classrooms of the public school his two boys attended. The obligation to display crucifixes in
Italian state schools had its roots back in the mid-19th century, when Catholicism was recognized
as the only religion of the state. Gradually falling into disuse, the practice was revived during the

83
The analysis of the ECLJ ‘s arguments in Lautsi is based on its amicus brief to the Grand Chamber (06/01/10).
Other documents included here are the decisions of the Chamber (11/03/09) and Grand Chamber (03/18/11).
84
The ECtHR has two court levels: a lower Chamber, and a Grand Chamber whose decisions are final.

76
Fascist era when the government, describing the neglect as “an attack on the dominant religion of
the State”, announced that all schools should display a crucifix along with a portrait of the King,
“the two sacred symbols of faith and national consciousness” (the Ministry of Education’s circular
no.68, 1922, quoted in Lautsi 2009:§19). While the Lateran Pacts of 1929 confirmed Catholicism
as the nation’s official religion, the Italian Constitution of 1948 declared that the state and the
Catholic Church were independent and sovereign in their respective spheres, and that all religious
creeds were equal before the law. In 1984, a new agreement on the relationship between Church
and State declared that the Lateran Pacts’ statement on Catholicism as Italy’s state religion was no
longer in force. Then, in 2000, an Italian court ruled that the display of crucifixes in polling
stations violated the principle of secularism and state neutrality found in the Italian Constitution.
However, when the Lautsis tried their case a few years later, their application was dismissed on
grounds that the Fascist era regulations were still in force, and that the crucifix was an important
symbol if Italy’s history, culture, identity and values – the latter including liberty, equality, reli-
gious toleration, and the secular nature of the state. This decision was confirmed by the appellate
court, while the Constitutional Court declined to evaluate the issue since it involved regulations,
not laws (Lautsi, 2010:§11-23).
The ECtHR received the application from Ms. Lautsi in 2006. On behalf of herself and her
two sons, Ms. Lautsi claimed that the display of crucifixes in public schools violated their rights
laid down in the European Convention on Human Rights (ECHR). According to plaintiff, this
gave the Catholic Church a privileged position and interfered with her and her sons’ freedom of
thought, conscience and religion (Art.9), discriminated non-Catholics (Art.14), and suppressed her
right as a parent to raise her children in conformity with her own secularistic conviction (Art.2 of
Protocol No.1). The Italian government defended the practice in line with the decisions of its
domestic courts, claiming that the cross had other connotations than the religious. Indeed, it was a
symbol of the humanist and democratic values that everyone appreciates, including – interestingly
enough – freedom of choice, the primacy of the individual over the group, and the separation of
politics from religion. According to the government, the crucifix display was therefore perfectly
in harmony with the principle of secularism found in the Italian Constitution, and it represented no
threat to religious minorities. Since the symbol was closely linked to Italian culture and history,
the government argued, the question should fall within the national margin of appreciation. The
Chamber, however, dismissed the government’s ‘multivocal’ argument, finding the crucifix to be
a religious symbol, likely to be associated with Catholicism. As part of the school environment, it
would have an impact on young pupils, and it was not in line with the state’s “duty to uphold

77
confessional neutrality” in compulsory public education. Similar to the US Supreme Court in
Stone (see above), the Chamber therefore concluded that the Lautsis’ rights had been violated
(Lautsi, 2009:§50-58).
The Chamber’s decision caused a storm of reactions from both political and religious
actors as it was perceived to threaten not only the dominant religion of Italy, but also the
religious identity of Europe itself. While Catholic-Evangelical cooperation had long been
common in the USA, the Orthodox tradition now joined the alliance. Most prominent was the
Russian Orthodox Church, which itself had assumed a dominant position in society after the fall
of Communism (Annicchino 2011:216-217). A number of non-governmental organizations, as
well as ten Central and Eastern European states85, participated as amici curiae when the case
reached the Grand Chamber of the ECtHR in 2010. Their interventions show a clear pattern:
while the Christian organizations and the intervening states – themselves being predominantly
Catholic or Orthodox – argued in favor of Italy, the humanist and human rights monitor groups
supported the decision of the Chamber (Lautsi, 2011:§47-55). Two months before the oral
hearing, the ECLJ arranged a seminar called Religious Symbols in the Public Space together
with the Permanent Representation of Italy to the Council of Europe and the Italian National
Research Council. Among the speakers were ECLJ director Grégor Puppinck and Professor
Joseph Weiler, the latter representing eight intervening states 86 at the hearing. According to
Weiler, Italy had already “raised the white flag of surrender” by reducing the crucifix to a
cultural symbol (Weiler 2010:36). But the seminary was a fruitful provider of legal arguments.
Hence, when arguing before the Grand Chamber, the Italian government placed far more empha-
sis on national history, culture and tradition, and the place of the crucifix, as well as Catholicism,
within them. A seemingly new argument – somewhat contradictory to its ‘humanist/democratic
value’ argument presented to the Chamber (see above) – was that the rights of the individual (or
family culture) should not suppress the rights of the community (the national tradition/ culture).
While difficult to evaluate, this may have been a contribution from the ECLJ (see below). In
addition, Italy argued that the Chamber had confused ‘neutrality’ and ‘secularism’, thus
favoring atheism and rationalist agnosticism over religion. The Grand Chamber accepted many
of the arguments of Italy and its amici. It reversed the Chamber’s decision, and left the question
of crucifix display to the national margin of appreciation.

85
Armenia, Bulgaria, Cyprus, Russia, Greece, Lithuania, Malta, Monaco, Romania, and San Marino.
86
Armenia, Bulgaria, Cyprus, Russia, Greece, Lithuania, Malta, and San Marino.

78
The L’Osservatore Romano Article and the ECLJ’s Argumentation in Lautsi
The ECLJ’s arguments in Lautsi is perhaps best understood in light of an article written by
ECLJ director Puppinck for the Vatican newspaper L’Osservatore Romano, published about
one month after the Grand Chamber hearing. With the eloquent title “Lautsi v. Italy. An
Alliance against Secularism”, Puppinck tries to show what the battle is all about: “the future of
Europe’s religious and cultural identity”. On one side of this identity struggle, he explains, are
those who desire a Europe that is “faithful to its true identity and historical roots”, i.e. its
Christian identity, history and heritage. On the other side are those who champion a completely
secularized Europe, which according to Puppinck is nothing else but a “de-Christianization of
European culture and society”. The Lautsi case is emblematic of this battle because it involves a
symbol of Christ, and thus challenges “the visible presence of Christ” in the whole of Europe
(my italics). The problem with the Chamber’s decision, Puppinck continues, is that it turns
‘religious freedom’ into a tool to move religion away “from the public sphere to the private life
of people as individuals (i.e. religious ‘privatization’)”. But the court should not let individual
rights infringe the rights of the society as a whole. All states have an identity, he argues, and this
collective identity also has a religious dimension, which is formed and displayed by social
habits (e.g. public holidays and names) and visible symbols (e.g. crucifixes and public monu-
ments). A supranational body like the ECtHR has no right to change a nation’s religious identity.
Echoing the fear that mobilized American Evangelicals into politics in the 1960s, Puppinck
states: “If religion is removed from society, faith will be removed from the hearts of future
generations” (Puppinck 2010). In other words, there is a fear that a removal of public religious
expressions will cause a break in the transfer of the religious memory, to use Davie’s term
(2000), which in turn will lead to religious decline in society.
The ECLJ filed is amicus brief in Lautsi jointly with 79 Members of the European
Parliament. In its brief, the ECLJ treats the crucifix as a religious symbol, but argues that its
privileged position in the Italian public sphere is justified by the fact that Catholicism is the
nation’s majority religion. The brief concentrates on two main arguments, one to convince the
judges that the crucifix display has done no harm to anyone, the other to convince them that the
Chamber’s decision to ban such displays is harmful and unjust. As for the first, the ECLJ
emphasize that the crucifix is a passive symbol. Its presence in public classrooms has not forced
anyone to act against their conviction or prevented anyone from acting in accordance with their
conviction. Further, the display does not qualify as indoctrination or misplaced proselytizing.
Hence, it has violated neither the children’s freedom of conscience nor the parents’ rights to have

79
them brought up in accordance with their conviction. The other main argument targets the
Chamber’s assertion that the state has a duty of confessional neutrality in compulsory public
education. By excluding religious symbols from public schools, the Chamber has created a new
obligation of total secularization of the educational environment, the ECLJ argues; the Chamber
has no legal foundation for this action. Instead, it represents a political approach – an echo from
Puppinck’s article – and it was based on this erroneous doctrine that the Chamber ended up with
its erroneous conclusion. Even though church and state are two distinct spheres, the ECLJ
continues, this does not imply that they must be separated. Rather, the state must be neutral and
impartial in its relations with religious organizations and believers, not in its own identity – an
argument that may resemble the idea of governmental speech from Pleasant Grove. Hence, if the
state desires to privilege the majority religion, it may do so, the ECLJ argues, especially if it
furthers the common good. The brief closes with a reference to how the Council of Europe itself –
not very unlike Italy’s cultural argument to the Chamber – claims to be founded on the spiritual
and moral values that are the common heritage of the European people, and from which the basic
principles of all democracies have developed. Thus, rather than making a direct statement on the
Christian identity of Europe itself, the law firm uses the statements and acts of other European
political institutions to perform its message.

One Cause, Many Arguments

The various cases that have been presented in this chapter show how difficult it is for the courts
to decide issues that involve public religious expressions. Different courts may draw opposite
conclusions in the same case or in similar cases. This inconsistency can in part be explained by
the ‘multivocality’ of symbols. Different judges may ‘see’ different meanings when observing
the same symbol, and the arguments presented before them are aimed at guiding their under-
standing in one direction or the other. Here Pleasant Grove makes a good example. While the
Ten Commandments no doubt communicate a religious message, the ACLJ depicted the monu-
ment in Pioneer Park as a symbol of the city’s history and identity. The law firm’s commitment
to fight privatization of religion leaves little doubt that it sought to protect the monument
precisely because it was a religious symbol – it is unlikely that a similar concern would be
shown if it was another symbol of the city’s heritage, e.g. its first fire station, that was ‘under
attack’. However, the ACLJ’s argument here should not be seen as a contrast to the ECLJ’s
clear stand that the crucifix really is a religious symbol (thus wiping away the main argument of
the Italian government before the Chamber). In Pleasant Grove, the ‘history and heritage’
argument served to build up under another argument which turned out to be decisive for the

80
Supreme Court’s decision, namely governmental speech. While the Establishment Clause
would make it difficult for a court to accept religious speech from a government, a message
about history and heritage represents a legitimate justification to all citizens. In Lautsi the
situation was different. Here the idea of a governmental speech was disadvantageous – as can
be illustrated by the Chamber’s understanding of the situation when it wrote that “[t]he presence
of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will
feel that they have been brought up in a school environment marked by a particular religion”
(Lautsi, 2009:§57). To counteract the claim that the Italian government was sending out a
religious message, the ECLJ and its cobelligerents emphasized that the crucifix was a passive
symbol – not very unlike the Ten Commandments granite plate outside the Texas State Capitol
in Van Orden (2005), which ironically enough was tolerated because it was ‘far more passive’
than the Ten Commandments display in public classrooms in Kentucky (Stone, 1980). With the
crucifix presented as a passive symbol – a notion which was “of importance” for the Grand
Chamber’s ruling (Lautsi, 2011:§72) – there was no need to ‘camouflage’ its religious meaning.
The religious meaning of the crucifix could therefore be used to promote the underlying cause –
the idea of a certain European identity.
Pleasant Grove and Lautsi give a good illustration of what may at a first glance seem
to be an inconsistency in argumentation. However, these seemingly conflicting arguments make
perfect sense in light of the fact that they all serve the same cause. This highlights an important
aspect of the law firm’s role as a ‘mediator’ between the Evangelical movement and the
formal public sphere: Any cause – be it the pro-life fight, the defense of a religious expres-
sion, or immigration politics – can be translated in various ways. As professionals, the
Evangelical lawyers are able to adapt their arguments to the particular situation – as has been
demonstrated by the cases presented in this chapter. This is of course not unique for the Evan-
gelical law firms. Any group that uses litigation to influence society must adapt its arguments
in order to succeed in court (see e.g. Eskridge 2002; Epstein and Kobylka 1992). To be
properly understood, then, the arguments of the Evangelical law firms must be viewed in light
of a greater framework: the Evangelical cause as a whole. This will be the focus of the next
chapter.

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6 Religious Freedom and a National Identity
My goal with Regent is to see it... not rival Harvard and Yale, but to rival Oxford and Sorbonne of the
Middle Ages. It's a school that can impact the whole of society.

Pat Robertson (Regent YouTube 2009b:min.02:19-02:30)

Evangelical law firms in general place much weight on freedom, liberty and rights, as can be illu-
strated by firm names like Center for Law and Religious Freedom (1975), Alliance Defending
Freedom (1993), and Liberty Institute (1997). Explaining its mission, the ACLJ informs that it is
“dedicated to the concept that freedom and liberty are universal, God-given and inalienable rights
that must be protected” (ACLJ 2012c) – a description resembling the famous words of the
Declaration of Independence (see below). However, this focus on rights is by no means unique to
the Evangelical law firms. Other groups invoke their rights in a similar way – as we saw with the
civil rights movement in chapter 2, or the women’s rights movement in chapter 4. Opponents of
gun control invoke their 2nd Amendment right to bear arms; proponents of stricter criminal laws
point to the rights of the victims; opponents of unionism champion the right to work, and so on
(Southworth 2008:163). The frequent Evangelical references to freedom, liberty and rights cannot
be seen isolated from the larger context. On the one hand, the use of such language of rights could
be considered part of a modern trend with deep roots in American history and culture. According
to law professor Scott Gerber, “the essential political premise of the American Founding is that
government exists to secure natural rights” (1993:230). The presumed existence of such rights is
reflected in the Declaration of Independence’s claim “that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, [and] that among these are Life, Liberty
and the pursuit of Happiness”. If a government fails to protect these rights “it is the Right of the
People to alter or to abolish it, and to institute a new Government” (1776). After World War II,
international bodies have recognized the existence of universal rights, e.g. as expressed in the
Universal Declaration of Human Rights (1949) and the European Convention of Human Rights
(1953). This global focus on rights makes it difficult to promote or protect any interest without
using a language of rights. On the other hand, the Evangelical use of such language can also be
seen in relation to the movement’s turn to litigation (see chapter 2). Not only did Evangelicals feel
that liberals threatened their values and former privileges in the society. The strategy of the liberal
groups was a lesson in itself – it worked.
With both conservative and liberal groups invoking the same rights, it is a painstaking task
to determine precisely what these rights mean in practical life, not least when religion is involved.
The question raised in the Lautsi case is illustrative: Did the display of crucifixes in public class-

82
rooms violate the human rights of the Lautsis? According to the Chamber, it did; according to the
Grand Chamber, it did not (see chapter 5). While it is beyond the scope of this inquiry to discuss
what a human right is, or how the laws should be interpreted, this chapter sets out to examine
what the ACLJ means when it talks about freedom, liberty and (human) rights. The aim of the
chapter is to achieve a better understanding of the law firm’s translation of arguments, as well as
to explore the actual and potential consequences of a religious group’s strategic use of litigation
compared to other social or political movements. The chapter begins with a discussion of the
rationale of translation, focusing on the role of professionalism, the courts’ need for secular
arguments, and the different demand for translation in today’s society compared with the time of
the founders. To create a framework for my discussion of consequences, I use three texts touching
upon religious freedom, its safeguards and its threats. Because of the centrality of the American
Founding in the argumentation of the Evangelical Movement and its law firms, I will first
summarize some thoughts presented by James Madison – the ‘Father of the Constitution’ and the
author of the Bill of Rights – in an article from 1788. I will then relate this to two discourses
delivered by Presbyterian pastor Charles Beecher in 1846, as these touch upon what may be
considered a foreshadowing of the development that has been described so far in my inquiry.
Although the messages of Madison and Beecher belong to a certain historical context, I find their
reasoning highly relevant for my discussion. The third text is a joint Evangelical-Catholic
document from 1994, Evangelicals and Catholics Together: The Christian Mission in the Third
Millennium. This text is used to illustrate what I have called ‘the Evangelical cause as a whole’,
that is, the overall cause of the Evangelical movement87, and the larger system of meanings to
which the ACLJ’s arguments relate. The law firm’s goals and arguments are based upon a certain
understanding of the American constitutional order, and I will show how this understanding is
used as a means to form a public opinion on a certain national identity.

The Rationale for Translation

The provisions of the US Constitution aimed at securing an independent judicial branch. While
presidents and congressmen have to relate and respond to the will of the people, the federal judges
are responsible only to the Constitution (see chapter 2). Addressing the court in a language of law
is thence both natural and necessary. As Epstein and Kobylka writes,

the path of the court is charted by conversations between lawyers (judges and advocates) conducted in a
language and using a terminology fashioned and conveyed through a central shared experience (law
school and participation in the legal profession) (Epstein and Kobylka 1992:311).

87
I do not say that every person self-identified or classified by researchers as ‘Evangelicals’ necessarily supports
this cause. What I describe is the cause, or aim of the politically active part of the Evangelical movement.

83
The ability of Evangelical law firms to access the formal public sphere of courts lies precisely in
their being professional law firms. In his book on public religion in the modern world, Casanova
describes the differentiation of secular spheres from religious institutions and norms as one of the
main structural characteristics of the modern world. This process has resulted in autonomous
systems of state, economy, science, education, law, etc. Religion too has become one such
independent system, coexisting with others (Casanova 1994:212). Consequently, the Evangelical
movement – as a religious movement – has in itself no authority to influence the courts. The
Evangelical law firms, on the other hand, may access them either physically (at oral hearings) or
through their briefs. In both instances, the key to influence is found in their argumentation. The
professional lawyers know the language, the laws, and the ‘rules of the game’. By making the
correct moves, they may impact on the outcome of a case – as has been demonstrated by some of
the cases presented in this study.
In previous chapters, I have described the role of Evangelical law firms – exemplified by
the ACLJ – as a ‘mediator’ between the Evangelical movement and the governmental institutions,
and a ‘gateway’ through which the movement’s religious and moral causes may enter the formal
public sphere. This translation of causes into neutral or secular arguments functions not only to
present the cases in a language that a (per definition) secular court can understand. More
important, it provides the court with legitimate justifications for its ruling – should it be in favor of
the Evangelical cause. As mentioned above, it is a difficult task for courts to decide precisely what
a certain right means in practical life. The way that a court perceives a specific issue, as well as
the court’s ideological composition, will influence its decision. After all, judges are only humans,
and they can be influenced by arguments both in and outside the courtroom (see e.g. Baum 1995:
151-153). But even if they sympathize with the Evangelical cause, they nevertheless need neutral
reasons to justify their decision. This can be illustrated by the Lautsi case. In a separate concurring
opinion, Grand Chamber judge Bonello expresses a passionate and strong disagreement with the
Chamber’s ban on the crucifix display, and his arguments by and large follow the key points of
Puppinck’s L’Osservatore Romano article. Judge Bonello, himself a Maltese, places much weight
on the crucifix as passive, but important religious, historical and cultural symbol. He criticizes the
Chamber for denying “European heritage value to an emblem recognized over the centuries by
millions of Europeans as a timeless symbol of redemption through universal love” (Bonello
2011:§4.2) – a description approaching the border of theology. His opinion, though, is dominated
by the ‘history and heritage’ argument. Since Christian institutions for centuries were responsible
for providing education, the crucifix is a natural part of the school environment (2011:§1.3), “a

84
voiceless testimonial of a historical symbol” and “part of the European heritage” (2011:§3.3).
Removing it, as well as attempting to separate state and church, is “none of this Court’s business”
(2011:§2.4). Rather, it is “aggressive espousal of agnosticism or of secularism – and consequently
anything but neutral” (2011:§2.10). Bonello thus seems to support the idea that Europe has a
specific Christian identity. Like the Evangelical lawyers, he seems to fear that the removal of
visible religious symbols may disrupt the transfer of the religious memory:

A court of human rights cannot allow itself to suffer from historical Alzheimer’s. It has no right to
disregard the cultural continuum of a nation’s flow through time … A European court should not be
called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob
the Italians of part of their cultural personality (Bonello 2011:1.1-1.2).

Judges, then, may indeed have personal opinions. But for a court to justify its decisions in a
pluralistic society, the reasons must be neutral. Providing such reasons is perhaps the most
important function of the Evangelical law firms.
One final remark should be made regarding the rationale for translation, this time in a
historical perspective. James Madison, Thomas Jefferson and other founders of the American
republic showed great concern for the protection of an individual’s conscience and religion of
choice, something which is reflected in their writings. Madison, as we saw in chapter 5, feared
that state support for ‘teachers of the Christian religion’ would eventually lead to religious
persecution, as had been the case in Europe for centuries. The Virginia Act for Establishing
Religious Freedom, drafted by Jefferson in 1779, enacted that no one should in any way be
compelled to support a religion or be prevented from following his/her own conviction. However,
the justification of these and other political decisions – such as the Declaration of Independence –
were often made in religious terms. Madison referred to “the duty that we owe to our Creator” and
“the Supreme Lawgiver of the Universe” (1785:§1,15), and Jefferson stated that “Almighty God
hath created the mind free”, and that any coercion would lead to “hypocrisy and meanness”, and
be a “departure from the plan of the Holy Author of our religion” (1786). Calling to mind the
dominant position of Protestant Christianity in the 18th and early 19th century American society,
such religious justifications88 would still be accessible to most citizens. In chapter 5, we saw that
the question of ‘sectarianism’ was used as one of the earliest tests to evaluate the constitutionality
of religious expressions. Not always easy to determine – as can be illustrated by the various court
rulings on the reading of the King James Bible in public schools – this test nevertheless worked as
a guideline, for instance when teaching of Christian ethics was incorporated in public school
curricula (Maniloff 1994:221), or when leading founders, like Madison and Jefferson, attended

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The religious terms used in the documents conform with both deism and theistic Christianity.

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the Sunday services held by various Protestant (and Catholic) preachers in the old House of
Representatives (Library of Congress 2014). In the 19th century, the religious composition of the
United States changed as Catholic immigration increased sharply from the 1820s (Maniloff 1994:
221). Towards the end of the century, higher criticism and Darwinism offered alternative world-
views, challenging many Protestant denominations both from within and from outside (see chapter
1). In 1965, old immigration restrictions were removed, and immigrants from the whole world
brought with them new religions and worldviews. These changes in citizen composition brought a
different need for justification of political decisions. While any group may contribute to the public
debate, translation of religious reasons is necessary for governmental institution to include them in
their decisions. A law or a court ruling must be presented and justified in a language that is
equally accessible to all members of the current society. Hence, when the ACLJ and other Evange-
lical law firms translate the causes of the Evangelical movement into a neutral (secular) language,
they respond to a need which was not present at the time of the founders.

Plurality as a Safeguard of Freedoms and Rights

Although contemporary voices called for the acknowledgement of the ‘only true God’ in the
American constitution, the founders intentionally omitted any such reference to the divine (see
chapter 5). This choice should stand as a backdrop as I now turn to examine the consequences of
the strategic use of litigation by a religious group to promote its goals and protect its interests. To
create a frame for my discussion, I will first present James Madison’s notion of plurality as a
safeguard of freedoms and rights, and Charles Beecher’s discourses on creeds as a ‘test’.
In 1787-88, supporters of the federal Constitution published a series of articles and essays,
known as the Federalist Papers, to promote its ratification. In one of these articles, James
Madison sets out to explain the principles and structure of the new federal government; how the
separation of powers and a system of ‘checks and balances’ will prevent usurpation. While it is
necessary to guard a society against oppression by its rulers, Madison also points to the
importance of protecting one part of the society against the injustice of another, the most
vulnerable being the minority: “If a majority be united by a common interest, the rights of the
minority will be insecure” (1788b:323). According to Madison, there are only two ways to
prevent such ‘evil’. One method is to adopt a government that is independent from society, like a
hereditary or self-appointed authority, but this leaves no more than a “precarious security” to any
part of the society. The other method, which Madison finds exemplified in the United States, is
for the society to include “so many separate descriptions of citizens as will render an unjust
combination of a majority of the whole very improbable, if not impracticable” (1788b:324). The

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existence of many parts, interests and classes of citizens makes a majority threat little likely to
harm the rights of an individual or a minority, Madison claims. He then points to two sets of rights
that are secured this way in the American republic: civil rights, which are protected by a “multipli-
city of interests”, and religious rights, which are secured by the existence of a “multiplicity of
sects” (1788b:324). In other words, the existence of multiple denominations and interests is
thought to work as a safeguard against religious suppression and injustice. Plurality, from this
perspective, is desirable for the health of the nation, and, not least, for the freedoms and rights
of the individual. If a stronger faction of society is able to unite and oppress the weaker,
Madison continues, the government has failed to fulfill its purpose, which is to secure justice for
all. However, since the American republic consists of so many interests, parties and sects, he
thinks it is unlikely that such a coalition will take place “on any other principle than those of
justice and the general good” (1788b:325).
In 1846, about half a century after Madison published his article, Presbyterian pastor Charles
Beecher delivered two discourses at the Second Presbyterian Church in Fort Wayne, Indiana. This
took place six months before British and American leaders of various Protestant denominations
gathered in London to establish a global Evangelical Alliance89. In the discourses, later published
as The Bible, a Sufficient Creed, Beecher expresses concern about this attempt to unite, and about
the tendency of Protestant churches to form creeds and use these as ‘tests’ for church membership
and ministry qualification. Although Beecher does not refer to Madison, he seems to share his
view that plurality in thinking is both natural and healthy. A unity created through creeds, on the
other hand, is artificial and dangerous. With illustrative examples Beecher tries to show why it is
impossible to create an absolute unity of belief, even on so-called ‘fundamental truths’:

You might as well attempt to compel seven men, with seven glasses, each with a particular hue of the
rainbow, to see all things of the same color, on pain of excommunication, as to compel all minds, of ten
thousand diverse mental optics, to behold all things of one catholic, leading hue (Beecher 1846:9-10).

Beecher describes the idea of “a Church, with an absolute union of opinion” as a “walking
nightmare”, and points to the dangers of “testing Church-fellowship by opinion” (1846:10). To
Beecher, this is not just a theoretical danger, but a historical fact, testified by centuries of religious
intolerance and persecution in Europe. The root of this persecution, he claims, was found in the
establishment of Christian creeds from the 4th century, based on the idea that “[t]ruth is one –
therefore true believers cannot differ”. But, Beecher objects, they do differ. The creeds were
made to keep out deviating, or heretic views, which always represent the opinions of the minority.

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This project partly failed, however, due to disagreement over slavery (see chapter 1).

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Through their focus on creeds, he argues, contemporary Protestants were repeating history in
order to keep their denominations “pure” (1846:32-33).
Beecher also criticizes the education of Protestant ministers for furthering a narrow
mind and a fear of independent thinking. Most students go directly from the family to college,
and then to the theological seminary, without learning to know the world outside. The only
society they know, Beecher asserts, is the religious society, and the norms of this society
demand that they in order to be licensed as preachers – something on which their whole living
depends – must subscribe to the creed of that denomination. Comparing such creeds with
handcuffs, Beecher claims that the “liberty of opinion” in the theological seminaries is “a mere
form” as the student only gets to choose what kind of denominational handcuffs to wear.
“During the whole course of seven years’ study, the Protestant candidate for the ministry sees
before him an authorized statement, spiked down and stereotyped, of what he must find in the
Bible, or be martyred” (1846:41). This is not freedom, he concludes.
To be sure, Beecher is not against religion or religious education. His main tenet is
that the Bible in itself is a sufficient creed for guiding the faith and life of all Christians, and
that a substitution with any other creed represents a step towards apostasy. He warns that
creeds – the presentation of one understanding of the Bible as the system of doctrines contained in
it, required to be accepted by all – undermine the Bible, and when used as a ‘test’ they may
eventually lead to religious intolerance and persecution, as in Medieval Europe (Beecher
1846:4,23,28-33). “Was not this the way things went with Rome? Are we not living her life
over again? And what do we see just ahead? Another General Council! A World’s Convention!
Evangelical Alliance and Universal Creed!” (Beecher 1846:44). In other words, what Beecher
fears is that the drive towards unity among his contemporary Protestants will to wipe out the
plurality which Madison described as a ‘security’ for civil and religious rights.
From Madison’s praise of pluralism in the late 18th century, and Beecher’s concern
about its decrease in the 1840s, we may take one step further to Habermas’ normative descrip-
tion of the liberal state. According to Habermas, it is a duty of the liberal state to protect all
religious beliefs and ways of life. Accordingly, the state cannot expect its religious citizens to
justify their political statements independent of their convictions and worldviews (2005:14).
However, if religious arguments are allowed into the formal public sphere, governmental
authority may become an agent for the religious majority.

[M]ajority rule turns into repression if the majority, in the course of democratic opinion and will
formation, refuses to offer those publicly accessible justifications which the losing minority, be it secular
or of a different faith, must be able to follow and valuate by its own standards (Habermas 2005:15).

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While Madison found oppression by a majority unlikely due to the ‘multiplicity’ of interests
and denominations in the American society, Beecher pointed to the increasing cooperation and
desire for unity among various Protestant denominations in the mid-19th century, and warned
that the attempts to create an ‘absolute unity of belief’ could result in repression of deviating
beliefs – as had been the case in the early history of the Christian church:

For the delegates, little by little, transformed themselves into legislators, and avowed that Christ had
given them power to make laws of faith and practice for the people. Things went on gradually until
A.D. 325 when the first general council was called and the first general creed was made (…) Three
hundred and eighteen Bishops fully settled the doctrines taught in the Bible, banished Arius to Syria,
and compelled his followers to subscribe (Beecher 1846:31).

Beecher’s discourses throw a curious light on the ACLJ’s goal of protecting religious and moral
interests by national laws; on the desire of Regent University to educate Christian leaders, not just for
denominational affairs, but to “change the world”; and on former Attorney General John Ashcroft’s
statement that “God has not given us the spirit of fear, but of power – authority…” (see chapter 3).
As behaviors, words, and symbols can only be understood in their own context, these and similar
statements must be seen in light of their context. I will now describe this context before I return to
the thoughts of Madison and Beecher in my discussion of consequences.

Contending Together for a Nation under God

In previous chapters, I have argued that the ACLJ’s arguments must be viewed in light of the
Evangelical cause as a whole in order to be properly understood. This, I would say, goes for the
arguments presented in both the informal public sphere and the formal public sphere. In my
model, I showed that the arguments for a certain cause may be similar in both spheres (see
attachment 2). This means that they are both ‘translated arguments’, since translation is a
requirement for entry into the formal public sphere. I also showed that the arguments may differ
between the two spheres, and pointed to the law firms’ need for religious arguments in the
informal public sphere in order to target a certain audience, as well as to contribute to the
shaping of the cause in question (see attachment 3). I now turn to the larger contextual
framework of Evangelical causes in an attempt to create a better understanding of what the
ACLJ lawyers mean when they speak about for instance freedom, liberty, and (human) rights90.
I refer to this contextual framework as ‘the Evangelical cause as a whole’ to emphasize that this
could be seen as the overall cause, or main objective of the Evangelical movement. The argu-
ments presented by the ACLJ both arise from and contribute to the construction of this frame-

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My aim is not to give a complete picture, but rather to shed some light upon the phenomenon of Evangelical
law firms and their argumentations. All quotes in my text are taken from the document in question.

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work of meanings. To illustrate and explain the Evangelical cause as a whole, I will introduce a
joint Evangelical-Catholic document from 1994, Evangelicals and Catholics Together: The
Christian Mission in the Third Millennium. This document was the result of two years of
informal conversations between leading American Evangelicals and Catholics. In addition to
the 15 participants in these meetings, the document was signed in endorsement by another 24
prominent leaders and scholars. The document is particularly interesting for my inquiry for two
reasons. First, it illustrates the strategy of cobelligerency, which is a central part of the
Evangelical approach. Second, it was endorsed by two leaders who also have received attention
in my study: Pat Robertson, as leader of Regent University, and Keith Fournier, in his role as
Executive Director of the ACLJ.
Evangelicals and Catholics Together is not an official statement on behalf of the respective
communities, but expresses the desire of prominent figures for greater unity and cooperation. The
document focuses on the Christian faith and mission, and emphasizes the need for a visible unity.
Acknowledging that there are some major theological differences between the communities, the
document includes an overview of doctrines which they affirm together – somewhat similar to a
creed. At the same time, the document condemns the practice of ‘stealing sheep’ from one another’s
fold; Catholics and Evangelicals should instead cooperate in their mission and concentrate on the
non-Christian world. Most interesting, however, is the section called “We Contend Together”. This
section describes the responsibilities of the “one church of Christ”, and is introduced by an
announcement that the communities are “bound together in contending against all that opposes
Christ and his cause”. The document thus exemplifies Schaeffer’s strategy of religious cobellige-
rency – cooperation between parties that do not agree on “all sorts of vital issues”, but are “on the
same side in a fight for some specific issue of public justice” (quoted in Strange 2005). Before I
present the ‘issues of public justice’ that are outlined in the document, I will dwell a little on the
motivations for this common fight. In addition to evangelization and the nurturing of believers, the
Christian responsibility is said to encompass the entire society: “Christians individually and the
church corporately also have a responsibility for the right ordering of civil society.” To recapitulate,
it was a similar call to fulfill one’s public responsibilities that mobilized the Evangelical lawyers in
the 1980s (see chapter 1). While the document denies that Christians have power to build the
Kingdom of God on earth, it nevertheless shows that the goal is to turn the societal development in a
certain direction, guided by a certain set of values and principles: “Together we contend for the truth
that politics, law, and culture must be secured by moral truth.” It is in this ‘moral truth’ we find the
clue to understand what the ACLJ mean by freedom, liberty, and rights.

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 The social agenda of the document is legitimized by references to the Founding Fathers
and the constitutional order91. In the document, the US constitutional order is defined as “most
essentially a moral experiment”. Assertedly in line with the founders, the document claims
that “only a virtuous people can be free and just, and that virtue is secured by religion”. In light of
the document’s focus on Christian unity and the cause and mission of the ‘one church of Christ’, it
is clear that ‘religion’ here implies Christianity, or more precisely, the version of it that is outlined
in the document. While the American society has drifted away from this moral experiment, the
signers of the document state that they will fight together to restore it and put religion back to the
place it belongs. To elaborate this, they explain that they “contend together for religious freedom”,
which is “the source and shield of all human freedoms”, as well as “a product of religious faith”.
What is here meant by ‘religious freedom’ is the visibility of religion in society, i.e. the inclusion
of religion in the public sphere:

We strongly affirm the separation of church and state, and just as strongly protest the distortion of that
principle to mean the separation of religion from public life. We are deeply concerned by the courts’
narrowing of the protections provided by the “free exercise” provision of the First Amendment and by
an obsession with “no establishment” that stifles the necessary role of religion in American life.

The document describes religion as a social necessity and characterizes arguments against public
religious expressions as a break with the constitutional order and an “assault upon the most
elementary principles of democratic governance”. The document then goes on to present the
various issues which are considered part of the Christians’ public responsibility: to ban abortion,
euthanasia, and population control; to protect parental rights and the traditional family; to combat
pornography, and violence and obscenity in the entertainment industry; and to support a free
economy. Among the means to secure these various interests are mentioned laws and social
policies, as well as boycotts and consumer actions. Published a few years after Sekulow had won
two important school cases at the Supreme Court (Mergens 1990, and Lamb’s Chapel 1993), the
document ascribes an important role to public schools in transmitting “to coming generations our
cultural heritage, which is inseparable from the formative influence of religion, especially Judaism
and Christianity” – i.e. the transfer of a religious memory.
After expressing a desire to cooperate with anyone interested in promoting the “common
good” (as it is defined in the document), the section closes by stating that, “[w]e are determined
to assume our full share of responsibility for this ‘one nation under God’, believing it to be a
nation under the judgment, mercy, and providential care of the Lord of the nations to whom

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In addition to the written document (the Constitution), a constitutional order includes legal theories, norms,
customs and interpretations. It has to do with how the Constitution functions in a society.

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alone we render unqualified allegiance”. This brings to mind the words of Pat Robertson when
he praised the increasing cooperation and political engagement of Evangelical Christians in the
mid-1980s: “When they pledge their allegiance to ‘one nation, under God’, they really mean it”
(1986:299). In short, the Evangelical cause as a whole – i.e. the overall aim of the Evangelical
movement – is to bring politics, laws, and culture in line with a Christianity that is based on
agreement on certain theological doctrines and conservative social issues. In 1994, the ACLJ,
through its Executive Director and its founder, declared that it would assume its ‘full share of
responsibility’ to achieve this goal.

Forming a Public Opinion on Identity

According to Habermas, the public opinion92 in a democracy functions to criticize and control
the government, usually informally, but in periods of election also formally (1974:49). In order
to pressure courts and other governmental institutions to make decisions in accordance with a
particular cause, it is greatly beneficial, and sometimes even necessary for an interest group to
influence the opinion of the general public (see e.g. Casillas, Enns and Wohlfarth 2011:46;
Giles, Blackstone and Vining 2008:303; Baum 1995:151-153). The arguments presented by
the ACLJ in the informal public sphere contribute to the creation of a public opinion, for in-
stance on the abortion issue (see chapter 4). I will now look at how the law firm works to
form a public opinion on a national identity through the promotion of a certain understanding
of the US constitutional order and the founding of the American republic.
The Founding Fathers established an order in which the Constitution and federal laws
were to be the supreme laws of the federation, binding to all states (U.S.Const., art.VI). The general
acceptance of this principle makes constitutional arguments a legitimate justification for political
decisions. Consequently, the interpretation of the Constitution has received much attention from
various interest groups, which champion their own understandings of its provisions. The right to
decide what the Constitution means, however, belongs to the courts. One method preferred by some
judges, lawyers and commenters, is to search for the original intent, i.e. to read the text the way
they think the founders intended it to be understood (Powell 1985:886). This is a method favored
by the ACLJ, as can be exemplified by frequent references to the founders, and statements such as:

[C]hurch/state separation was never meant to exclude religious expression from public life. The Found-
ing Fathers never intended to prevent anyone from saying the Pledge of Allegiance in a public school or
other public arenas simply because it has the phrase "...one nation under God." (…) Many of these cases
concern a general misunderstanding of the law (ACLJ 2012t; See also Surtees 2014).

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The public opinion is formed in the public sphere, and presupposes an informed public, i.e. that information
about the state and its policy is available to the public (Habermas 1974:49-50).

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As I illustrated by the image of Janus in chapter 3, the ACLJ works in two directions (see
attachment 2). On the one hand it tries to influence the opinions of courts directly, guiding the
constitutional interpretations of the judges in the desired direction. On the other, it addresses
the general population, trying to shape a public opinion on a certain national identity.
In Evangelicals and Catholics Together, we saw that the notion of the USA as a Christian
nation was interwoven with a certain understanding of the US Constitution. The document asserts
that the founders embedded a specific Christian moral code in the constitutional order of the
nation, and that this code forms the basis of all human freedoms. The motive for the establishment
of the American republic has been much debated, but according to Gerber, the USA was not
founded to cultivate virtues93, as the idea of a Christian moral code would imply. The purpose of
the founders, Gerber argues, was to secure natural rights, a project that was highly influenced by
liberal thinkers, such as John Locke (Gerber 1993:229-231). To be sure, Evangelicals and
Catholics Together does not deny that the Constitution secures rights, but these rights are seen as
byproducts of the main intention, which is “most essentially a moral experiment”, based on and
protected by Christianity. ‘Religious freedom’ is portrayed as an unrestricted unfolding of religion
in society, always present and visible in public life through verbal and physical expressions.
Attempts to limit these expressions are perceived as attacks on religious freedom. In chapter 4 and
5, I showed that both the ACLJ’s arguments against the ACA’s contraception mandate and its
arguments in favor of public religious expressions contribute to creating a picture of Christianity
being under attack. Regardless of whether they explicitly mention a Christian constitutional moral
code or national identity, the arguments nevertheless relate to this larger system of meanings,
which they also reinforce and contribute to shape.
In Evangelicals and Catholics Together, privatization of religion is depicted as a severe
deviation from the original intent of the founders. Religion is a necessary part of public life, the
argument goes, and every restriction to it equals a limitation of the religious freedom. The defense
of religious symbols in public life, however, does not only rely on this understanding of religious
freedom. The visibility of symbols in itself plays a central role in the forming of public opinion.
This is eloquently illustrated by ECLJ Director General Puppinck’s L’Osservatore Romano article:

The Lautsi case has a unique importance – that of symbolism. The case is symbolic because it questions
not only the legitimacy of the visible presence of Christ in the schools of Rome, but also in the whole of

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The idea that the Revolution was motivated by the cultivation of virtue has been the interpretation of republic-
an revisionists from the 1960s. According to the revisionists, the Revolution was not based on “a philosophical
concern for protecting private rights, [but on] a widely shared commitment to sacrificing private interest for the
public good” (Gerber 1993:209; See also Kramnick 1982:630,664).

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 Europe. Thus, Lautsi is a symbol of the current conflict regarding the future of Europe’s religious and
cultural identity (Puppinck 2010).

Although Puppinck’s article refers specifically to the European context, the principle is the same
as in the American debate: religious symbols, buildings and artefacts may function as constant re-
minders in the cultural landscape, sending out a message about a certain history and identity. Just
as the Statue of Liberty may communicate that you have now come to ‘the Land of the Free’, reli-
gious symbols may convey the message that you have now come to a religious place. That was
how the ECtHR Chamber saw the presence of crucifixes in Italian classrooms: the display could
make pupils feel that they were brought up in an environment marked by a particular religion (see
chapter 5). Recalling the ‘multivocality’ of symbols, however, it stands to reason that not every-
one will interpret a particular symbol in this way. But a religious message is a possibility, and for
the Evangelical cause this is also desirable. The more public and shared the (religious) meaning of
a symbol is, the greater the possibility that it will function as an identity marker. The perhaps
strongest message on identity, however, comes from what is done with such symbols – from what
is communicated by allowing a public display of religious symbols; by allowing just one such
symbol; by removing them; or by making them illegal.
As carriers of meaning, symbols play an important role in the transfer of a religious
memory to future generations. If the meaning is lost, the transfer will be disrupted or the message
disturbed. To illustrate, if the religious meaning of the Ten Commandments was lost, the stone
monument in Pleasant Grove could still be a historically interesting object (similar to the ruins of
an unknown Greek temple), but it would be of no more use for the Evangelical cause than the
city’s first fire station. Through its arguments, the ACLJ may conserve or modulate the meaning
of a symbol, and thus the message it communicates. This way the law firm can bring attention to
the religious significance of a symbol, or to a specific religious message embedded in it, as can be
illustrated by the ECLJ’s depiction of the crucifix as a symbol of the presence of Christ and a
Christian national identity. Consequently, such arguments also contribute to the shaping of the
religious memory of a nation. The depiction of the US constitutional order as a moral experiment
based on Christian values and ideas is a major contribution in this regard. When presented by a
professional law firm like the ACLJ, this interpretation gains legitimacy from the public recognition
of these lawyers as professionals – educated, experienced, and familiar with laws, legal history,
and the language of law. This professionalism also creates a possibility – a ‘gateway’ – for the
same ideas to pass from the informal public sphere to the formal public sphere of courts and poli-
tical institutions. In short, through its interpretation of the constitutional order of the nation, the
ACLJ may influence political decision directly – should the governmental institutions accept its
94
version – and indirectly, through pressure from public opinion. It falls outside the scope of this
inquiry to evaluate the effects of the law firm’s arguments in this regard, but such influence
should be recognized as a possibility.

The Mantle of Religion

The material presented in this study shows that Evangelical law firms, exemplified by the ACLJ,
do have influence on governmental institutions. In some instances this influence has had major
consequences for the American society in general, as well as for the policy of other countries. We
need only to think of the right of American students to establish bible study groups or pray
together on public school ground; the presence of religious monuments in the cultural landscape;
abortion and marriage regulations; the display of crucifixes in Italian class rooms; and, perhaps
even more impressive, the USA PATRIOT Act. While an influence is clear, it is far more difficult
to make predictions about future developments. I still want to make some comments on the potential
consequences of the use of courts to further a religious agenda.
Commenting on religious freedom and democratic will formation, Habermas points to the
need for conflicting parties to reach agreement on the demarcation between positive freedoms (to
practice one’s own religion) and negative freedoms (from the religion of others). The reasons for
what is tolerated or not, must be such that all sides can accept them. Moreover, in a democracy,
equal political participation allows all citizens to feel that they are also authors of the laws which
are to regulate their own behavior and that of others (Habermas 2005:13). Consequently, it would
be unfair to exclude any group of people from participating in the public sphere, thereby
preventing them from giving their contribution to the making of an agreement, forming the public
will. By its very definition, the public sphere is a social realm to which all citizens are guaranteed
access (Habermas 1974:49). It follows that the Evangelical movement, like any other group, has a
‘right’ to present its arguments and engage to promote its causes and interests. According to
Hacker, who based his study largely on interviews with leading lawyers, the ACLJ does not work
to overthrow the secular society, but to ensure conservative Christians “a place at the table”
(2005:36) – or, we could say, a voice in the public sphere. I do not intend to question the
sincerity of this approach. However, in light of the above discussion on the US constitutional
order, we could ask if the law firm’s predominant concern really is to secure access to the public
sphere for the Evangelical movement, or if it is to ‘capture’ the public sphere altogether. The
ACLJ is part of a larger project – a project that is fundamentally religious – which works
‘holistically’ to introduce legislation on a variety of social and political issues, some of which
involve matters of personal conscience.

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 The idea that a Christian ‘moral code’ is embedded in the constitutional order is closely
related to the ‘history and heritage’ argument, which is frequently applied by the ACLJ and many
of its cobelligerents. One could even argue that the ‘history and heritage’ argument is a natural
part of this understanding of the constitutional order. I suggest, however, that both are translations
of the idea of a Christian national identity – an idea which is a contemporary construction of how
the society and national policy ought to be. One reason for my statement is that the arguments
presented by the proponents of a Christian national identity are selective – as can be demonstrated
by contrasting them with Madison’s rather negative historical arguments against such close relations
between religion and government. Madison’s position can be illustrated by his arguments against
the provision of state support for ‘teachers of the Christian religion’. A bill to provide economic
support for religious teachers may in itself seem harmless, or, at worst, like a bad spending of
money. To Madison, however, it was “a signal of persecution”. His arguments reveal a different
view on having one religion or sect as the dominant force in society than what we see in Evange-
licals and Catholics Together. With references to history, Madison argues that such arrangements
are harmful in a double sense. On the one hand, they corrupt religion itself:

Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and
efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal
establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride
and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and
persecution (Madison 1785:§7).

On the other hand, such arrangements corrupt society. “It degrades from the equal rank of
Citizens all those whose opinions in Religion do not bend to those of the Legislative authori-
ty,” Madison argues, pointing to the bill as a first step on the way of intolerance which centu-
ries before had led to the European inquisition (1785:§9). Somewhat ironically, perhaps, it
would seem that ‘the Father of the Constitution’ was far more skeptical to giving prominence
to one form of Christianity than the voices which today claim that the constitutional order
embraces a certain religion-based ‘moral code’.
Madison’s concern for society resembles Beecher’s reflections on creeds in the denominatio-
nal context. Similar to Madison’s reasoning, Beecher argued that creeds were harmful in a double
sense: they corrupted the religion, and forced the thoughts and actions of the believers in one fixed
direction, likely to lead to persecution of those who would not conform. Like Madison, Beecher
pointed to the history of Europe to legitimate his warnings against “testing Church-fellowship by
opinion” (1846:10). While Beecher worried about the increasing cooperation and desire for unity
among a limited group of Protestant Christians in the mid-1840s, the strategy of religious cobellige-

96
rency has since the 1970s led to a much wider cooperation, including both Catholics and Protestants,
and also some Jews (see e.g. ADF 2014). Against the backdrop of Beecher’s discourses (see above), a
document like Evangelicals and Catholics Together could very well be said to function as a ‘creed’,
since it draws a line – based on assent – between those who are united, and those who remain outside.
The document reaches wider than the creeds discussed by Beecher, however, since it targets not only
the denominations, but the whole of society. In light of Madison’s assertion that the existence of
several denominations and interests in a society is the only safeguard of religious and civil rights, the
religious cobelligerency could be seen as one step on the way of intolerance, with potential of
becoming a threat to minority and individual rights. We should here recall the argument of ECLJ
Director General Puppinck in his L’Osservatore Romano article that individual rights should not
infringe the rights of the society as a whole – in this context, the right of the society to have a certain
religious identity (see chapter 5). Both Puppinck’s article and Evangelicals and Catholics Together
promote the view that the dominant role of Christianity in a society is an important contribution to the
‘common good’. Thus the liberal focus of the founders’ project to secure natural rights seems to have
been replaced by a structure of meanings which undermines those very same rights, substituting its
cautions to avoid religious repression with a conservative religious and sociopolitical ‘creed’.
The concern expressed by Madison and Beecher has also been shared by some US Supre-
me Court justices in recent years. In McCreary County v. ACLU (2005), the Court ruled with a 5-4
majority that the Ten Commandments display in two Kentucky courthouses was a violation of the
Establishment Clause. In a concurring opinion, justice Sandra Day O’Connor referred to the
radical idea embodied in the 1st Amendment that “[f]ree people are entitled to free and diverse
thoughts, which government ought neither to constrain nor to direct” (2005:1). Pointing to the
founder’s principle that religion is a matter of personal conscience, she wrote:

Voluntary religious belief and expression may be as threatened when government takes the mantle of
religion upon itself as when government directly interferes with private religious practices. When the
government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it
encroaches upon the individual’s decision about whether and how to worship (O’Connor 2005:3).

Not all Supreme Court justices agreed to this stand, however. In Van Orden v. Perry (2005),
which was reviewed simultaneously, the vote of one justice tipped the Court to approve with a 5-4
majority a Ten Commandments granite plate outside the Texas state capitol (Howe 2008:444).
The margins are small, in other words, but the consequences can be great. The arguments
presented by the Evangelical law firms may persuade uncertain judges, or give sympathizers a
legitimate reason for making decisions which in turn may to strengthen the overall cause of the
Evangelical movement, the idea of a conservative Christian national identity.

97
7 Summary and Conclusion
The purpose of this inquiry has been to throw light on the phenomenon of American Evangelical
law firms and their influence on societal development in the United States and internationally. To
accomplish this, I have examined the strategies and arguments of one influential law firm, the
American Center for Law and Justice, and mapped its role and position in relation to the Evange-
lical movement, society at large, and governmental institutions. In 1994, Casanova concluded that
Evangelicals, who by then had become clearly visible in American politics, only represented a
“well-organized, vociferous minority” which had neither the power nor the number to pose any
threat to the free exercise of religion (1994:161,159). It has been an aim of this inquiry to examine
whether litigation has provided the Evangelical movement with a strategic tool which gives it
such power, and to highlight the role of the law firms’ arguments for this influence.
My inquiry has centered on three questions. The first focused on the method: Why did
Evangelicals turn to litigation? The establishment of Evangelical law firms is related to the Evan-
gelical movement’s political mobilization, which slowly began in the 1940s as a reaction to the
Fundamentalists’ withdrawal from society and their policy of separation from those who did not
agree with their fundamental beliefs. The Evangelical mobilization was driven by prominent
leaders who championed a strategy of sociopolitical infiltration and cooperation with other
groups on central issues. Parallel to this, the growing use of broadcasting by Evangelicals
contributed to spreading their message across the nation and building up a sense of unity among
the diverse groups of Evangelical Christians. The sociopolitical engagement of ordinary church
members was a response to the religious call presented to them by their pastors and famous
preachers. They also responded to the use of religious language by political leaders who seemed
to step forward as guardians of certain core values. The frequent portrayal of these religious and
political leaders together in both secular and Christian media strengthened the idea that religion
and politics belonged together. An important recognition, however, was that influence on the
legislative and executive branches of government was not enough to change the society.
Experience showed that the US Supreme Court played a major role for many of the liberal
changes that had taken place since World War II, such as the ban on prayer and Bible reading in
public schools, and the liberalization of abortion laws – two issues repeatedly used as evidence
that secularism was about to bring society into moral decay. The establishment of Evangelical
law firms from the late 1970s onwards was thus part of a new ‘holistic’ approach to turn the
societal development in the desired direction; a response to the call to Evangelical lawyers to
fulfill their Christian duty and defend the causes of the Evangelical movement in courts; and a

98
mimic of the strategy which successfully had been worked out by liberal movements in
preceding decades.
The second question of my inquiry brought attention to the law firms’ arguments: How do
Evangelical lawyers present their causes in a (per definition) secular court? As professionals, the
Evangelical lawyers function as ‘mediators’ between the Evangelical movement and govern-
mental institutions. While the Evangelical movement itself has no direct influence on the courts’
decisions, the law firms may access the judges either directly at oral hearings or indirectly
through their legal briefs. This way they may influence the judges’ opinion on a certain issue, or
perhaps more important, they provide the court with arguments that it may use to justify its
rulings – should it agree with the cause. In a pluralistic liberal democratic nation like the United
States, political decisions (e.g. laws or court rulings) cannot represent the world view of one
particular religious group without repressing the values and ideas of other groups. The religious
and moral causes of the Evangelical movement must therefore be translated into a neutral (i.e.
secular) language, which is acceptable to the general public, and hence permissible for govern-
mental institutions. As professionals, the Evangelical lawyers know the law, the legal history, and
the language of law. They are competent to adapt their arguments to a particular situation and a
particular court. The Evangelical law firms thus function as a ‘gateway’ through which the causes
of the Evangelical movement may enter governmental institutions, translated into neutral argu-
ments. The flexibility of such translation underlines one important point: what may sometimes
seem to be conflicting arguments should instead be understood as various translations of the same
cause. Moreover, the law firms’ choice of arguments – both in and outside the courtroom – also
contributes to how a specific issue is perceived by the society in general, as well as by their
targeted supporters. They thus contribute to shaping the causes of the Evangelical movement.
My third question focused on consequences: What are the consequences of this group’s
use of litigation as a strategy to promote its goals and protect its interests, compared to other
social and political movements? Like various liberal interest groups, the Evangelical law firms
have influenced many court decisions which in turn have had major impact on various parts of
the society – e.g. public schools, women’s reproductive rights, and public religious expressions
– both in the USA and internationally. While Casanova in 1994 claimed that the power of the
Evangelical movement had been greatly exaggerated, I suggest that the establishment of
professional law firms has provided the movement with a tool that may indeed influence
societal development. At the time of Casanova’s book, the ACLJ had just won its first Supreme
Court cases, and the Evangelical law firms had only received limited attention by the media and

99
among scholars. The potential of Evangelical litigation was, in other words, not as visible as for
instance the movement’s political lobby groups.
Discussing the political project of the Evangelical movement, Casanova in 1994 dismissed
the fear of some liberal groups that the movement aimed at establishing a ‘Christian theocracy’:

Despite the alarmist warnings emanating from the ACLU and other countermobilized secularists that
Protestant fundamentalism poses a threat to “our civil liberties”, it certainly does not pose a threat to the
free exercise of religion. In any case, even if they wanted to, something which is doubtful, fundamenta-
lists certainly do not have either the power or the numbers to undermine the principles of the religious
clauses of the First Amendment. Protestant fundamentalism neither wants to nor could become an
established church (Casanova 1994:159).

Casanova’s book, however, was published the same year as the document Evangelicals and Catho-
lics Together, which I have used to illustrate what I call ‘the Evangelical cause as a whole’ – the
notion that the USA has a certain religious identity. While the document affirms the constitutional
separation of church and state, it nevertheless reveals a different understanding of the constitutional
order and religious freedom than the founders themselves. Influenced by liberal thinkers, the
founders set out to establish a safeguard of individual rights. The aim expressed in Evangelicals and
Catholics Together, however, places the right of society to have a certain religious identity – legiti-
mately visible through public religious expression – above the rights of the individual. We should
here recall the words of James Madison: “If a majority be united by a common interest, the rights of
the minority will be insecure.” (1788b:323). While the size of the Evangelical movement is highly
disputed – estimates ranging from 7 to 42% (Hackett and Lindsay 2008:449) – I would say that
numbers in this regard are irrelevant. Through its ‘holistic’, cobelligerent approach, and not least
thanks to the establishment of professional law firms, the Evangelical movement has resources that
may indeed impact the whole society through the decisions of governmental institutions. Of course,
these efforts do not exist in a vacuum; liberal forces still work to counterbalance its influence.
However, at the Supreme Court level, the Evangelical lawyers only need to convince five Justices in
order to bring about a decision that may have major impact across the nation. At educational insti-
tutions, like Pat Robertson’s Regent University, young people are brought up to believe that it is their
Christian duty to change the world by entering leading positions (Regent Uni. 2014b). While
attempts to change the world through terrorism have received vastly more attention (see e.g. Young
and Findley 2008), the Evangelical movement plays by the rules, i.e. by using the very system that
the founders established to prevent the dominance of one group or sect over the others. While a
conservative Christian dominance may not occur, such a development should nevertheless be seen
as a possibility.

100
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Attachment 1 – ACLJ Supreme Court Cases

After his first Supreme Court case, Board of Airport Commissioners of Los Angeles v. Jews
for Jesus (1987), Jay Sekulow – as the only ACLJ lawyer – has argued eleven cases before
the Supreme Court. The following is an overview of these cases. The case descriptions are
taken from the ACLJ’s own web page (ACLJ 2012d). Type of case (as defined by the ACLJ)
follows below the case title (e.g. Equal Access). ACLJ victories are marked with *.

Board of Education of Westside Community v. Mergens (1990)*

Equal access
ACLJ Chief Counsel Jay Sekulow served as lead counsel and presented the oral arguments in
a case focusing on the constitutionality of the Equal Access Act involving the formation of
Bible and prayer clubs on public school campuses. Sekulow successfully argued that the
Equal Access Act and the Constitution required that these students receive the same privileges
to form student clubs as other students on campus, regardless of the religious nature of their
club. In an 8-1 decision, the high Court upheld the constitutionality of the Equal Access Act
which requires public schools to allow student-initiated Bible Clubs or prayer groups equal
access to meet on campus.

United States v. Kokinda (1990)

1st Amendment (free speech)
ACLJ Chief Counsel Jay Sekulow served as lead counsel and presented the oral arguments in
a case involving the regulation of literature distribution and fund solicitation on sidewalks in
front of a post office. In a deeply divided decision, the Supreme Court held that due to its
location and purpose as the only way to enter or exit the post office, that particular sidewalk
was not a public forum open to unrestrained free speech activity.

Bray v. Alexandria Women’s Health Clinic (1993)*

Pro-life
ACLJ Chief Counsel Jay Sekulow served as lead counsel and presented oral arguments twice
in a case determining whether pro-life demonstrators could be sued under the Ku Klux Klan
Act of 1871. In a 6-3 decision, the Supreme Court held that the 120-year-old anti-discrimina-
tion law did not apply to pro-life demonstrators, because for that law to apply, there must be a
“class-based, invidiously discriminatory animus [underlying] the conspirators’ action.” The
Court found that there was absolutely no evidence of animus against women, but that they

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“share[d] a deep commitment to the goals of stopping the practice of abortion and reversing
its legalization.”

Lamb’s Chapel v. Center Moriches School District (1993)*

Equal access (free speech)
ACLJ Chief Counsel Jay Sekulow served as lead counsel and presented oral arguments in a
case upholding the equal access rights of religious organizations in their use of public school
facilities after-hours. In a unanimous decision, the Supreme Court held that the school
district’s prohibition of the church’s use of school facilities, solely because of the religious
content of its speech, was an unconstitutional restriction on the members’ free speech rights.

Schenck v. Pro-Choice Network of Western New York (1997)(*)

Pro-life; 1st Amendment (free speech)
ACLJ Chief Counsel Jay Sekulow served as lead counsel and presented oral arguments before
the Supreme Court in a case that focused on the constitutionality of “floating” speech-free
“bubble zones” around abortion clinics. The Court agreed with Sekulow that the “floating
buffer zones” were an unconstitutional restriction on the free speech rights of pro-life
demonstrators.

Hill v. Colorado (2000)

Pro-life; 1st Amendment (free speech)
ACLJ Chief Counsel Jay Sekulow served as lead counsel and presented oral arguments in a
case centering on a Colorado law that restricted free speech activity outside abortion clinics.
The Supreme Court upheld the law as constitutional time, place, and manner restrictions,
noting: "Although the statute prohibits speakers from approaching unwilling listeners, it does
not require a standing speaker to move away from anyone passing by. Nor does it place any
restriction on the content of any message that anyone may wish to communicate to anyone
else, either inside or outside the regulated areas.”

Santa Fe Independent School District v. Doe (2000)

Equal access; Establishment Clause
ACLJ Chief Counsel Jay Sekulow served as lead counsel and presented oral arguments in a
case involving the constitutionality of student-led prayer at high school sporting events. The
Supreme Court held that the Establishment Clause of the First Amendment prohibits school
officials from taking affirmative steps to facilitate prayer at school functions such as school

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football games. The Court found that the school district “failed to divorce itself from the
religious content in the invocations.” The court did conclude however that "nothing in the
Constitution as interpreted by this Court prohibits any public school student from voluntarily
praying at any time before, during, or after the school day."

Operation Rescue v. National Organization for Women (2003)*

The Supreme Court determined that the Racketeer Influenced and Corrupt Organizations
statute (RICO) – a federal statute targeting drug dealers and organized crime – could not be
used against pro-life demonstrators for their nonviolent protests. ACLJ Chief Counsel Jay
Sekulow served as Counsel of Record for Operation Rescue in this case. The Supreme Court
concluded that pro-life demonstrators were not racketeers engaged in extortion and that the
RICO statute could not be used against them.

Locke v. Davey (2004)

Free Exercise Clause
ACLJ Chief Counsel Jay Sekulow served as lead counsel and presented oral arguments in
Locke v. Davey, a case involving the free exercise rights of a college student who was denied
a state scholarship because he declared his major to be pastoral studies. The majority decision
determined that Washington's policy prohibiting state scholarship funds from being used to
assist students who pursue a degree in religious studies from a religious perspective is
constitutional. However, the decision does not prohibit states from restructuring scholarship
programs to permit the pursuit of a degree in devotional theology.

Operation Rescue v. National Organization for Woman (2006)*

Pro-life; 1st Amendment (free speech)
On February 28, 2006, the Supreme Court unanimously ruled in favor of pro-life demon-
strators and organizations bringing an end to a nearly 20-year-old legal marathon involving a
federal racketeering statute used against pro-life demonstrators. The high Court ruled that the
actions of the pro-life demonstrators fell outside the scope of the federal Hobbs Act and,
therefore, the federal Racketeer Influenced and Corrupt Organizations (RICO) statute - a law
designed to combat drug dealers and organized crime. In its decision, the high Court ordered
the lower courts to enter a ruling in favor of the pro-life demonstrators and organizations,
bringing an end to a case. ACLJ Chief Counsel Jay Sekulow represented Operation Rescue
and served as Counsel of Record in the case.

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Pleasant Grove City v. Summum (2009)*
1st Amendment; Governmental speech
In a unanimous decision, the Supreme Court of the United States issued a landmark First
Amendment ruling on February 25, 2009 clearing the way for governments to accept perma-
nent monuments of their choosing in public parks. The decision comes in the case of Pleasant
Grove City v. Summum, a critical First Amendment case in which the ACLJ represented the
Utah city in a challenge to a display of the Ten Commandments in a city park. ACLJ Chief
Counsel Jay Sekulow presented oral arguments to the high Court on November 12, 2008. The
ACLJ asked the high Court to overturn a decision by the U.S. Court of Appeals for the Tenth
Circuit that ordered Pleasant Grove City, UT, to accept and display a monument from a self-
described church called "Summum" because the city displays a Ten Commandments monu-
ment donated by the Fraternal Order of Eagles. Sekulow successfully argued that the lower
court ruling was flawed - a ruling that said private parties have a First Amendment right to put
up the monuments of their choosing in a city park, unless the city takes away all other donated
monuments - a ruling that runs counter to well-established precedent that the government has
to be neutral toward private speech, but it does not have to be neutral in its own speech.

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Attachment 2 – The Two Faces

The Formal Public Sphere The Informal Public Sphere

Governmental institutions, e.g. courts Society at large, including the Evan-

gelical Movement

ARGUMENT A
ARGUMENT A

ARGUMENT B ARGUMENT C

The image of Janus is here used as an illustration of the ACLJ’s role and position in society. Just as the two faces
point in two directions, the ACLJ aims to influence the opinion and will of both the formal public sphere and the
informal public sphere. The law firm may present the same argument in both spheres (argument A), or it may
present different arguments for the same cause in different spheres (argument B and C). The stippled line
represents a filter: only certain arguments – i.e. those that are formulated in a neutral, secular language – are
accepted in the formal public sphere. Religious arguments must therefore remain outside. The ACLJ, however,
works as a ‘gateway’ in order for religious causes to enter into governmental institutions in an acceptable form,
i.e. as translated into a non-religious, neutral argument.

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Attachment 3 – The Building and Translation of Causes

The Formal Public Sphere The Informal Public Sphere

Governmental institutions, e.g. courts The Evangelical movement

Religious and moral causes

Argument

Translation into neutral (secular) language

Building on the illustration in attachment 2, this model shows how the ACLJ relates to the causes of the
Evangelical movement in three ways. First, the movement’s causes form the context in which the ACLJ’s
arguments needs to be viewed in order to be understood (square). Second, the law firm’s arguments contribute to
build up the idea that certain causes (e.g. the fight to en abortion and the defense of public displays of religious
monuments) are important parts of the Evangelical movement’s religious and moral commitment (upper arrow).
Third, the ACLJ works to translate these causes into neutral or secular arguments so that they may enter the
formal public sphere of governmental institutions (middle arrow). Without such translation, the causes may not
enter (bottom arrow). As long as the society at large does not accept the causes or the religious arguments used
to justify them, the government cannot make political decisions (laws, court rulings, decrees, etc.) involving
these causes without having arguments that are already translated into a neutral (secular) language.

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