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Anti-Gay Legal Guns For Hire: How The Right Uses 'Religious Liberty' To Fight Discrimination Suits

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Recently, the concept of "religious liberty" as legal loophole has gotten a degree of national attention, with state legislators in Tennessee and Michigan proposing language to exclude religious beliefs, or "moral convictions," from state bullying laws. Michigan Republicans backed off their version of the gutted anti-bullying bill after public outcry. But Tennessee has its own version that may soon be taken up by the legislature. This bill creates a loophole for religious, philosophical or political beliefs in current anti-bullying laws.

The bullying laws are the most recent manifestation of a much broader effort by groups like the ADF to argue that "religious liberty" should provide cover for people who would discriminate against gays and lesbians. There is an essential conflict, the ADF argues, between religious freedom and discrimination lawsuits, because if discrimination against gays and lesbians is based on a religious conviction, then it is protected under the First Amendment.

In practice, the ADF has used this argument in a wide range of lawsuits, like that against Young, the B&B owner, and, in one of its most high-profile suits, in defending the Boy Scouts of America over its right to oust troop leaders for being openly gay. The 2000 case made it all the way to the Supreme Court, and the justices ruled 5-4 in the Boy Scouts' favor.

In another case, the ADF unsuccessfully defended Jennifer Keeton, a former student at Augusta State University. The Georgia-based school had expelled Keeton from its graduate level Counselor Education Program, because she said she would not comply with the American Counseling Association's Code of Ethics and keep her anti-gay views to herself when counseling other students. Keeton said the school violated her First Amendment rights when it forced her to attend a remediation program for understanding LGBT issues, after she indicated that she would try to "convert" gay students she was counseling.

The ADF also settled with Missouri State University officials on behalf of Emily Brooker, a student in the school's social work program, after she wouldn't participate in a class assignment to write a letter to state legislators in support of adoption by same-sex couples. The school had threatened to withhold her degree.

Outside of the courts, the ADF has pursued similar arguments in opposition to things like federal hate crime legislation, which was broadened by Congress in 2009. "This is the first time you would have written into law a government disapproval of a religious belief held by the majority of Americans -- that homosexuality is sinful," said Erik Stanley, senior legal counsel for the Alliance Defense Fund, according to USA Today. "It's more of a slippery slope argument than about the law itself."

"When you have pastors being called to testify about what they taught or preached to a person convicted of a hate crime, that's going to send a shock wave through the religious community," says Stanley. "It will lead to a chill on speech and free exercise of religion as it relates to homosexual behavior."

Lambda Legal, which is representing Diane Cervelli and Taeko Bufford, the lesbian couple suing the B&B owner in Hawaii, disagrees with the "slippery slope" characterization by the ADF and other right-wing groups. "The tragic irony is that religious freedom is endangered by those who raise false alarms about how the freedom to marry for gay couples will somehow undermine religious freedom," the group says on a FAQ on "Freedom of Religion and Freedom from Discrimination." "They suggest that the well-established rules and principles should change for resolving conflicts between the freedom of religion and freedom from harmful discrimination. But if the rules and principles change with regard to protecting gay people from discrimination, they can change with regard to protecting others from discrimination, including discrimination based on religion itself."

"We have developed as a society well-established rules that attempt to work things out for the best of everyone as a whole," Lambda Legal says. "Those rules have already applied to discrimination based on race, sex, and religion, and also have applied for many years to discrimination based on sexual orientation. These time-tested rules against discrimination should not change because states have decided to stop discriminating against gay couples in marriage."

The ADF is a Scottsdale, Arizona-based non-profit that was formed in 1994 by prominent members of the religious right, like the late Dr. James Kennedy, Don Wildmon of the American Family Association and Rev. James Dobson of Focus on the Family. According to its website, leaders of 35 ministries also helped form the legal defense fund. The ADF's current president, Alan Sears, served as the director of Attorney General Edwin Meese's Commission on Pornography during the Reagan era, and wrote a book called "The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today," which argues that "the primary aim of the homosexual agenda is to 'trump' the constitutionally protected rights of all other groups - especially people of faith."

The ADF purports to be "a servant organization that provides the resources that will keep the door open for the spread of the Gospel through the legal defense of religious freedom, the sanctity of life, marriage and the family." It sees itself as the conservative alternative to the ACLU, and has a number of in-house attorneys, but coordinates with 2,100 "allied attorneys" all over the country. It even holds free, week-long sessions to train other attorneys "to battle the radical homosexual legal agenda," as long as participants agree to "provide 450 hours of pro bono legal work on behalf of the Body of Christ."

According to the site, it currently has over 150 ongoing litigation cases, and on average wins "more than three out of every four cases brought to conclusion."

Primarily, the ADF's funding comes from private donations -- including mainstay right-wing donors like the Bill and Berniece Grewcock Foundation, which, according to Media Matters, had contributed at least $100,000 to the ADF as of 2009. According to its site, the ADF has spent $35 million funding cases all over the country since 1994. In 2009, the ADF even offered free legal representation to county recorder offices in Iowa who refused to issue marriage licenses under the state's new gay marriage law because of "rights of conscience."

The ADF isn't the only group litigating religious liberty. There's also the Liberty Counsel, a non-profit 501(c)3 and a project of the late Jerry Falwell's Liberty Network. The Liberty Counsel recently took up the case of high school student Dakota Ary in Texas, who was suspended for saying that "being a homosexual is wrong" during a German class after the teacher brought up LGBT rights. Ary's mother contacted the Liberty Counsel, and the school reversed the suspension after meeting with Ary and LC attorney Matt Krause.

"I told the school that he should never have been suspended for exercising his Constitutional rights," Krause told Fox News Radio. "The principal is sincere in trying to do the right thing and hopefully they will tell the teacher, 'Do not do that anymore.' He won't be pushing his agenda."

Liberty Counsel chairman Mat Staver summed up the group's position thusly on a recent radio broadcast for Truth in Action Ministries: "I think that there is a clash that's coming and it is very significant, and it is the clash between religious freedom and the homosexual rights agenda. There will be a winner and there will be a loser. And it's not necessarily because of those who advocate religious freedom, it's because of those who advocate the homosexual rights agenda. It's no longer about tolerance and it never has been about tolerance, it's never been about coexisting and so forth, it has always been about dominance."

Liberty Counsel also brought the lawsuit against New York's marriage equality law on behalf of New Yorkers for Constitutional Freedoms, and boasts that New York is just one of the cases in which it "defended marriage as the union of one man and one woman in more than 45 separate legal cases since 2004."

The ADF did not return TPM's multiple requests for comment.