It is unfortunate to see respected media outlets distorting the work of Alliance Defending Freedom.
On Sept. 28, The Washington Post published an article claiming to reveal how “aggressive” ADF has been in our legal “tactics.” In a nutshell, the article insinuates that ADF is fabricating cases and clients in order to win cases and create legal precedent. That is false.
Do you have to be prosecuted by the government before you can go to court to defend your rights? The short answer is no. When a law threatens your fundamental freedoms, you can challenge it in court even before it’s been enforced against you.
When ADF files these kinds of lawsuits, called pre-enforcement challenges, the cases are not “made-up” as The Post quoted a lawyer as saying. In fact, the opposite is true: some government entity is imposing new threats to our clients’ rights—and maybe yours too. We are standing in the gap to stop them.
Can anyone seriously think that people of faith across the country are not threatened by laws and activists looking to target them? Jack Phillips—the Colorado cake artist—has been in litigation for over a decade, targeted repeatedly by government officials and now by a private activist attorney who called Jack to “correct the errors” of his thinking. The need for people to stand up and challenge unconstitutional laws is great. That’s exactly what the ADF clients discussed in The Washington Post article did.
What is a pre-enforcement challenge?
A pre-enforcement challenge is a lawsuit brought to challenge a law that has not yet been enforced against the challenger.
Courts allow pre-enforcement challenges when enforcement of a law is soon to occur, poses a substantial risk of violating constitutional rights, or presently injures a citizen. Pre-enforcement challenges frequently arise in a First Amendment context.
Widespread use of pre-enforcement challenges
ADF’s practices are standard fare for pre-enforcement challenges and civil-rights litigation. Other groups, including the NAACP and ACLU, have been quite creative in their efforts to bring pre-enforcement challenges. Entire law review articles have documented these practices and explained how some of these groups have taken proactive and aggressive steps to litigate their cases.
For example, in ACLU of Illinois v. Alvarez (2012), the ACLU, under the direction of one of its attorneys, created an entirely new surveillance program in an effort to challenge a particular law. As the 7th Circuit noted, “Faced with so obvious a test case, the district court proceeded with some skepticism.” But the circuit court still found standing and ruled for the ACLU.
In fact, many nonprofit advocacy groups have even used “testers”—people who are often paid and have no real interest in accessing the services they seek and whose sole purpose for making a request is to bring a lawsuit. The ACLU has called being a tester an “honored and necessary role” in civil-rights cases.
ADF and pre-enforcement challenges
Unlike the organizations mentioned above, ADF has not used testers to initiate lawsuits or relied on testers to establish standing. ADF’s clients are real people with real businesses and real plans or practices confronted with laws that created real threats to their constitutional rights. All of that’s been proven again and again in court as our clients have stated under oath and under penalty of perjury that they really do or want to do what they say.
Although “tester” standing is much more questionable than ADF’s standing arguments in favor of artists who really want to operate in the wedding field, The Washington Post does not criticize this practice of using testers or the groups that have used testers for decades to bring lawsuits to achieve their advocacy goals.
To be sure, opposing government officials have questioned our clients’ standing to challenge unjust laws. But they have lost time and again. For example, when the city of Louisville mirrored some of The Washington Post’s talking points and questioned our client Chelsey Nelson’s “decision to work part-time after having a child,” the court reviewed all the evidence, rejected those arguments, and concluded that “the City’s objections to a ‘manufactured’ test case” do not “add up to much.” Exactly.
ADF is proud to stand in the long tradition of pre-enforcement challenges and civil-rights litigation. We have been filing pre-enforcement challenges for years. In most of those cases, courts have found that our clients faced a credible threat of prosecution and therefore had legal standing to challenge the unconstitutional law. And in other cases, the government has voluntarily revised unconstitutional policies because of our clients’ lawsuits.
In 2015, for example, California passed the so-called “Reproductive FACT Act,” which was aimed at compelling pro-life pregnancy centers to express messages that contradicted their beliefs. Shortly after the law’s passage but before the law could be enforced against ADF’s clients, ADF filed a federal lawsuit on behalf of a nonprofit network of pregnancy centers and two individual centers in the state seeking to have the unconstitutional law struck down. The case, National Institute of Family and Life Advocates v. Becerra, eventually made its way to the Supreme Court, which in 2018 overturned California’s law. Both the Supreme Court and the lower court (the 9th Circuit) agreed they could consider this pre-enforcement challenge because the pregnancy centers faced a realistic danger from the California law.
In another example, 303 Creative v. Elenis, not a single justice on the U.S. Supreme Court disagreed that Lorie Smith had standing to bring a pre-enforcement action against Colorado’s law. Academics and Supreme Court advocates from different backgrounds agreed with that conclusion about standing. Those who criticized it largely ignore that left-leaning groups like the ACLU have repeatedly used pre-enforcement lawsuits.
The point is, in all these situations, there is nothing unusual afoot. Our clients have been faced with laws that posed substantial threats to their constitutional rights. And like countless Americans have done throughout history, they have a right to challenge these unconstitutional laws instead of waiting to be punished for peacefully living out their beliefs.
That’s why so many people seek out the services of ADF and why ADF, like any other law firm, helps prepare and protect our clients, ensuring their success in defending their constitutional rights.
Litigation often takes many years, and life happens in the interim. The Washington Post recognizes that many of our clients have active businesses in the wedding industry. For example, website designer Lorie Smith continues to operate her design studio after her Supreme Court victory. Photographer Emilee Carpenter still actively photographs weddings. And photographer Chelsey Nelson has continued to edit wedding photographs over the last two years, and she just recently photographed two weddings. In addition, cake artist Jack Phillips has been in business for years.
Yet The Washington Post implies that several of our clients have acted inappropriately by “abandon[ing] weddings” after their lawsuits ended. That distorts the truth. Here’s a rundown of ADF’s clients who have been in the wedding business, and what they’re up to now:
- Brush & Nib: Joanna (Duka) De La Cruz and Breanna Koski provided wedding services after winning their lawsuit but had to eventually close their small business after Joanna moved out of state and began working in a new field.
- Telescope Media Group: Carl and Angel Larsen’s live-event business was limited by the COVID-19 pandemic. They filmed weddings after obtaining a victory in their case, but the pandemic made it difficult for them to pursue this new field.
- Chris Herring Photography: Chris had a personal situation arise which required him to voluntarily dismiss his case.
- Covenant Weddings: Kristi Stokes provided wedding services after bringing her lawsuit, but she too eventually had to stop for personal reasons.
- Amy Lynn Photography Studio: Amy Lawson operated in the wedding field for a time and photographed weddings after winning her lawsuit but eventually decided to emphasize other aspects of her business.
The Washington Post does not provide the full context with all these important facts. That disadvantages readers and distorts the truth.
More generally, small businesses—which describes all the ADF clients that The Washington Post discusses—close at a high rate in the U.S. Data from the Bureau of Labor Statistics show that roughly 20 percent of small businesses close in the first year, and about half shutter within five years. So the fact that Joanna (Duka) De La Cruz, Breanna Koski, and Kristi Stokes no longer operate their businesses is not odd. Statistically speaking, it’s to be expected.
In short, despite what The Washington Post suggests, our clients are real people who had or still have real businesses with actual operations in the wedding industry or real plans to enter it. Amid its efforts to tarnish ADF, The Washington Post ignores that these cases aimed to achieve an important win for all Americans. Because of those victories, the government cannot force any of us to express messages we don’t believe, no matter our views on marriage or anything else.