The Legal Arm of the Christian Right

LGBTQ Rights

In a 1997 fundraising note entitled, “Chief counsel’s confidential report on the homosexual agenda,” Jay Sekulow accused everyone from the entertainment industry and public schools to Fortune 500 companies of promoting the “homosexual agenda,” which he described as a “runaway train bent on destroying our communities.”³⁹

“Homosexuals are not only out of the closet, they are out to destroy the family as we know it,” Sekulow warned, writing that gay rights advocates intend to make America “the world’s greatest promoter of every form of sexual deviancy.” He insisted in the memo that “the state has a compelling interest to ban the act of homosexuality” and at minimum refuse “to promote the act that society deems destructive.”

Though Sekulow has toned down his rhetoric, the ACLJ still lists the “radical homosexual agenda” as a principal concern, alleging that “there is a continuing threat against the free speech rights of those who refuse to subscribe to the notion that homosexuality is an inborn trait that is morally neutral.”⁴⁰

In Congress and in the courts, the ACLJ has been a consistent opponent of gay rights initiatives and a champion of anti-gay legislation. According to Sekulow, the ACLJ has employed an “aggressive strategy of defending the traditional view of marriage in each significant marriage case that existed anywhere in the United States,”⁴¹ including California,⁴² Connecticut,⁴³ Massachusetts,⁴⁴ Nebraska,⁴⁵ New Jersey,⁴⁶ Oregon,⁴⁷ Vermont,⁴⁸ and Washington.⁴⁹ In 2010, in an attempt to force Washington, D.C., to put its own marriage equality law up to a popular referendum, the ACLJ filed a brief on behalf of 49 Republican members of Congress.⁵⁰

In addition to helping to draft and defend DOMA, Sekulow testified before the U.S. Senate in 2004 on behalf of the Federal Marriage Amendment, which if passed would have defined marriage in the Constitution as between one man and one woman. Sekulow claimed that since marriage between one man and one woman is the “the cornerstone of our welfare, of our liberties and of our responsibilities as a free people,” offering same-sex couples the freedom to marry would put such freedoms at risk. “No matter what you call the union of any grouping of persons other than one man and one woman, it will never be a marriage,” Sekulow stated, predicting that “the legal recognition of any relationship on the same level as traditional marriage will wreak irreversible harm on American society.”⁵¹

When the Obama administration’s Department of Justice dropped its defense of DOMA on the grounds that it is unconstitutional, Sekulow told Robertson on he 700 Club that “we are now living in a monarchy,”⁵² and on his own radio show, Jay Sekulow Live, claimed that Obama is leading an “imperial presidency.”⁵³ Sekulow neglected to mention that the Departments of Justice under both presidents Bush opted not to defend laws they deemed unconstitutional.⁵⁴

Beyond targeting marriage equality initiatives, ACLJ works against any efforts to end anti-LGBTQ discrimination. In 1999, the ACLJ challenged an ordinance in Louisville, Kentucky, that banned employment discrimination based on “sexual orientation” and “gender identity.”⁵⁵ A year earlier, the group successfully represented two Minnesota teachers who protested their school’s requirement that they participate in a session on “Gays and Lesbians in the Workplace,” charging that the “state of Minnesota tried to force these employees to change their beliefs about homosexuality.”⁵⁶

The organization even opposed the Matthew Shepard and James Byrd Hate Crimes Prevention Act, which in 2010 made it a federal hate crime to attack someone based on their sexual orientation, gender, or gender identity. The ACLJ maintained that “this isn’t really anything about crime, it’s really about approving the sexual orientation statutes to include that in the context of civil rights.” Sekulow called the law a “slippery slope” meant to “change a social structure” and “serve as a muzzle,” eventually giving attorneys a chance to prosecute “a pastor for giving a sermon.”⁵⁷

Sekulow has championed the Boy Scouts of America’s ban on openly gay scoutmasters for years, telling donors in March 2000 that the Scouts have “come under attack from homosexual activists—who may well set their sights on your church next.”⁵⁸ In an amicus brief to the Supreme Court, the ACLJ defended the Boy Scout’s finding that homosexuals are not morally “clean,” writing, “Men who by word or deed condone homosexuality cannot, therefore, be good role models.”⁵⁹

The group unsuccessfully defended state bans on sodomy in Lawrence v. Texas (2003), arguing in an amicus brief to the Supreme Court that “the ban on same-sex sodomy clearly passes constitutional muster” in order to further “public morality” and combat “health risks.”⁶⁰

Most recently, the ACLJ has championed the poorly-named Military Religious Freedom Protection Act, which would prohibit facilities on military property from use in same-sex marriage ceremonies, even in states where such unions are legal and chaplains may want to officiate.⁶¹ In an ominous email to members, Sekulow warned that if such practices are not banned, then “soon military chaplains could be required to perform same-sex marriages.”⁶² Sekulow’s son Jordan hosted the bill’s chief sponsor, Rep. Tim Huelskamp (R-KS), on his radio show, where the congressman alleged that the Obama administration is “using the military as a guinea pig” for the “radical homosexual agenda.”⁶³

This fall, the ACLJ fired a senior counsel, James Henderson, after bloggers revealed he lived a double life as a gay man who had sex with at least one underage (17-year-old) boy.⁶⁴

Reproductive Rights

The ACLJ is firmly rooted in the anti-choice movement, building its “pro-life” reputation by defending opponents of abortion rights who harassed health care workers and clients.

Sekulow argued on behalf of anti-abortion rights activists in the 1996 Supreme Court case Schenck v. Pro-Choice Network of Western New York. In the case, Paul Schenck, then executive vice president of the ACLJ, was leading blockades intended to prevent access to abortion clinics. Sekulow challenged the constitutionality of court-ordered “buffer zones” prohibiting demonstrations around the clinic’s entrance (“fixed buffer zones”) and vehicles and people seeking to enter the clinic (“floating buffer zones”). The Supreme Court ultimately upheld the constitutionality of fixed buffer zones, but struck down floating buffer zones. In a similar Supreme Court case in 1999, Sekulow unsuccessfully represented anti-choice activists in Colorado who violated a state regulation prohibiting unwanted communications at health clinic entrances with people going inside.⁶⁶

During the George W. Bush administration, an ACLJ fundraising appeal warned that “babies are still at risk of the gruesome torture-murder called partial-birth abortion.” While awaiting the passage of Congressional legislation banning a form of late-term abortion, the ACLJ called for donations to fight expected attacks from the ACLU and the “multi-million-dollar abortion industry.” The Partial-Birth Abortion Ban passed in 2003 and was upheld by the Supreme Court in 2007.⁶⁷

In 2011, the ACLJ represented a Texas bus driver fired after refusing to transport two women to a Planned Parenthood clinic. While the clinic offers a wide range of services ranging from pregnancy tests to breast cancer exams, the driver came to the conclusion through prayer that the passengers were seeking an abortion and refused to drive them.⁶⁸ Even the ACLJ attorney representing this seemingly omniscient bus driver admitted that he could not have known why the women were going to a Planned Parenthood facility.⁶⁹ The transit service settled with the driver in 2011, under the condition that he would never seek work in the transportation system again, under advice “that it would cost a lot more in attorney fees than it would cost to settle.”⁷⁰ That same year, the ACLJ won a lengthy legal battle representing four Illinois Walgreens pharmacists who were fired for denying customers the “morning-after” pill.⁷¹

The ACLJ claimed that under Obama, the Department of Homeland Security labeled “pro-lifers [to be the] most dangerous domestic terrorists,”⁷² in what Sekulow called an “inflammatory” report.⁷³ The report in question mentioned “opposition to abortion” in a single footnote as an example of a single issue that might motivate some homegrown terrorists.

A leading proponent of defunding Planned Parenthood, the ACLJ filed an amicus brief in May 2012 supporting the state of Texas’s decision to strip funding from the women’s health organization.⁷⁴ ACLJ founded the Committee to Stop Taxpayer Funding of Abortion in order “to stop this atrocity,”⁷⁵ even though the Hyde Amendment already bars federal dollars from going towards abortion services. Sekulow boasted that the ACLJ has brought “a whole series of lawsuits” against Planned Parenthood.⁷⁶

The ACLJ also started the Committee to Protect America’s Constitution to protest the Obama administration’s decision to require birth control coverage in insurance plans, including those at institutions affiliated with religious denominations. Sekulow called the move a “radical assault on our values” and has filed an amicus brief, representing Rep. Jeff Landry (R-LA), against the new regulation.⁷⁷

“It is clear we have a president who is doing everything he can to change the history and heritage of this nation,” Sekulow wrote in response to the administration’s move. “His vision and actions put at risk the Judeo-Christian values that have been the cornerstone of our republic.”⁷⁸