Investigations Religion

Not the ‘Illuminati’: How Fundamentalist Christians Are Infiltrating State and Federal Government

Sofia Resnick & Sharona Coutts

Welcome to the world of the Blackstone Legal Fellowship, an annual program established in 2000 by the Alliance Defending Freedom, an Arizona-based nonprofit that is swiftly emerging as a major behind-the-scenes player in many of the nation’s most controversial legal cases involving reproductive rights, sexual justice, and a vast range of other moral and social disputes.

Imagine that a little-known but increasingly powerful group of ideologues had hatched a plan to transform the United States into a Christian theocracy harkening back to the Dark Ages of Europe, a time when society was governed by the laws and officials of the Catholic Church.

Suppose further that this plan had a scary simple strategy: Recruit bright, young law students; put them through an intensive indoctrination program; place them in plum internships across the country; and watch as they swim upstream until they reach the top of the legal system, where they can create, enforce, and interpret laws according to a legal philosophy infused with fundamentalist Christian theology.

Welcome to the world of the Blackstone Legal Fellowship, an annual program established in 2000 by the Alliance Defending Freedom, an Arizona-based nonprofit that is swiftly emerging as a major behind-the-scenes player in many of the nation’s most controversial legal cases involving reproductive rights, sexual justice, and a vast range of other moral and social disputes.

“[T]he Blackstone Fellowship inspires a distinctly Christian worldview in every area of law, and particularly in the areas of public policy and religious liberty,” states the Alliance’s public tax filing. “With this ongoing program, it’s [the Alliance’s] goal to train a new generation of lawyers who will rise to positions of influence and leadership as legal scholars, litigators, judges—perhaps even Supreme Court Justices—who will work to ensure that justice is carried out in America’s courtrooms.”

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While participants hail from various denominations, they all commit to using their legal careers to “reorder society” according to a “christendomic” worldview, in which there is no separation between church and state.

“The Blackstone Legal Fellowship renewed my conviction that working for cultural change is not polishing brass on a sinking ship,” wrote Alana Hake on the Blackstone website. “Victories in the area of pro-life, religious liberty, and family values not only have the potential to preserve individuals’ lives and enable them to hear of salvation, but also to glorify God as society is reordered bit by bit according to His design.”

That means no abortion rights, no marriage equality, and a view of the First Amendment so radical and expansive that merely asserting a religious objection to state or federal laws—be they health insurance laws, or anti-discrimination statutes—would permit individuals to be exempt.

Blackstone Fellows have yet to make it to the U.S. Supreme Court, but based on the progress of the 1,351 alumni so far, the plan appears to be succeeding.

Blackstone alumni have risen to positions of influence in state and federal courts, federal government agencies, and congressional committees and offices, as well as positions at the United Nations and other intergovernmental agencies, a review of public documents, online profiles, and public records requests by Rewire shows.

In Missouri, a former Blackstone Fellow, Kevin Corlew, is running for the state’s 14th congressional district in this year’s elections. Another, Bradley Cowan, is the chief of the administrative law division at the 101st Airborne Division at Fort Campbell, Kentucky, according to his profile on LinkedIn. And based on our review of public records, the offices of attorneys and solicitors general in at least eight states—Alabama, Arizona, Georgia, Indiana, Michigan, Oklahoma, Texas, and Virginia—have hosted Blackstones as interns, jobs in which fellows help draft memos and pleadings for the most powerful lawmakers in their states and, more importantly, forge the contacts that will propel them to their own positions of power.

Advocates for the separation of church and state told Rewire that placing Blackstones in secular positions with the power to write, enforce, and apply laws was worrisome, because “any attempt to merge church and state is dangerous because it leads us down the path to theocracy.”

“They [members of the Alliance] don’t want there to be any legal abortion because they say that violates the Bible. They don’t want gays and lesbians to have rights because they think that violates their interpretation of the Bible. … They want our public institutions, including our school system, to be saturated with their religious beliefs,” said Rob Boston, communications director for Americans United for the Separation of Church and State, who researched the Alliance Defending Freedom for his recently published book. “When you add all that up, that, to me, looks like a church-state union. It looks like a Middle Ages nation with modern-day technology. And that scares me.”

Not the “Illuminati”

Since 1994, the Alliance Defending Freedom has been building a network of lawyers in public and private practice, “to keep the door open for the spread of the Gospel by transforming the legal system,” according to its website.

Today, the Alliance has more than $40 million in assets, according to its most recent auditor’s report, and is becoming an increasing force in the conservative legal arena.

Through legal actions and its various legal training programs, the nonprofit focuses on fighting for the criminalization of abortion; against the rights of LGBT people; for so-called religious liberty (which often comes in the form of defending clients who wish to discriminate against gay people based on their religious beliefs); and for organized Christian prayer in government or public-school settings, such as its most recent victory—last week’s Supreme Court ruling upholding legislative prayer in Town of Greece v. Galloway, in which the Alliance represented the plaintiffs.

The group also runs a legal academy, which gives practicing attorneys free training in defending cases involving same-sex marriage, abortion, and church/state issues. In return, participants must provide 450 hours of “pro bono/dedicated legal work on behalf of the Body of Christ.”

While these are the public stances of the Alliance, as we reported, the group has also played a growing and crucial behind-the-scenes role in sculpting and coordinating briefs from state attorneys general in the Hobby Lobby case that was argued in the U.S. Supreme Court in March.

And when it comes to the Blackstone Fellowship, the group is decidedly secretive.

In answers provided to Rewire, the Alliance’s spokesperson, Greg Scott, said that there have been 1,351 Blackstone Fellows to date, with 154 in this year’s class. He said that about a third of applicants were accepted and that the Alliance “hopes all students who go through Blackstone establish lifelong friendships and achieve lifetime success at every level in every area of the legal profession.”

But that is where the transparency stopped.

The Alliance does not appear to publicize the relationship between the Blackstone Legal Fellowship and state attorneys general, and Scott told us that “recruiting efforts rely primarily on word-of-mouth referrals through Blackstone Fellows who have enjoyed their experience and encourage others to apply.”

Scott declined to break down the demographics of the Blackstone alumni, saying only that “women and men of many races and ethnicities have been accepted into Blackstone.”

“We don’t share specific names, demographic information, or detailed personal information of students and faculty without express permission,” he said.

That position appears to be in keeping with the Alliance’s secrecy surrounding the Blackstone Fellowship.

During a 2012 radio interview, Jordan Lorence, senior counsel at the Alliance, appeared to acknowledge that there are some “pretty high-level people that participate” in Blackstone, but declined to name them. He then reassured the host, Tom Brown, that there was no clandestine plot at work.

“There’s not some hidden conspiracy or something like that going on here,” Lorence said. “There’s no dark Illuminati or something like that.”

Despite the high degree of secrecy, using public records requests, LinkedIn, and other online resources, Rewire was able to locate more than 130 Blackstone alumni, from the 2001 cohort until present. Our research indicates that many of these individuals have clerked for multiple state judges, federal judges, state attorneys general, and are in the midst of working their way upwards in the echelons of government.

While there does appear to be a fair gender balance amongst known Blackstone alumni, of the ones we were able to identify, they are overwhelmingly white and, of course, exclusively Christian.

That is in keeping with the Blackstone Legal Fellowship’s website, which says that fellows are selected based on their “demonstrated Christian commitment, motivation to engage popular legal culture, leadership potential in a legal context, evidence of oral and written communication skills, and academic achievement.”

Throughout the Blackstone Legal Fellowship website, in tax forms, on YouTube videos, and in radio interviews, the Alliance Defending Freedom has described the mission of the fellowship program to indoctrinate law students with a specific worldview.

“One of the greatest blessings of my life as leader in the Alliance Defense Fund ministry is the Blackstone Legal Fellowship,” said Alan Sears, the Alliance’s president, CEO, and general counsel, in a video published to YouTube on January 14, 2010. “This is the time when we see the brightest and best law students in America, who love Jesus, come together for nine weeks to learn how to serve Him effectively, how to integrate their faith and the law.”

Indeed, part of the nine-week program includes a rigorous reading guide that lists tomes by scholars widely considered to hold radical religious views—a reality openly acknowledged by the Alliance, which warns that:

Some materials may even contain assertions that may be construed (or misconstrued) to be unnecessarily sectarian, or even offensive to one’s particular theological or ecclesiastical tradition. No offense and certainly, no proselytizing, is intended. Rather, Alliance Defending Freedom seeks to recover the robust Christendomic theology of the 3rd, 4th, and 5th centuries.

The list includes Gary DeMar, Andrew P. Sandlin, and the late Dr. D. James Kennedy and Greg L. Bahnsen, advocates and former leaders of the once-resurgent and controversial Christian Reconstructionism movement, a fundamentalist Calvinist movement that advocates for a theocratic national government combined with libertarian economic principles.

DeMar, who runs The American Vision, a “Biblical Worldview Ministry,” has a history of making extreme comments in his writings and on his radio program, the Gary DeMar Show. After Hillary Clinton and Sen. Rob Portman (R-OH) expressed their support for same-sex marriage last year (Portman’s son had recently come out of the closet), DeMar compared being gay to being a pedophile, murderer, and slave owner, reported Right Wing Watch.

“Would Senator Rob Portman throw his support behind pedophilia if he had learned that his son was a pedophile?” DeMar blogged. “Would he support adultery if his son was an adulterer? Would he support slavery if he found out that one of his relatives was a slave owner and argued persuasively that owning slaves was legitimate? Would the Senator Rob Portman support his son if he learned that he was selling drugs to children? Would he support contract killing if he learned that his son was a contract killer for the mob? Senator Rob Portman’s son has made a bad moral choice. There is no need to compound that bad moral choice by capitulating to it and softening the moral barriers for young men and women who are struggling with their sexuality and helping to pass laws that will affect millions of people.”

And, of course, there’s Sir William Blackstone himself, an 18th century English judge and Oxford University law professor, whose Commentaries on the Laws of England laid the basis of the idea of “natural law”—considered to be God’s law—and who is credited with laying the foundation for university legal education in England and North America.

Greg Scott said in an email that the Alliance Defending Freedom’s employees do not necessarily fit the mold of the “right-wing fundamentalist” Christian. He said that the Alliance’s staff members practice a wide range of Christian denominations—“Catholics, Baptists, Presbyterians, Anglicans, Lutherans, Nazarene, and more.” He also noted that some employees oppose the death penalty and support environmental causes. However, these issues are not generally represented in the organization’s legal practice.

Rob Boston, of Americans United for the Separation of Church and State, told Rewire that he was surprised when he first came across the reference to ancient Christendomic theology on Blackstone’s website.

“It just struck me as so incredible that anyone would just say that openly, that that was their goal for a model society,” he said.

The Alliance Defending Freedom covers the bulk of Blackstone Fellows’ expenses, including airfare, lodging, and “most meals” for two out of the program’s three phases that take place in Phoenix, and usually students’ lodging during the internship phase. Fellows can also apply for a $6,300 scholarship.

Employees in State AG Offices Seek to “Help” Extreme Christian Agenda

Earlier this year, Rewire received a slate of internal emails from the West Virginia Office of the Attorney General, in response to a public records request.

One piece of correspondence that is particularly curious is a set of emails from Julie Marie Blake—who was then a law clerk with the solicitor general—from the fall of 2013. The emails comprise a series of correspondence between Blake and multiple Alliance Defending Freedom attorneys.

Blake explained that she had recently moved to West Virginia and had taken up her new post, and asked for prayers from the Alliance officials that she would pass her state bar exam.

Blake then proceeded to ask the Alliance attorneys whether the West Virginia solicitor general could “help” the Alliance.

“Please let me know if I can ever do anything to help your efforts – the SG [solicitor general] is always looking for new suits to bring or amicus ideas,” Blake emailed Alliance Defending Freedom senior counsel Gregory S. Baylor on September 19, 2013.

In the same email, she mentioned the Blackstone Fellowship program.

“I’ve been speaking with Colene—she is going to try to place a Blackstone here with us next summer,” Blake wrote, presumably referring to Colene Lewis, Blackstone’s director of alumni.

Neither Blake nor the Alliance would confirm with us whether or not she previously worked or interned with the Alliance or whether she participated in the Blackstone Legal Fellowship. A spokesperson for the attorney general’s office declined to comment. However, Blake’s familiarity with many of the directors and legal counsel at the Alliance and Blackstone suggests that could be the case.

And that would be problematic, according to Greg Lipper, a senior litigation counsel at Americans United for Separation of Church and State, which often appears on opposing sides of the same cases as the Alliance Defending Freedom.

“I think that does raise especially significant concern, both the apparent recruiting of lawyers on the basis of their religious beliefs or their religious training on the one hand and the fact that she’s so eager to have [the Alliance] sort of supply its increasingly retrograde ideas as a basis for government policy,” Lipper said in an interview.

In response, the Alliance’s spokesperson said he was “not aware of any constitutional principle prohibiting students from a particular ideological, philosophical, or religious background from applying for governmental internships. In fact, such a prohibition could very well violate constitutional and federal law provisions that protect against discrimination.”

Lipper and other critics emphasized that their concerns dealt not with the idea of Christian lawyers interning or working in government but that such lawyers would serve the government with a particular religious-focused agenda.

West Virginia is far from the only state that has accepted interns from the Alliance Defending Freedom.

Our public records requests disclosed that Blackstone Fellows have worked in at least eight other states: Alabama, Arizona, Georgia, Indiana, Michigan, Oklahoma, Texas, and Virginia.

In early December 2012, Sumi Thomas, the director of recruitment for the Blackstone Legal Fellowship, reached out to the Oklahoma Office of the Attorney General, emailing a contact given to her by Aaron Stewart, a Blackstone Fellow who had been interning with the AG’s office earlier that year. In her email Thomas explained that, at that time, Blackstone interns were also placed in attorneys general offices in Alabama, Indiana, Michigan, Texas, and Virginia. Rewire has also found that the Alliance’s legal interns have served in attorneys general offices in Arizona and Georgia.

In its description of the program emailed to the Oklahoma AG’s office, the Alliance refers to the office as an “allied organization.”

Stewart was eventually hired to work for the AG’s office full time and currently serves as an assistant attorney general, according to his LinkedIn profile and emails between Stewart and a Blackstone recruiter obtained by Rewire through public records requests.

The following fall, the Alliance’s Thomas again reached out to the Oklahoma attorney general’s office about hiring Blackstone interns.

On September 20, 2013, Oklahoma’s first assistant attorney general, Tom Bates, responded positively to Thomas’ inquiry.

“We were extremely pleased with Jared and hope he will consider joining us as an AAG [assistant attorney general] upon graduation,” wrote Bates, referring to Jared Haines, a Blackstone Fellow who served in the AG’s office in the summer of 2013. “So, we would definitely welcome another intern next summer.”

Haines’ LinkedIn profile currently lists him as a JD candidate at the University of Chicago Law School.

In the same email thread, Bates explained the general scope of the work given to legal interns, which included assisting with cases currently in litigation.

“This interns [sic] works directly with the AG, First Assistant, Chief of Staff, and Solicitor General,” Bates said. “Work includes legal research and drafting of memos, legal documents, and opinions on issues of importance to the executive staff. This intern will also assist the First Assistant and Solicitor General with cases in litigation.”

The Oklahoma Office of the Attorney General did not respond to multiple requests for comment regarding its relationship with the Alliance Defending Freedom and the Blackstone Legal Fellowship.

Brady Henderson, the legal director of the American Civil Liberties Union of Oklahoma, said in an interview that Blackstone’s religious mission—for fellows to integrate their faith with the law—presents a potential conflict of interest when they’re put to work for government.

“These interns, in theory, if they’re interning for the state, they’re not supposed to be doing something with a religious purpose,” Henderson said. “In other words, they’re not there to proselytize. They’re also not there to create a certain religious outcome. And yet their fellowship or internship may have that exact purpose. So in a sense, what it creates is a conflict of interest.”

Representatives of other state attorneys general told Rewire they accept Blackstone fellows but do not give them preferential treatment.

Indiana’s attorney general’s office has accepted five Blackstone Fellows since 2012, according to public information officer Erin Reece, who noted that the state AG’s office employs 60 interns annually. The fifth Blackstone Fellow is scheduled to serve Indiana Attorney General Greg Zoeller this summer.

In an email sent to representatives of the Indiana AG’s office in September 2013, upon thanking them for accepting three Blackstone Fellows in 2013, the Alliance’s Sumi Thomas asked the AG’s solicitor general office to consider accepting a Blackstone Fellow for the summer of 2014. “If the Solicitor General’s Office is willing to accept interns from the Blackstone Legal Fellowship for the summer of 2014, please let me know and I will call you to discuss details via phone,” Thomas wrote.

“All interns are hired based on their academic and legal qualifications,” Reece said in an email. “Our recruitment process includes attending diversity job fairs, conducting on-campus interviews at approximately eight law schools and receiving resumes from various clinical programs at law schools and legal fellowships such as the Blackstone and Steiger fellowships, among others. The recruitment and consideration process is similar for all schools, legal fellowships and entities with which we have a relationship.”

Reece said her office “follows the proper legal parameters of separation of church and state” in response to our question about Blackstone’s Christian mission, explaining that her office is prohibited from asking job or internship applicants about their religious views or affiliations. She also emphasized that interns are given “basic, entry-level legal work.”

Georgia’s attorney general’s office accepted one Blackstone Fellow last summer and will possibly have another Blackstone Fellow this summer, said Lauren Kane, the office’s communications director, who said the office primarily accepts applicants from law schools. “We do not have any sort of formal relationship with Blackstone by which we ‘host’ their participants, but will consider Blackstone applicants when they apply (and we do require them to go through the application process),” Kane said in an email.

Several state AG’s offices responding to Rewire’s inquiry said they had never hired Blackstone interns, including offices in Idaho, Maryland, Oregon, and Rhode Island. AG offices in Connecticut and Wisconsin said they had never hired Blackstone Fellows and have no plans to. Many other states failed to reply to our requests in time for deadline.

“Heroes” or “Bigots”

In keeping with their religious and radical political views, Blackstone Fellows have helped shape many of the nation’s most famous recent lawsuits.

In the summer of 2012, two Blackstone Fellows—Matt Mellema and Jonathan Lee —interned for a conservative think tank and were at the time writing briefs and researching for cases involving constitutional challenges to the Defense of Marriage Act (DOMA) and California’s ban on same-sex marriage, respectively, both of which were heard by the Supreme Court in 2013.

The Alliance Defending Freedom’s side would go on to lose these cases, but the two Blackstone Fellows expressed their delight at being involved in such high-stakes litigation.

“I didn’t think coming into law school that at this point I would be working on a case that everybody I know has heard of,” Mellema—currently a law student at Yale University Law School and a sometimes contributor to Slate—told sometimes Blackstone lecturer Hugh Hewitt on his Hugh Hewitt radio show in July 2012. “I’m either a hero or a bigot, depending on who you are.”

During the broadcast, Lee, then earning his law degree at the New York University School of Law, told Hewitt it was hard to learn the “Christian point of view” of legal concepts outside of the Blackstone program.

Of course, even when Blackstones find themselves on the losing side of a case, they are nevertheless building the personal and professional networks that could help propel their careers.

And that goal appears to be working. While the Alliance declined to name any alumni, the organization claims that 356 fellows had acted as clerks for state and federal judges as of 2013.

Through our use of public records and publicly available information, Rewire has been able to identify 135 Blackstone alumni, representing around 10 percent of the total alumni pool. It’s an unscientific sample, but our results give some insight into the program’s success in having its graduates fan out throughout U.S. government posts. (Where we have been able to find the year in which an individual participated in the Blackstone program, we have included that information in the following summary.)

Among our other findings:

  • Rewire’s research identified more than 40 individuals who have clerked for state and federal judges. Many of these people held more than one clerkship, and between them, they have filled nearly 60 of what are prestigious roles. See a full list in Rewire Data, our new interactive search tool.
  • Blackstones have worked in at least 26 roles in the federal government, including:
    • Carissa Mulder, 2007, special assistant/counsel at U.S. Commission on Civil Rights;
    • Brian Barnes, 2012, attorney advisor, Social Security Administration and formerly Coast Guard Court of Criminal Appeals;
    • S L Whitesell, 2012, law clerk, U.S. Senate Judiciary Committee, staff of Sen. John Cornyn (R-TX) (currently, Whitesell is clerking for the Texas Office of the Attorney General);
    • Clayton Collins, 2012, legal extern on Judiciary Committee Legislation for Congressman Trent Franks (R-AZ.);
    • Esther Slater McDonald, counsel to the associate attorney general, U.S. Department of Justice.
  • Blackstones have filled at least 11 roles in state agencies, including in the Sacramento Public Defender’s Office, the Government and Consumer Frauds Bureau in Nassau County, New York; policy and program analyst at the huge teachers’ pension system, CalSTRS, in Sacramento, California; and in other roles everywhere from Tennessee to Virginia.
  • They have filled roles in the military:
    • Michael Berry, 2003, attorney with the U.S. Marine Corps; appellate defense attorney, 2009-2013; invited to serve as an adjunct professor of law at the United States Naval Academy; deployed to Afghanistan in 2008;
    • Peter Cairns, 2010, Defense in Support of Civilian Authorities (DSCA) Action Officer at National Guard Bureau;
    • Megan Jaye, 2007, Assistant Counsel for Legislation, Fiscal and General Law at U.S. Army Corps of Engineers.
  • And they have held positions at the United Nations and other intergovernmental organizations:
    • David Allen, 2013, House of Commons research assistant in London
    • Lisa Giunta, 2009, judicial law clerk, United States District Court for the Eastern District of New York and formerly United Nations extern, International Development Law Organization, permanent observer to the UN;
    • Tania Soris, 2011, formerly Commonwealth Lawyers Association.

And one, Kevin Corlew, a former Nevada Supreme Court clerk, is now running for Congress in Missouri’s 14th district.

Corlew did not reply to Rewire’s emails or voicemails. However, Corlew has made known his position on at least one of the Alliance’s hot-button issues.

“Life at all stages must be respected,” reads a statement on his website. “I supported the Missouri Legislature in passing the late-term, post-viability abortion ban in 2011.”

Corlew is far from the only Blackstone to have advanced both his career and his views.

G. David Mathues completed the Blackstone Fellowship in 2005, according to his LinkedIn profile. He went on to serve in other high-influence positions, including a year as judicial clerk for Chief Judge Danny J. Boggs of the Sixth Circuit.

In 2009, Mathues published an article in Engage Magazine, in which he argued that courts should take a more expansive view of the U.S. Constitution’s “ministerial exception” which gives religious institutions “broad freedom in selecting their leaders.”

Mathues advocated widening the definition of who is a “minister” so that it included employees such as teachers at religious schools. And of course, in this context, “selecting” leaders is code for “firing” them due to religious issues.

Today, Mathues is an assistant state attorney in Cook County, Illinois. He did not return Rewire’s call for comment.

Perhaps the most significant of the Blackstone Fellows Rewire was able to locate was Michael Bowman, who is now senior counsel at the Alliance Defending Freedom.

Bowman completed the Blackstone Fellowship in 2001 and “clerked for several federal judges, including The Honorable Samuel A. Alito, Jr., at the U.S. Court of Appeals for the Third Circuit,” according to his Alliance biography.

Alito, of course, has since risen to become a justice of the U.S. Supreme Court.

The potential potency of these connections was apparent earlier this month when the Supreme Court issued its decision in Town of Greece v. Galloway, in which, as we noted earlier, the Alliance represented the winning party—the town.

Alito voted with the majority to uphold the town’s practice of saying a prayer before official meetings—a decision that has widely been interpreted as crumbling the separation between church and state.

At issue in the case was not that the town was holding prayers before town meetings, but that the prayers—delivered by mostly Christian clergy—were largely sectarian; thus it was perceived by the plaintiffs that the government was officially aligning with a particular faith: Christianity.

Alito also wrote a concurring opinion—in which Justice Antonin Scalia joined him—that fleshed out his views that the U.S. Constitution’s separation of church and state does not prevent governments from incorporating religious prayer into their government meetings, and ridiculed the idea that towns could “prescreen” those prayers.

As any lawyer knows, part of the value of serving as a clerk for a judge is the formation of a relationship of trust and familiarity, so that when you appear as a lawyer in that judge’s courtroom, your arguments are more likely to be given weight.

While the Alliance has yet to see one of its Blackstone alumni actually reach the Supreme Court, when it comes to Bowman and Alito, they have arguably achieved something very close to that.

“They’re not doing anything illegal,” said Rob Boston. “They’re training lawyers and urging them to go into court and push the law in a more conservative direction. If the American people are alarmed about that, they have to respond in ways to push back. But this is all part of a larger plan that the religious right has been building up for a long time.”

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

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The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.

Investigations Media

Exclusive: Law Enforcement Calls Daleiden ‘Uncooperative’; Documents Reveal More CMP Lies

Sharona Coutts

“David Daleiden contacted our agency May 21st of 2015 and filed a criminal report against StemExpress here in Placerville,” a spokesperson at the El Dorado County Sheriff’s Office told Rewire. “All he was, was a reporting party. He didn’t consult with us and he didn’t cooperate with us. In fact, I’d characterize him as uncooperative.”

See more of our coverage on the anti-choice front group the Center for Medical Progress here.

In late May of last year, David Daleiden was reaching the culmination of a project he had been working on for three years. Over that time, the anti-choice activist had been living a lie of his own creation. He had set up a bogus company, complete with a fake website, and corporate officers whose names were in fact aliases.

He had enlisted half a dozen other anti-choice activists to help him, most notably Sandra Susan Merritt, a 63-year-old resident of San Jose, California, who—using the alias Susan Tennenbaum—posed as the CEO of the bogus company, Biomax Procurement Services.

Together, Daleiden—going by Robert Daoud Sarkis—and Merritt hopscotched the country, traveling from California to Colorado, Florida, Maryland, Texas, and Washington, D.C. They attended conferences for abortion providers and parlayed those attendances—and the trust and credibility they engendered—into visits to abortion clinics, where the pair secretly recorded meetings and site visits and tried to goad their targets into making statements that could be twisted to look like evidence of illegal activities.

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By May 21, Daleiden was nearly ready to bring his elaborate scheme to a head. The next night, he and “Tennenbaum” were scheduled to have dinner with executives from StemExpress, a tissue procurement company based in Northern California. As he had done for virtually every encounter as a Biomax official, Daleiden planned to secretly video record the meeting and then to release doctored versions of that footage to the public.

But this time, Daleiden did something different. On the eve of this particular meeting, he delivered a bundle of so-called evidence of alleged wrongdoing by StemExpress to the El Dorado County Sheriff’s Office, claiming that the company had engaged in a range of crimes including trafficking in human organs and human tissues, and “homicide of babies born alive during the abortion procedure,” according to legal documents obtained by Rewire.

In a deposition taken late last year, Daleiden would claim—in sworn testimony, under penalty of perjury—that the purpose of his meeting with the El Dorado County Sheriff’s Office was “to coordinate [his] investigations going forward on how to bring StemExpress criminal conduct to light.”

Following his lawyer’s advice during that deposition, Daleiden refused to say more about that meeting, or the other authorities he had supposedly “coordinated” with in his spying campaign, but he did heavily imply that the El Dorado County Sheriff’s Office was just one of the “governmental authorities” that he met with “contemporaneously with the actual undercover operation.”

The notion that law enforcement authorities were actively colluding with Daleiden and his associates in conduct that has resulted in criminal indictments is curious, to say the least.

It’s just one of the loose ends that surrounds Daleiden’s project, a year after he released the first smear video against Planned Parenthood (the organization and some of its individual employees), abortion providers in general, and companies that assist in the procurement of tissue for medical and scientific research. 

Despite the dozen-odd state and federal investigations his project sparked, the multiple civil and criminal cases it sent ricocheting through state and federal courts, and the untold damage it caused to companies, organizations, and individuals targeted by his group, many questions remain about who funded Daleiden, which politicians supported him, and who else was involved in his operation—including the identities of the other operatives that posed as Biomax employees. 

Using freshly obtained legal documents, Rewire has taken a look back at some of the most mysterious aspects of the Daleiden affair, comparing what we have learned since the videos were first released with what remains unknown or unclear.

What emerge are some disturbing claims that have yet to be fully resolved, not least of which is the extent to which members of Congress were aware of—or involved in—planning or executing Daleiden’s campaign.

El Dorado Sheriff’s Office: Daleiden Was “Uncooperative”

When Daleiden met with the El Dorado County Sheriff’s Office, he handed over a report he had prepared containing his “best kind of summary or list of the different California and federal laws that are implicated in the actions between StemExpress and Planned Parenthood,” along with “a few representative examples of the evidence that CMP gathered that indicates probable cause for violations of those laws,” according to a transcript of the deposition he gave on December 30, 2015.

When Rewire contacted the El Dorado County Sheriff’s Office about this anecdote, its spokesperson, Jim Byers, said he clearly remembered Daleiden’s visit, but disputed Daleiden’s characterization that his office was “coordinating” with the spying project.

“David Daleiden contacted our agency May 21st of 2015 and filed a criminal report against StemExpress here in Placerville,” Byers said. “All he was, was a reporting party. He didn’t consult with us and he didn’t cooperate with us. In fact, I’d characterize him as uncooperative.”

Byers said that it was unclear to his colleagues what exactly Daleiden wanted them to do with the information he had provided. Flipping through the report while speaking with Rewire, Byers explained: “It just says that he had been conducting a multiyear investigation and was going to go public with it and wanted to make this report to us, but when we asked him to hold off so we could investigate his claims, he went ahead and went public anyway.”

The reason the sheriff’s office asked Daleiden not to go public was because doing so would hamper any investigation they might do into the allegations Daleiden had made. “That’s very common, for us to ask something like that, because then the people we need to talk to aren’t going to talk to us,” Byers said. “He declined to follow our request.”

Regardless, the sheriff’s office spent months investigating Daleiden’s claims; they found no evidence of illegal conduct by StemExpress. As is routine, the sheriff’s office then referred the matter to the El Dorado District Attorney for further review. Dave Stevenson, the spokesperson for the district attorney’s office, told Rewire he was unable to comment on the matter as the investigation is ongoing.

If it seems odd that Daleiden would make a report to law enforcementbut not give them any time to actually investigate the allegations he’d made and actually jeopardize those investigations—that might be because the act of making the report itself was part of Daleiden’s legal strategy.

Daleiden was consulting with the Life Legal Defense Foundation for at least two years prior to releasing his videos, according to published reports. It’s therefore likely that he knew that California creates criminal and civil penalties for people who intentionally make a secret recording of a person in a private meeting without their consent. And indeed, that’s one of the key charges within the lawsuits that have been filed against Daleiden and his co-defendants.

It’s also likely that Daleiden and his advisers knew that there is an exception to that law for people who make a secret recording “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person.”

Throughout the deposition he made on December 30, Daleiden maintained that he believed he was exposing criminal conduct as a justification for his spying activities. Merritt made similar claims in the deposition she gave in the same case, on December 29. In particular, both insist they believed they were recording evidence of murder.

It appears plausible that Daleiden made his report not because he thought the county sheriff’s office would really investigate, but because he anticipated that once he published the illegally taped videos, he would be charged with a crime, and he was simply laying the groundwork to be able to show a court later on that he had filed the criminal report as evidence of his belief that he had uncovered a crime.

Daleiden did not reply to Rewire‘s questions about whether this was in fact his legal strategy. Catherine Short, his lawyer at Life Legal Defense Foundation, did not immediately respond to our emails seeking comment. 

However, for that defense to work, a person must show they had an honest and reasonable belief that they were uncovering a crime. And when it came to the specifics of the supposed crimes they were uncovering, both depositions are striking for the extent to which Daleiden and Merritt refused or were unable to give clear definitions of those offenses.

For instance, both Daleiden and Merritt were reluctant to answer questions about who, if anyone, they believed had actually committed the murder they were supposedly reporting, despite that being one of their key allegations. Both Daleiden and Merritt made vague statements about “doctors” being responsible, or about the “abortion industry” writ large, but when it came to the specifics of how anyone at StemExpress could have been guilty of murder, their answers were evasive. 

In one chilling passage, Daleiden gave stammering and elusive answers to questioning over whether he believed that one of the people who assisted him in his smear campaign—a former StemExpress employee named Holly O’Donnell—had provided him with evidence that she had herself committed murder. Discussing O’Donnell’s account of one incident she related where she claimed to have procured fetal brain tissue, Daleiden initially said he did not believe O’Donnell had murdered that fetus. But under questioning about the overall processes involved in preparing tissue samples, Daleiden’s answers became confused.

After Daleiden noted that O’Donnell went with him to his first meeting with El Dorado law enforcement, the StemExpress lawyer asked: “Did you ever tell Holly that you thought she should be investigated by El Dorado County for her conduct?”

Daleiden never definitely said “no,” but rather, “I think that, you know, the testimony of people who worked at StemExpress is—you know, is relevant to that investigation but I think the ultimate culpability is with the—with the business entity.” He also said he would “put culpability on the doc,” but then he said:

I’m not sure what Holly’s obligations were there. But, you know, but this is—this is highly speculative and, like I said, this is why I think this is really serious information that I—and really serious allegations and actions that—that needed to be brought to law enforcement, which is what I did.

Ultimately, Daleiden’s lawyer summarized his client’s position on O’Donnell’s potential guilt thus: “He explained as best he could that it would be the doctor or it would be [a different StemExpress employee] and it’s ambiguous as to Holly’s role at that point.”

Merritt appears to go further. Towards the end of her deposition, she was asked to clarify whether she believed that any StemExpress employees had committed murder. She described what she believed O’Donnell had done, and then said, “Yes, I believe that to be murder.”

One can only wonder whether O’Donnell was aware that Daleiden considered the possibility—or perhaps, had not considered the possibility—that he was giving law enforcement authorities evidence that she had committed murder, when she accompanied Daleiden to their offices and helped him with his “investigation.”

Rewire’s attempts to contact O’Donnell for her comment on that question were unsuccessful.

Further Evidence That Daleiden and His Associates Are Not Reporters

The very fact that Daleiden claimed—albeit incorrectly—to have been “coordinating” with law enforcement further undermines his dubious assertion that he is an investigative reporter. Reporters would seldom coordinate their efforts with law enforcement, except for rare instances where, by way of example, they might inform law enforcement if they had learned of an imminent risk to a person’s life or to national security.

The deposition also revealed Daleiden’s investigative methods to be far from objective, and in some respects, amateurish.

Under questioning from StemExpress’ attorney, Daleiden explained that much of his knowledge of how tissue or organ transplantation worked was based on “research,” which comprised Googling for journal articles, which he admitted to cherry-picking. He also based most of his understanding of the equipment used in heart transplants on watching videos that the equipment manufacturer had posted on its website and YouTube channel.

He relied disproportionately on the expertise of a scientist whose otherwise impressive credentials are marred by her support for widely debunked theories that vaccines are linked to autism. He used this patchwork knowledge to cobble together flawed theories about how fetal tissue is acquired, and the circumstances in which it could be used for research.

He even made assumptions about what medical professionals meant by the words “case” or “specimen”—he said he believed the people he filmed were referring to a fetus, when in fact those words can also refer to a particular organ or piece of tissue. He said that he didn’t give the subjects of his secret video recordings the opportunity to clarify what they meant by these terms because he didn’t want to blow his cover—or as he put it, he didn’t want to get greedy for information and “get lost in the Cave of Wonders like Aladdin and go like looking for all the other treasures.” He just ran with his own assumptions, something no professional reporter would do. 

And he acknowledged that the reason he embarked on his project was because he had formed an unshakable belief that abortion providers engaged in unlawful trafficking of human organs and tissues, instead of remaining open-minded about the facts and attempting to report against his own biases, as a real reporter would do. None of the multiple investigations into Planned Parenthood have found any evidence that substantiate Daleiden’s allegations. Indeed, Daleiden manipulated his videos to omit passages where the targets of his campaign explicitly told him that profiting from human tissues was unethical and illegal.

Merritt’s deposition is even more astonishing in terms of just how flimsy her claims to be a reporter turn out to be.

Like Daleiden, Merritt is trying to assert that she is a reporter and therefore protected by the First Amendment.

A lawyer for StemExpress asked Merritt, “Do you consider yourself a journalist?”

Merritt answered, “Yes.”

The lawyer then asked, “Have you ever published any articles?”

Merritt answered, “I have not.”

She said she didn’t do any original research. She didn’t do any writing. She didn’t edit. Merritt specifically told the lawyer for StemExpress that her sole role in the ruse orchestrated by Daleiden was to wear a video recorder while playing the part of Susan Tennenbaum, which may explain why Daleiden has frequently referred to his associates as “actors.”

Wearing a camera does not a reporter make.

Which Members of Congress Knew About the Planned Smear Campaign, What Did They Know, and When? 

An especially curious aspect of this saga is how some members of Congress had seen at least one of the smear videos before Daleiden released them to the public. Rep. Trent Franks (R-AZ) and Rep. Tim Murphy (R-PA) both told Roll Call that they had seen the first video about a month before it was published. How and why they came to see the video, and what their role was in helping plan the political response to the tapes, if any, remains unclear.

But the following exchange during Daleiden’s deposition provided a tantalizing tidbit about that mystery.

In his December 30 deposition, Daleiden declined to answer the following questions from StemExpress’ lawyer:

When is the first time you spoke with anybody from, or had any contact with anybody from Congress?

And:

When is the first time you provided any materials to anybody that is a member of Congress?

Daleiden responded: “I don’t think the answer to that question is a matter of public record so I’m going to follow the advice of my counsel.” He declined to respond.

Ostensibly, the reason Daleiden declined is that he believed it was outside the scope of that particular deposition, which was confined to some narrow legal arguments. However, there is an implication in the December 30 deposition that those questions were within the scope of a related case, along with questions about who funded Daleiden’s efforts, and information about the specific role of his board member, the anti-choice extremist and head of Operation Rescue, Troy Newman.

A year has passed since the videos were first released, and a lot of time and taxpayer dollars have been spent as a result of Daleiden’s endeavors. But a year is a short time in the life of a lawsuit, and many cases are still wending their way through state and federal courts. As they do, it is possible that we will learn more about these unresolved questions.

Time will tell whether the pattern Daleiden has established will continue: Instead of exposing wrongdoing by others, the only wrongdoing he has thus far managed to record and expose was his own.