Conservative Christians and the Remaking of the Conservative Legal Movement

For the Balkinization symposium in honor of Ken Kersch

Mary Ziegler 

I discovered Ken Kersch’s work because of his important contributions to our understanding of originalism, but as Ken’s work shows, conservative constitutionalism is and was always richer, broader, and much messier than the interpretive methods that are most prominent now. It is to his work that I turn to understand the rise of the contemporary conservative Christian legal advocacy, led by organizations like the Alliance Defending Freedom (ADF), which is reshaping not only the law of everything from abortion to transgender rights but also the very identity of the conservative legal movement.

Ken committed to understanding the intellectual underpinnings of these disparate movements. He grasped, perhaps uniquely, how many intellectual traditions shape the contemporary conservative legal movement. Understanding and identifying these different threads allows us to see how mutable the conservative legal movement truly is, and to anticipate critical doctrinal and interpretive innovations before they develop.

Historians have carefully studied how conservative Protestants and Catholics became part of the Republican base in the 1970s and 1980s. Scholars have studied how these activists overcame their theological differences to forge a potent political coalition. Historians, political scientists, and legal scholars illustrated how conservative Christians contributed to constitutional struggles over abortion, and successfully borrowed from progressive constitutional strategies, from advocating for the freedom of speech to claiming to protect women. Ken’s work beautifully illustrated that the conservative Christian legal movement had a much more ambitious constitutional agenda. Rather than simply crafting effective constitutional arguments, the lawyers who lead the movement planned to change the way conservatives understand the nation’s founding, the way originalism works, and the very nature of our constitutional traditions.

Ken was among the first to write about the constitutional thought in the early conservative Christian legal movement. In the late 1970s and early 1980s, figures like the theologian Francis Schaeffer and the lawyer John W. Whitehead laid out the argument that the framers of the Constitution were Christian and inscribed Christian understandings into its text and early interpretation. While lawyers of the era did not make these arguments in court—even as men like Whitehead successfully launched the first conservative Christian litigation firms—the idea of fusing Christianity and originalism carried significant weight among conservative Christians.

These were the ideas that inspired the founding of Liberty Counsel (1989), the American Center for Law and Justice (1990), and eventually, ADF. ADF first promoted its view of the original meaning of the Constitution as a super funder. Publicly, ADF and its peer organizations highlighted the importance of free speech and religious liberty for conservative Christians—an appeal to pluralism that made significant headway at the Supreme Court. But as significantly, ADF sought to retool legal education to mainstream its ideas, just as law and economics, originalism, textualism and other now-mainstream approaches rooted in the conservative legal movement gained adherents. Uniquely among its peers, ADF set out to construct a conservative Christian legal elite, with alumni on the federal bench, in the academy, and in the nation’s most prestigious law firms. Through the Blackstone Fellowship, founded in 2000, ADF educated generations of talented law students in its approach to the law and the Constitution. Trainings and webinars for affiliated attorneys, a network that grew to thousands of attorneys, did the same for practicing attorneys. ADF International also launched the Areté Academy, an international equivalent of the Blackstone Fellowship, to spread its views among elite lawyers outside the United States. In 2012, ADF officially pivoted from funding litigation to spearheading it.

At the same time, key popularizers worked to spread the same ideas about the Constitution among parents and children. David Barton, the founder of a group called WallBuilders, published a series of best-selling books laying out the idea of a Christian founding; starting in Texas, he worked to reshape public school curricula to accommodate his ideas. Barton, who taught in the Blackstone program, influenced Mike Johnson, the speaker of the House of the Representatives and a former prominent member of ADF. During his time at ADF, Johnson represented the National Council on Bible Curriculum in Public Schools, a group founded by a North Carolina paralegal in 1993 to encourage schools to teach the Bible as a critically important part of the nation’s history. The council boasted that its work had received the endorsement of a conservative rabbi and some prominent conservative Catholic law professors, but the curriculum primarily reflected an interpretation of Scripture that resonated with conservative Protestants—and taught a version of U.S. history that framed the nation and its Constitution as quintessentially Christian.

ADF’s ideas are no longer on the margins of conservative legal advocacy. The organization, which boasted $102 million in revenue in 2023, promoted the Mississippi law in Dobbs v. Jackson Women’s Health Organization and helped the state’s lawyers to defend it before the Supreme Court. Since 2022, ADF has led the fight to limit access to mifepristone, a pill used in more than half of all abortions. It has helped to craft the arguments against what President Trump calls gender ideology, writing model legislation on everything from bathroom access to transgender athletes in high school sports. ADF has long questioned the idea that sex is a suspect classification under the Fourteenth Amendment and has worked to reshape the Court’s sex equality jurisprudence in cases like L.W. v. Skrmetti, which the Court will decide this term. And ADF continues to litigate to change the Court’s understandings of the religion clauses of the First Amendment, not least when it comes to the Establishment Clause. ADF, for example, helped to shepherd another of this term’s blockbusters, Oklahoma Statewide Charter School Board v. Drummond, through the courts. Drummond involves the decision of the state charter school board to approve a Catholic online school called St. Isidore of Seville. ADF has championed the case as a way to demonstrate that “the ‘separation of church and state’ isn’t a constitutional principle.”

What comes through in Ken’s scholarship is a timely reminder to pay attention to the influence of groups like ADF as much as we do the Federalist Society. The conservative legal movement has long been a coalition. Its members sometimes hold vastly different ideas about the Constitution and the law. To fully study conservative constitutionalism requires us to take all these ideas seriously, and to tell the story of how they shape our present moment.

At the time of his passing, Ken was writing the second volume of his magisterial study of conservative constitutionalism, and I had just begun a book on the conservative Christian legal movement that took Ken’s work as its starting point. After mourning the loss of Ken’s friendship, I mourned a second time for this book that I so desperately wanted to be in the world.

I am still grateful that Ken left us with such a tremendous starting point. The study of conservative constitutionalism is more valuable than ever before. Ken understood this. Even when he was in the middle of chemotherapy, he urged me to send him drafts. The work, he said, is really important. He was right.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California, Davis, School of Law. She can be reached at mziegler@ucdavis.edu.