His legal track record is revealing, showing that Johnson can take different positions on constitutional issues depending on who the parties are. For instance, Johnson has been a fervent advocate of First Amendment protections — for Christians. When nonreligious secularists brought a religion-based challenge, he took the other side, defending the government. (Johnson has called secularists “atheists” who pressure government officials to censure God-based viewpoints.)
So while Johnson’s legal career reflects decades of arguing for free speech and free expression of religion, it has consistently been for the same religion — and not evidently in furtherance of an even-handed legal principle that would protect all religions equally (in addition to the right to reject religion altogether). Johnson’s theory, summed up, appears to be what might be dubbed, “the First Amendment for me but not for thee.” As he has described it in his own words, “the founders wanted to protect the church from the encroaching state, not the other way around.”
But only when that church is Christian.
Johnson’s litigation stance mirrors a belief that America was founded as a Christian nation, and that modern Christians are being selectively persecuted by secularist influences in government. He has described the Declaration of Independence — with its references to men “endowed by their Creator with certain unalienable Rights,” “Nature’s God,” and the “firm reliance on the protection of divine Providence” — as a “religious statement of faith.” On a podcast with his wife, Johnson championed expressions of Christianity in the public sphere over secularism, complaining that “the Christian viewpoint is not given equal treatment and equal platform and equal chance,” and that “very often religious viewpoints, specifically Christian viewpoints, are censored and silenced.”
There’s a reason that so many legal disputes about religion in public life center around the First Amendment, and that’s because it contains provisions that are inherently contradictory; the Free Speech and Free Exercise clauses, which apply to individuals in the face of legal restrictions imposed by the government, and the Establishment Clause, which applies to the government when it passes a law or implements a program that has the possibility of entangling the state with a particular religion. The conflict arises when the government takes an action to avoid promoting a particular religion and the individual impacted is religious. Johnson has been involved in numerous such lawsuits on behalf of religious plaintiffs claiming that the government’s nod toward religious neutrality actually infringed on their rights to exercise their religion.
For decades, the Supreme Court has struggled with how to strike the right balance between the separation of church and state and religious entities seeking public money. In 1971, it created the “Lemon test,” which allowed for governmental funding of religious organizations for strictly secular reasons but not to promote, prohibit or foster excessive entanglement of the state in a particular religion. Since then, the court has gradually and increasingly tolerated the use of government funds to subsidize entities with a religious mission so long as they are broadly available to people of all faiths and do not imply state endorsement of one faith over another.
Last year, the court went a step further toward privileging religious groups, issuing two rulings that substantially elevated the Free Exercise Clause over the Establishment Clause and allowed more rights for the exercise of religion in public schools. In the first case, the court held in Carson v. Makin that a Maine law confining taxpayer-funded tuition assistance to nonreligious schools was unconstitutional, and in the second case, Kennedy v. Bremerton School District, that a high school football coach’s right to publicly pray on the field after a game trumped the public school’s prerogative to separate religion from school-sponsored activities. Johnson’s affiliate, Alliance Defending Freedom, filed an amicus brief in Kennedy arguing that “no right is more fundamental to our Constitution than the ability of every citizen to give personal thanks to God for the blessings of His provision.”
By pursuing a legal strategy that treats the Christian faith as under assault in America by the political left (which has infiltrated government), and aggressively defends religious rights for fear that “those freedoms will be taken away” by a secular government, Johnson keeps close company with a number of far-right justices on the U.S. Supreme Court. They include Justice Samuel Alito, who in 2021 delivered a lecture bemoaning the “hostility to religion or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors,” and Justice Amy Coney Barrett, who told Notre Dame law graduates that their legal careers are “but a means to an end” of “building the kingdom of God.”
Johnson’s work on constitutional litigation was done under the organization named Freedom Guard, which he described in a 2015 video interview as “a not-for-profit public interest law firm dedicated to the defense of religious liberty in America” that’s “under increasing assault.” (Freedom Guard seems to be currently inactive.) The law firm’s purpose, according to Johnson, was “to educate the government and citizens about important constitutional rights,” including “the right to free exercise of religion,” which it did for nearly 20 years on behalf of “persons of faith and organizations and even sometimes to government officials who are on the right side of these issues.”
Johnson’s adherence to the “right side” of First Amendment claims has translated into litigation on behalf of Christian groups urging a First Amendment right to government access and funding. In Roberts v. Haragan, for example, he represented in 2003 an individual who was denied permission to speak in Texas Tech University common areas about his view that “homosexuality is a sinful, immoral and unhealthy lifestyle.” In Pounds v. Katy Independent School District, Johnson sued a Texas school district in 2006 on behalf of Christian families who claimed that school officials told their kids they could not discuss God, pass out “faith bracelets” representing Christianity, ask if other kids would go to church, or write an Easter story about Jesus rather than “eggs,” “bunnies” and “jelly beans.” In Sonnier v. Crain, which was filed in 2008, Johnson sued Southeastern Louisiana University on behalf of a “professing Christian and a traveling evangelist for his faith” who “as a tenet of his religion . . . conveys his beliefs and convictions to others in public” but was asked to stop for “disrupting student education.” In the 2009 case Jews for Jesus, Inc. v. Town of Oyster Bay, he represented clients who were ordered not to distribute Christian literature in public parks. And in Storms v. City of Milwaukee, Johnson sued Milwaukee on behalf of anti-abortion protesters over a city ordinance, claiming that government officials showed a “consistent pattern of content discrimination . . . motivated by their disagreement with and hostility to the plaintiffs’ social and religious views” regarding “the sanctity of human life.”
A comparison of two additional lawsuits is especially telling: Ark Encounter, Inc. v. Parkinson, which he filed on behalf of a Christian religious organization, and Doe v. Tangipahoa Parish School Board, in which he represented the government defendant. The plaintiffs in Ark Encounter were religious. The plaintiff in Doe was nonreligious. Both sought enforcement of the First Amendment.
The Ark Encounter lawsuit gave rise to Johnson’s 2015 interview, which was conducted by Ken Ham, president of Answers in Genesis (AiG), the entity behind a Kentucky theme park called Ark Encounter and its life-sized Noah’s Ark. AiG is also responsible for Northern Kentucky’s Creation Museum, which since 2007 has functioned to show “why God’s infallible Word, rather than man’s faulty assumptions, is the place to begin if we want to make sense of our world.”
Although both entities originated as privately funded, in 2008, AiG applied for a public sales tax refund under the Kentucky Tourism Development Act to build the ark and an 850-seat “Christ the Door Theatre” for “biblically based plays and musicals.” Kentucky’s law offers incentives for developers to recover up to 25 percent of a project’s costs in sales taxes over 10 years, which amounted to an estimated $18 million of the ark’s anticipated $100 million price tag. Kentucky initially greenlighted a rebate on the understanding that AiG would not condition employment on applicants’ holding certain religious beliefs. However, AiG later pivoted to a hiring requirement “premised on moral standards and understanding of historical biblical accounts.”
In 2014, Kentucky’s Tourism, Arts and Heritage Cabinet rejected AiG’s application for public sales funding, claiming that AiG was a religious ministry and that supporting it with public funds would amount to the government’s endorsement of a particular religion in violation of federal and state constitutional anti-establishment principles. AiG’s religious mission was not in dispute; Johnson’s lawsuit listed its bylaws in great detail, including its rejection of the view “that knowledge and/or truth may be divided into ‘secular’ and ‘religious.’” Johnson sued on AiG’s behalf and secured a preliminary injunction from a federal judge. (Kentucky declined to appeal.)
By contrast, Doe involved an individual taxpayer’s challenge to a Louisiana school board policy that twice-monthly meetings open with a prayer and invocation by “eligible members of the clergy in the Parish of Tangipahoa” who belong to “religious congregations with an established presence in the local community” that are identified by board members. The plaintiff objected to a prayer policy that favored “religion over nonreligion,” and challenged the policy’s alleged “stamp of approval” of certain religious ministries in violation of the Establishment Clause.
This time, Johnson defended the government entity, the public school board, arguing that school board prayers are “an essential part of American culture,” citing a Supreme Court ruling in 1983, in a case called Marsh v. Chambers, that prayers by legislative chaplains are “simply a tolerable acknowledgement of beliefs widely held among people of this country.” Johnson also emphasized that the board expressly denied “any approval or endorsement of the religious beliefs or views of all invocation speakers,” including “between religion and non-religion.” The federal district court agreed with Johnson, calling Marsh an “exception to traditional Establishment Clause analysis.”
Considered side-by-side, Ark Encounter and Doe suggest that when Johnson says “religion,” he doesn’t mean all religions or — perhaps most significantly — the First Amendment right to choose no religion at all. Johnson instead aims to prioritize only a particular religion (Christianity), and in practice, mostly one strain of that religion (evangelicalism). Other faiths (Jews, Muslims, Buddhists) and even other branches of Christianity (Catholics, Orthodox, mainline Protestants) don’t as routinely sue to prioritize the expression of their faith in a government-sponsored forum. But based on his legal cases, it’s clear Johnson’s only concern is for the rights of Christians to exercise their faith in public and access government funding; he has not sought to obtain that privilege for other faiths and has been openly hostile to the idea that the public square should be neutral on religion or secularism.
In his 2015 interview, Johnson explained his position as being that “the government should not be hostile to people who have religious viewpoints.” For him, the real problem is “these atheist organizations from around the country” who feel a “need to silence and censor viewpoints with which they disagree.”
Under Johnson’s version of the Constitution, it’s the job of government — through the courts — to bring those “atheist” groups into compliance with his conception of religious freedom, one that openly promotes his strain of Christianity above all over faiths.
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