1 Introduction
America is undergoing a conservative legal counter-revolution in which non-state actors play important roles. They exercise considerable influence on the law through an infrastructure of organisations, lawyers and financial patrons advocating for the policy priorities of the diverse facets of the conservative legal movement. Although this movement is decades old, the 2016 presidential election gave it momentum, as President Donald Trump appointed judges recommended by conservative legal movement leaders, tapped lawyers active in this advocacy network to serve in his administration, and implemented policies advocated by key conservative organizations. Right-wing populists are just one part of the political coalition behind this effort, which also includes libertarians and business interests. But populist energy drives some of these legal campaigns – on abortion rights, LGBTQ+ rights, gun ownership, voting rights and affirmative action.
As explored in the articles in this special issue, similar political and legal developments are unfolding in parts of Europe in connection with disputes over human rights. Although the American and European experiences with right-wing legal mobilization are distinct and rooted in very different histories and institutional arrangements, they are linked through transnational networks and processes.
Scholars have examined some aspects of the operations of transnational networks of nongovernmental research and advocacy organizations, foundations, media outlets, churches, intellectuals and government officials active in battles over the meaning and reach of human rights law (e.g. Bob Reference Bob2012, Reference Bob2019a; Buss and Herman Reference Buss and Herman2003; Duffy Reference Duffy2018; Fetner Reference Fetner2008; Haddad Reference Haddad2018; Harms Reference Harms2022; Keck and Sikkink Reference Keck and Sikkink1998; Mancini and Stoeckle Reference Mancini, Stoeckle, Mancini and Rosenfeld2018; McCrudden Reference McCrudden2015). But there is much more to learn about the transnational flow of ideas, actors and influence as it relates to right-wing legal mobilization in Europe. In particular, several of the articles in this special issue note the involvement of US-based conservative legal advocacy groups and their European affiliates in these developments (Blokker Reference Blokker2024b; Cliquennois et al., Reference Cliquennois, Chaptel and Champetier2024; Kocemba Reference Kocemba2024), but little systematic research thus far has focused on the lawyers active in these organizations and the transnational networks of which they are a part.
This article offers a US perspective on the topic, identifying some of what we already know about the participation of US-based conservative legal advocacy groups in these contests and sketching an agenda for future research. It also suggests that we need to better understand the relationships between these organizations and ‘transnational legal orders’ – ‘collection[s] of legal norms and associated organizations and actors that shape the understanding and practice of law across national jurisdictions in a particular field’ (Shaffer and Halliday Reference Shaffer and Halliday2021, 171). The article first briefly describes the American conservative legal movement and the expansion in focus (i.e. from domestic to transnational processes) of some US-based conservative Christian advocacy groups. I then highlight examples of the involvement of some of these groups in advancing ‘rival rights’ claims (Bob Reference Bob2019a) in Europe and their use of strategies and tactics that are familiar in the US context. I conclude by suggesting questions to guide future research on this subject.
1.1 A sketch of the American conservative legal movement
There is a large and growing scholarly literature on conservative legal mobilization in the US (e.g. Bennett Reference Bennett2017; Decker Reference Decker2016; den Dulk Reference den Dulk, Sarat and Scheingold2008; Hacker Reference Hacker2005; Hollis-Brusky Reference Hollis-Brusky2015; Hollis-Brusky and Wilson Reference Hollis-Brusky and Wilson2020; Kersch Reference Kersch2019; Lewis Reference Lewis2017; Southworth Reference Southworth2008, Reference Southworth2018, Reference Southworth2023; Teles Reference Teles2008, Reference Teles2009; Ziegler Reference Ziegler2020). A brief synopsis will suffice here to provide background for what follows.
The American conservative legal movement began in the early 1970s, primarily in response to the expansion of civil rights, civil liberties, and the federal regulatory state (Southworth Reference Southworth2008; Teles Reference Teles2008). Conservatives criticized ‘activist’ judges and the lawyers who worked with them to accomplish liberal legal change. Business leaders disliked the courts for permitting regulation of their commercial activities. Western landowners claimed that judicial rulings infringed on their property rights. Southerners resented how judges and lawyers had teamed up to dismantle segregation. Religious conservatives were outraged by the courts’ decisions on abortion and school prayer.
To reverse the gains made by legal liberals through the courts, conservatives mobilised to replace liberal and moderate judges with committed allies.Footnote 1 They groomed and vetted reliable conservatives for judicial appointments and more actively patrolled the nominations and appointments processes (Devins and Baum Reference Devins and Baum2019; Teles Reference Teles2009). These efforts increased the proportion of judges receptive to conservatives’ concerns.Footnote 2
Conservatives also worked to address their disadvantages within the institutions that produce and legitimate ideas about law. Wealthy conservatives and their foundations invested in existing conservative think-tanks, such as the American Enterprise Institute and the Hoover Institution, and they established new ones, such as the Heritage Foundation, the Cato Institute and the Claremont Institute. They cultivated ideologically committed lawyers to formulate new legal arguments and recruited seasoned appellate litigators to give those arguments credibility (Hollis-Brusky Reference Hollis-Brusky2015; Southworth Reference Southworth2008, Reference Southworth2023; Teles Reference Teles2008). The law and economics movement introduced economic theory into the analysis of law and institutionalized it as a field of research in major law schools (Dezalay and Garth Reference Dezalay and Garth2002, 276–277; Duxbury Reference Duxbury1995, 330–419). Conservatives established dozens of advocacy organizations in the image of public interest organizations of the political left to advance alternative visions of the public good (Epstein Reference Epstein1985; Southworth Reference Southworth2005). Religious conservatives created their own legal advocacy organizations (Bennett Reference Bennett2017; Lewis Reference Lewis2017) and new ‘Christian worldview’ law schools (Hollis-Brusky and Wilson Reference Hollis-Brusky and Wilson2020). The Federalist Society, founded in 1982, emerged as a powerful networking and credentialing organization for conservative and libertarian lawyers (Hollis-Brusky Reference Hollis-Brusky2015; Southworth Reference Southworth2008; Teles Reference Teles2008). Legal strategies that liberal legal advocacy groups had used to expand civil rights and civil liberties became effective weapons in fights over business and environmental regulations, the power of unions, affirmative action, boundaries between church and state, abortion, guns and much more.
‘Fusionism’, a synthesis of ideas about freedom and moral authority, helped to unite various strands of conservatives, libertarians and business interests behind the Republican Party for much of the past half-century. The same was true of lawyers associated with various causes of the conservative legal movement. Fusionism was the formula embraced by the Federalist Society at its founding, when it vowed to challenge what it said was the ‘orthodox liberal ideology’ that dominated law schools and the legal profession.Footnote 3 The Federalist Society’s mission statement calls for ‘reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law’.Footnote 4
Generating a theory of constitutional interpretation that would impede legal liberalism while advancing the conservative movement’s policy goals was one of the conservative legal movement’s shared projects in the 1980s (Teles Reference Teles2009). The theory that emerged, ‘originalism’, looks to the framers’ understanding of the text of the Constitution and its amendments or to the original meaning of constitutional provisions at the time they were adopted. Early versions of originalism (and its close cousin, ‘textualism’) emphasised judicial restraint and served as a justification for criticising and challenging the civil rights and civil liberties decisions of the Supreme Court during the years when Earl Warren and Warren Burger served as chief justices (Bork Reference Bork1971, 6–7; Scalia Reference Scalia1989, 863–864). But by the 1990s, with a conservative majority on the Supreme Court and conservative advocacy groups eager to use litigation to attack liberal laws and policies, originalism had morphed from a theory of judicial restraint into one justifying active judicial review (Balkin Reference Balkin2020, 102–108; Keck Reference Keck2004, 282; Whittington Reference Whittington2004, 604). Originalism’s critics observe that the method’s malleability invites selective uses of history to achieve desired results and that its proponents often fail to apply it consistently (Gordon Reference Gordon2017, 361–381; Greene Reference Greene2021, 79–82; Hasen Reference Hasen2018; Siegel Reference Siegel2022, 47–50; Tushnet Reference Tushnet2020, 19–43). In the hands of conservative judges, originalism has served as a vehicle for challenging regulations and for restoring an earlier constitutional order that was more protective of traditional understandings about sex, sexuality, race and religion (Siegel Reference Siegel2023).
In the years following the Supreme Court’s 2015 ruling that same-sex couples have a constitutional right to marryFootnote 5 and that the Civil Rights Act of 1964 protects employees against discrimination based on their sexuality or gender identity,Footnote 6 social conservatives in the US have shown interest in alternative modes of constitutional interpretation. Adrian Vermeule, a Harvard law professor and conservative Catholic, argues that originalism has ‘outlived its utility’ and has impeded progress towards a ‘robust, substantively conservative approach’ to constitutional law and interpretation (Vermeule Reference Vermeule2020). He says that the Constitution should be interpreted to advance ‘substantive moral principles that conduce to the common good’ – moral principles rooted in natural law and traditional values (Vermeule Reference Vermeule2022). Vermeule’s ‘common good constitutionalism’ is a better approach than originalism for those who want the state to promote morals/vice legislation., restrictions on LGBTQ+ rights, and religious observance (Schwartzman and Schragger Reference Schwartzman and Schragger2022). Indeed, Vermeule advocates transforming the liberal state by means of ‘nonliberal actors [who] strategically locate themselves within liberal institutions and work to undo the liberalism of the state from within’ (Vermeule Reference Vermeule2018).
Over the past several decades, conservatives have achieved litigation success on a host of issues, including guns, abortion, campaign finance, labour, affirmative action, gay rights, voting rights and economic regulation. Most relevant to the topic of this special issue, they have won major legal victories advancing the interests and values of Christian conservatives, using the powerful language of constitutional rights and working alongside extended networks of party leaders, politicians, activists and interest groups.Footnote 7
Somewhat paradoxically, free speech frames have proven useful for promoting cooperation and building litigation alliances among groups claiming to represent different types of conservatives with varying policy commitments. During the years when Earl Warren served as chief justice of the Supreme Court (when liberals fought for the right to express controversial ideas), conservatives argued that countervailing values – tradition, family and morality – should trump expressive freedom (Batchis Reference Batchis2016, 5–6). But conservatives have since found free speech arguments helpful in advancing their policy goals (Batchis Reference Batchis2016; Kessler and Pozen Reference Kessler and Pozen2018). Business interests have used free speech arguments to challenge economic regulations and union activities.Footnote 8 Christian conservatives have deployed expressive freedom claims to protect the rights of abortion opponents to protest at clinics,Footnote 9 to demand greater accommodation of religion in public and private spheres,Footnote 10 to challenge a federal health statute’s mandate to cover contraception,Footnote 11 to resist campus speech codes, and to limit the reach of antidiscrimination laws,Footnote 12 even as some of them also have called for more limitations on curricula in public universities and bans on books in schools and libraries.Footnote 13
The uneasy alliance of business interests, libertarians and social conservatives that cooperated for many decades under a banner of freedom and limited government has fractured, as the hard-right flank has taken control of the Republican Party and as the political identities of its populist elements have diverged from those of the business elites and the Republican establishment (Ahmari Reference Ahmari2019; Continetti Reference Continetti2022). Right-wing populists assert that corporate America is controlled by ‘woke’ progressives and that it is more committed to its success in global markets than it is to the interests of ordinary Americans.Footnote 14 Some right-wing populist leaders embrace Viktor Orban’s self-proclaimed ‘illiberal democracy’ as a model for postliberal politics in America (Zerofsky Reference Zerofsky2021), and some imagine a conservative, Christianized conception of the rule of law in which all legislative, administrative and judicial authority derives from natural law principles revealed through scripture (Linker Reference Linker2023).
Struggles among various elements of the conservative legal movement mirror these tensions within the American political right. Elite lawyers associated with the Republican establishment took key positions in the administration of Donald Trump when he won the presidency in 2016, and some of them helped to thwart Trump’s efforts to overturn the results of the 2020 presidential election (Stahl Reference Stahl2022).Footnote 15 Several lawyers who claimed allegiance to the MAGA movement and facilitated the scheme now face bar discipline and criminal sanctions.Footnote 16 Some prominent conservatives argue that the Federalist Society has not done enough to distance itself from Donald Trump,Footnote 17 while others assert that Federalist Society members are too eager to conform to the expectations of conservative legal elites and are insufficiently committed to fighting cultural battles; they vow to find more compliant lawyers in the next Republican administration.Footnote 18
2 American conservative legal advocacy groups engage transnationally
American conservative Christian lawyers focused almost exclusively on the domestic arena until early in the first decade of the 21st century. European law informed their strategy primarily as it related to defensive concerns – how to prevent European human rights law from influencing rulings by American tribunals. However, these advocates thereafter found it useful – they might say necessary – to engage with the processes by which social orders ‘are legalized transnationally’ (Halliday and Shaffer Reference Halliday and Shaffer2015, 3).
In the early 2000s, liberal public interest lawyers who found their options narrowing under domestic law and in US tribunals experimented with new forms of transnational advocacy. With support from the Ford Foundation, the Open Society foundations and the American Civil Liberties Union (ACLU), they sought to ‘bring human rights home’ by importing favourable human rights law from Europe into US law (Bob Reference Bob2012, 75; Cummings Reference Cummings2008; Soohoo, Albisa and Davis Reference Soohoo, Albisa and Davis2007). Conservatives resisted attempts to invoke international law and the decisions of international tribunals in US courts. They characterised these practices as extensions of American elites’ left-wing agenda – part of a strategy to override the will of majorities and to impose the international elite’s political values in defiance of the preferences of ordinary people. Supreme Court Justice Anthony Kennedy outraged social conservatives when he cited a European Court of Human Rights (ECtHR) decision in Lawrence v. Texas, a ruling that invalidated a Texas law criminalising gay sexual conduct.Footnote 19 Another Kennedy opinion relied partly on international sources to find that the US Constitution prevented the death penalty for juveniles,Footnote 20 leading some conservatives to call for Kennedy’s impeachment.Footnote 21 Justice Antonin Scalia railed against these uses of international sources in his scathing dissenting opinions.Footnote 22
Several of the lawyers whom I interviewed in 2001–2002 for a book on the American conservative legal movement (Southworth Reference Southworth2008) expressed similar views.Footnote 23 Twenty-five of the seventy-two interviewed lawyers worked for groups representing the perspectives of social conservatives and abortion opponents.Footnote 24 Some of them expressed disapproval of the influence of foreign law on US institutions. One such lawyer explained that he believed it was important to defend US ‘sovereignty’, which he said was under threat from the practice of transnational judicial borrowing from international law.Footnote 25 Another lawyer described a new strategic objective of his organization – to ensure that ‘international agreements and international customs and so forth cannot supersede our constitutional rights’. He explained that ‘[m]ore and more interest groups are looking outside the law of the United States for a legal basis for what they want to have done inside the United States.… [W]e are seeing arguments being made in court that say, well, maybe there is no domestic law that says this, but there is an international agreement, or there are international customs, and as a member of the global community, etc., etc.’Footnote 26 Another lawyer explained that his organization was launching a ‘project on international law and American sovereignty’.Footnote 27
In 2005, Benjamin Bull, then–chief counsel of the Alliance Defense Fund (later renamed Alliance Defending Freedom [ADF]), an organization founded in 1993 to suppress factional fighting among US Christian litigators by funnelling money to cooperating groups, described why American conservatives needed to combat the influence of international human rights law. Bull insisted that ‘[i]f the ACLU and its radical activist allies have their way, the laws of Europe will soon be the laws of America.’Footnote 28 ADF announced that it was ‘tak[ing] on the international law movement’ and its ‘anti-Christian agenda’:
[T]hese radical groups and like-minded judges began to improperly invoke foreign law – specifically from precedent-setting cases in leftist Europe – as a means to dissolve religious liberty, marginalize human life, and promote an anti-marriage culture in America. By using foreign law to interpret the Constitution, they seek to validate the enforcement of radical new “rights” that will advance the homosexual agenda, which poses a grave threat to the sovereignty of our nation and our God-given, constitutionally protected freedoms.Footnote 29
American religious conservatives also took the fight to Europe, insisting that the fates of Christian conservatives in the US and Europe were linked. Robert Bork, whose failed nomination to the serve on the US Supreme Court turned primarily on his views about the constitutionality of prohibitions on contraception and abortion, described ‘[i]nternational law and domestic constitutional law in the United States’ as ‘two battlegrounds in the same ideological war within and among the nations of the west’ – both involving elites who ‘employ non-democratic institutions to override the expressed desire of majorities’ (Bork Reference Bork2004). Addressing the apparent contradiction between insisting on ‘sovereignty’ at home while participating in legal battles overseas, ADF explained that ‘[c]onfining our fight to defending America from foreign law carries the significant risk of winning a domestic battle while potentially – in time – losing the world’.Footnote 30 These advocates recognized that investments in activities abroad sometimes pay dividends in domestic struggles.Footnote 31
Several lawyers whom I interviewed in the early 2000s commented on those initiatives abroad. One advocate explained how his organisation decided to begin representing religious conservatives in Europe. ‘You know, we’d win some cases in the [US] Supreme Court and began to get some recognition not only nationally but internationally, so we began getting requests for legal assistance from churches [in Europe and Russia] and obviously we couldn’t handle them from the States.’ He explained that his organization was ‘developing lawyers throughout Europe, Christian lawyers’ who could provide legal assistance to individuals and churches ‘in connection with persecution or harassment issues, with an eye towards developing case law in the European Court of Human Rights’. He compared battles over human rights law in Europe to struggles over constitutional law in America during the early years of John Marshall’s service as chief justice of the US Supreme Court, when major questions about the relationship between the federal government and the states and the relationship between the Supreme Court and the other branches were highly unsettled. ‘In Europe,’ he said, ‘it’s like the Marshall Court of 1810 in its very early formative stages, and so there’s a lot of excitement.’Footnote 32 Another lawyer described a need to protect conservative evangelicals: ‘if one is not Lutheran or Catholic [in Europe], one is seen as a member of a cult.’ He added that the American experience did ‘not provide a perfect template for protecting such people’, but that his group was ‘looking to EU documents and the Helsinki Accords for legal hooks’.Footnote 33
There is now abundant evidence that America’s culture wars have ‘gone transnational’ (McCrudden Reference McCrudden2015) and that US-based organizations are important players in this transnational, conservative legal mobilisation (NeJaime and Siegel Reference NeJaime, Siegel, Mancini and Rosenfeld2018). A review of Clifford Bob’s 2012 book, The Global Right Wing and the Clash of World Politics, noted that ‘the influence of American conservatives is hard to miss’ in international battles over LGBTQ+ rights and gun ownership, for example, and that the ‘“global” networks seem to be constituted almost entirely by American actors, resources and ideologies’ (Fordahl Reference Fordahl2014). Several articles in this special issue flag the prominent role of US-based organizations in conflicts over abortion and gay rights. Cliquennois et al investigate how European private conservative Christian organizations are fighting with liberal NGOs in litigation before the ECtHR and the Court of Justice of the European Union (Cliquennois et al Reference Cliquennois, Chaptel and Champetier2024). Blokker explores how conservative actors and institutions, including groups with strong US ties, are not only resisting progressive human rights claims but also asserting rights claims of their own (Blokker Reference Blokker2024b).
Since the early 2000s, two groups with strong links to the US – ADF International, the global arm of ADF, and the European Centre for Law and Justice [ECLJ], an affiliate of the American Center for Law and Justice – have been especially active in Europe in legal fights over gay rights, religious expression and abortion, as described in several papers in this special issue. Other such US-based organizations include the C-Fam Center for Family & Human Rights, Family Watch International, Advocates International, National Organization for Marriage, National Right to Life, Family Research Council, the Becket Fund for Religious Liberty and Focus on the Family. These groups argue that the recognition of new human rights relating to abortion and sexuality violates natural law and the legitimate expectations of the people of sovereign nations.Footnote 34
ADF is now the largest and most successful of these organizations, both in America and on the global stage. ADF’s litigation activities in the US focus primarily on abortion and gay rights and on advancing the interests of conservative Christians. In just the past twelve years, ADF has won fourteen Supreme Court victories, including Dobbs v. Jackson Women’s Health Organization (2022),Footnote 35 which overturned Roe v. Wade (1973),Footnote 36 thereby eliminating a constitutional right to abortion, and 303 Creative LLC v. Elenis (2023),Footnote 37 which found that a website designer had a right to refuse to make a wedding website for a same-sex couple. ADF also represented a group of doctors in a challenge to the Food and Drug Administration’s approval of mifepristone, an abortion pill.Footnote 38 The organization hosts a ‘Young Lawyers Academy’ to prepare recent law school graduates and young lawyers to advocate for the organization’s primary causes.Footnote 39 All graduates of the program join ADF’s Allied Attorney Network, whose members ADF deploys to challenge ‘an increasingly hostile culture and against an ever-encroaching state’.Footnote 40 Lawyers affiliated with the organization have moved into many top positions in federal and state legislative, executive and judicial branches (Kirkpatrick Reference Kirkpatrick2023).
ADF is also active beyond American borders. It claims to be ‘the world’s largest organization committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family’.Footnote 41 Both domestically and internationally, it seeks what it calls ‘generational wins’ – ‘precedent-setting victories that will positively impact law and culture for years to come’ — with respect to each of its five areas of concern. The organization has seven offices outside the US, including in Vienna, Brussels, Strasbourg, Geneva and London, and it claims to ‘advocate for … clients in courtrooms around the world’, working together with an alliance of more than 4,600 lawyers.Footnote 42 It has trained more than 2,600 law students from 230 law schools in thirty different countries through its Blackstone Legal Fellowship program.Footnote 43 The organization participates in a variety of law-making arenas, including the United Nations, the European Court of Human Rights, the Council of Europe, the Organization for Security and Cooperation in Europe and the Council of Europe. It claims to have ‘played a leading role in 30 victories before the European Court of Human Rights’.Footnote 44 It is especially active in issues relating to gay and transgender rights, hate speech and abortion, but it also advocates for homeschooling and parents’ rights to resist public schools’ curricula on sexuality and race.Footnote 45 It mobilises conservative media outlets to spread the word about local developments with broader implications.Footnote 46 ADF reported revenue of $111 million in 2022, with $5,224,709 spent on activities in Europe.Footnote 47
The European Centre for Law and Justice (ECLJ) in Strasbourg describes itself as ‘a Christian-inspired organization’ whose mission is ‘the promotion and protection of human rights in Europe and worldwide’.Footnote 48 It represents individuals and groups before the European Court of Human Rights and the European Court of Justice and in the legislative process in the European Parliament and the European Commission. ECLJ is affiliated with the American Center for Law and Justice (ACLJ), an organisation founded by televangelist Pat Robertson in 1990 to defend and advance ‘religious liberty, the sanctity of human life, and the two-parent, marriage-bound family’. ACLJ’s chief counsel, Jay Sekulow, founded ECLJ in 1997. Sekulow has led US judicial confirmation battles on behalf of Christian conservatives (along with the Federalist Society’s Leonard Leo) since the early 2000s, and he served as lead outside defence counsel in President Donald Trump’s first impeachment trial. Dr. Grégor Puppinck, a French lawyer and lecturer at the Collegium Intermarium University in Warsaw, is ECLJ’s director general. In 2022, ACLJ reported total revenue of $24,339,064, with $966,982 supporting its activities in Europe.Footnote 49
Conservative lawyers in the US are connecting with like-minded international advocates at events stressing national sovereignty and traditional values. For example, the Edmund Burke Foundation, founded in 2019 with the mission of ‘strengthening the principles of national conservatism in Western and other democratic countries’, has organised a series of international conferences to advance a new direction for conservatives built around nationalism (NatCon).Footnote 50 At the first NatCon conference in Washington, DC in 2019, Missouri Senator Josh Hawley (a Yale Law School graduate and the husband of the ADF lawyer representing doctors in the mifepristone litigation in the Supreme CourtFootnote 51) delivered an address on the growing divide between cosmopolitan elites and the rest of America; he said that the cosmopolitan class ‘lives in the United States, but they identify as “citizens of the world”’ and view globalization as ‘a moral imperative’.Footnote 52 Lawyers at NatCon conferences in London, Rome, Orlando, Brussels and Miami have voiced similar themes. In 2022, for example, ECLJ Director Grégor Puppinck delivered an address describing human rights as a field that has been captured by ‘progressivist private groups’, including the Open Society foundations, the Ford Foundation and global businesses. He explained that conservatives increasingly find themselves at odds with a system that minimizes national authority and defines human rights in ways that are incompatible with aspects of culture that conservatives want to preserve.Footnote 53 Puppinck also spoke at the 2022 US Conservative Political Action Conference (CPAC) meeting, held for the first time in Budapest, where Viktor Orban served as the event’s keynote speaker. (Fox News host Tucker Carlson also spoke at this meeting.) Rachana Chhin, Legal Counsel of ADF International, spoke in November 2023 at a ‘Transatlantic Summit’ in New York that was organized by the Political Network of Values, a ‘global platform of worldwide political representatives and leaders who actively promote and defend the values of family, life and freedom’.Footnote 54 Speakers at the Transatlantic Summit also included representatives from the Heritage Foundation, Family Watch and C-Fam.Footnote 55
American-style originalism has little influence outside the US,Footnote 56 but varieties of ‘common good constitutionalism’ find receptive audiences in Europe among sceptics of international institutions and global governance.Footnote 57
3 Advancing rival rights claims and deploying tested tactics
As Blokker explains in his article for this special issue, populists in Europe do not just criticize human rights claims advanced by progressives; they also offer ‘rival interpretations of rights, depicting conservative forces as victims of liberal human rights regimes, and repudiating authoritative statements of liberal organizations’ (Blokker Reference Blokker2024b, citing Bob Reference Bob2019a, p. 15). They invoke free speech and religious liberty arguments as the basis for resisting anti-discrimination laws, hate speech laws and buffer zones around abortion clinics. They frame their opposition to abortion in terms of a fundamental right to life. They assert parental rights to direct the upbringing and education of their children. Some of these rival rights claims are rooted in natural rights assertions about the foundations of law.
US-based legal advocacy groups and their European affiliates are active participants in advancing these rival rights claims. ADF International’s website and newsletters include posts about pastors, protestors and ordinary people who have been victimized by laws that it says violate free speech rights.Footnote 58 In early 2024, two incidents – the hate crime prosecution of a parliamentarian in Finland who was prosecuted for her ‘Bible-verse tweet’ referring to same-sex relationships as ‘shameful’Footnote 59 and the arrest of a woman engaged in silent prayer within a buffer zone around an abortion clinic in Birmingham, EnglandFootnote 60 – featured especially prominently on the website.Footnote 61 Paul Coleman, the executive director of ADF International, predicts that we will see ‘more and more of these cases cropping up across Europe’ over the next several years.Footnote 62 Those episodes serve as powerful rallying cries for religious conservatives across national borders, as evidenced by their frequent mention in fundraising appeals.Footnote 63 ADF International claims to work with free speech advocates around the globe to resist policies that amount to censorship by governmental and corporate actors.Footnote 64
There is also some evidence that strategies and tactics commonly used by cause lawyers in strategic rights campaigns of both the left and the right in America are employed by conservative Christian advocacy groups in Europe. Kocemba documents how abortion opponents in Poland combine litigation, legislation, and media strategies to further their objectives, an integrated advocacy approach long used by liberal and conservative groups in the US (Kocemba Reference Kocemba2024).Footnote 65 Kocemba (Reference Kocemba2024) and Cliquennois et al (Reference Cliquennois, Chaptel and Champetier2024) emphasize the influence of amicus briefs and amicus coordination, important aspects of the repertoire of advocates of all political stripes in the US (Collins, Corley and Hamner Reference Collins, Corley and Hamner2014; Hazelton and Hinkle Reference Hazelton and Hinkle2022).Footnote 66 And just as conservative advocacy groups have mobilised to influence judicial appointments in the US, some Christian-right advocacy groups seek to shape the processes by which European judges are selected. As Cliquennois et al note, ECLJ recently issued two reports on the European Court of Human Rights: one on the background of the judges on the court, finding that many of them previously worked for private foundations funded by the Open Society Foundations, and another finding that some judges had ruled in cases in which the organizations for which they had previously worked were parties, calling into question their impartiality.Footnote 67 C-Fam organised an unsuccessful effort to defeat the appointment of Sarah Cleveland to serve on the International Court of Justice, citing her support for abortion and LGBTQ+ rights. A petition contesting her appointment, signed by 350 pro-life groups worldwide, called her a ‘pro-abortion globalist’ who believes that ‘international experts can manufacture new human rights obligations regardless of what sovereign nations decide’.Footnote 68
An unsystematic review of the publications of these organizations suggests that their leaders have absorbed sociolegal scholars’ insights about ‘law in action’. Explaining why the public should not be satisfied that charges have been dropped against the Finnish parliamentarian accused of hate crime violations last year, ADF’s Paul Coleman emphasized that ‘the process becomes the punishment in these hate speech cases’,Footnote 69 borrowing a phrase coined by Berkeley Law Professor Malcolm Feeley to describe the real costs to people accused of misdemeanours and lesser felony charges—not the fines and prison sentences imposed by the courts but the time and money spent dealing with the process (Feeley Reference Feeley1979). ECLJ’s website refers to Cliquennois’ book on the capture of the European human rights justice system by neo-liberal interests (Cliquennois Reference Cliquennois2020) as evidence of the need to mobilize Christian conservatives to resist the influence of globalists in these fora.Footnote 70 Leaders of some of these groups also appear to appreciate that frames and discourse are integral to the diffusion, competition, and institutionalization of ideas that drive the development of law.Footnote 71 In an article on an effort to pass laws expanding anti-discrimination laws to reach sexual orientation, ADF International’s Paul Coleman insists that religious conservatives must not acquiesce in liberals’ characterization of conservatives’ objection to gay rights: ‘Framing religious liberty … – as a “right to discriminate” – has become common…. If we accept the idea that religious freedom is a priori discriminatory and can only be permitted under an exemption, the public’s attitude towards that once sacrosanct freedom will be forever changed.’Footnote 72 In another statement, Coleman observes that ‘[i]n the language of “equality,” “diversity,” and “tolerance,” secularists have found a way to sideline and marginalize Christianity’.Footnote 73
Leaders of US-based groups and their European affiliates sometimes make explicit their understanding of the transnational stakes of their advocacy, as Coleman did when he warned that Americans should not follow Europe ‘down the path of censorship’ on hate speech as applied to anti-LGBTQ+ expression: ‘Europe has a free speech problem,’ he explained: ‘It should serve as a warning to the United States.’Footnote 74 Such statements reach international audiences through a wide range of publications and media outlets.Footnote 75 Similarly, an article on ECLJ’s website applauds a U.S. federal trial judge’s 2023 ruling (later overturned) that suspended the marketing of mifepristone, noting that ‘[a]lthough France does not have a legal system equivalent to that of the United States, this decision constitutes a legitimate step forward for the protection of women and future newborns from which France could draw inspiration’.Footnote 76
4 Conclusion: an agenda for future research
The right-wing populist legal mobilisation now underway in Europe is connected to fights between liberal and conservative forces worldwide, and it appears to receive a significant boost from some conservative US-based Christian groups and their affiliates. A narrative about liberalism and its association with moral decline, consumerism and hostility towards religion is a common thread in conservative populism in Europe and the United States, as is the related theme regarding threats to national sovereignty and mistrust of cosmopolitan elites and their global communities (Blokker Reference Blokker2019; Muller Reference Muller2016).
The human rights field is an important arena of contestation in which conservative populists compete with liberal advocates to define key concepts and premises.Footnote 77 As Blokker shows, there is a ‘shared semiotics of civil society, even if highly contrasting claims are formulated’ (Blokker Reference Blokker, Antoniolli and Ruzza2024a). There is also some overlap in the complaints by populists of the left and the right about the “‘thin’ framework of process and rights in legal liberalism as well as about democratic deficits in European institutions.Footnote 78 But not all claims advanced by right-wing populist advocacy groups can be reconciled with the idea of an open, pluralistic and democratic civil society (Blokker Reference Blokker2024b; de Búrca and Young Reference de Búrca and Young2023; Kocemba and Stambulski Reference Kocemba and Stambulski2024;). Some of their claims seem to invite authoritarian uses of state power to enforce traditional ideas about marriage and sexuality.
What is certain is that we need more systematic research on the goals, operations, strategies and discourse of this complex constellation of lawyers, organizations and patrons. Research should explore how these actors participate in the dynamic processes through which ‘norm making and practice at the international, national, and local levels interact’ and how ‘legal norms are developed, conveyed, and settled transnationally’ (Halliday and Shaffer Reference Halliday and Shaffer2015, 1). Attention to the interaction of opposing networks in these conflicts will help to illuminate the full range of strategies and effects (Bob 2012, 3; Reference Bob, Soule, Kriesi and McCammon2019b) and their relationship to movements and counter-movements and to competition within civil society over the meaning and prioritization of rights (Bob Reference Bob2019a; Blokker Reference Blokker2024b).
With respect to the roles of US-based conservative legal advocacy organizations and their European affiliates in these fights, the following questions deserve attention: What do these advocates believe they have accomplished so far, and what do they still hope to achieve? Whom do they claim to represent? What are their primary sources of financial backing? How do they generate public support for their causes and recruit allies? When and how do these organizations sometimes forge alliances with groups that do not share all their political and religious commitments? How do their legal arguments, strategies and frames emerge and travel?Footnote 79 What have US-based groups learned from their European counterparts, and how do the former expect their efforts overseas to produce valuable reciprocal resources – arguments, strategies, discourse, favourable media coverage and judicial rulings – for use at home?Footnote 80
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