Interviewing Kristen Waggoner
By the Editorial Board
Kristen K. Waggoner serves as General Counsel for Alliance Defending Freedom. Her role includes oversight of the U.S. Legal Division and Communications, which includes over 100 attorneys and staff who engage in litigation, public advocacy, and legislative support. Since 2014, ADF has represented prevailing parties in ten U.S. Supreme Court victories, including Masterpiece Cakeshop v. Colorado Civil Rights Commission, which she argued before the Supreme Court. She also served as counsel in the free speech victory the Supreme Court handed down in National Institute of Family and Life Advocates v. Becerra, and she is slated to argue Uzuegbunam v. Preczewski at the High Court in the 2020-21 term. The Conservateur is honored to feature Kristen Waggoner in this exclusive interview where we cover her career and journey with religious liberty and Constitutional conservatism.
You are the leading female attorney at Alliance Defending Freedom, a nonprofit legal powerhouse that has secured many constitutional victories for its clients and Americans overall. What originally inspired you to practice law on behalf of conservative causes?
It’s truly my privilege to serve as General Counsel at Alliance Defending Freedom, the largest legal organization in the country committed to protecting religious freedom, free speech, parental rights, and the sanctity of life. I’m so thankful for Alan Sears, ADF’s Founder, and Michael Farris, its current CEO, for their leadership. I’m also indebted to the incredibly dedicated, talented team of men and women we have serving today.
My path to ADF wasn’t a direct one. My dad always told me that I should discover God’s purpose for my life and that if I missed that purpose, I would be wasting my life. Even today, he often reminds me that biblical heroes like Esther, Deborah, Nehemiah, and David were regular people that God used for His purpose and that I should be willing to take risks for what is right.
At age 12, I decided to become a lawyer to protect our First Amendment freedoms. I assumed that would mean I’d join a public interest firm after law school. Instead, I completed a judicial clerkship and spent the next 16 years at a private law firm in Seattle. During that time, some of my clients were religious nonprofits and I litigated a variety of constitutional cases. In many ways, the rigor and practical demands of private practice helped prepare me for my current role. Once I became a partner at my firm, I expected to retire there. My partners were some of my closest friends.
Around 2012, I began to feel a growing sense of restlessness—that my faith was prompting me to be the “risk taker” that my dad had challenged me to be. The fundamental freedoms guaranteed by the Constitution seemed to be facing increasing threats and recent court decisions suggested that those who held to traditional religious beliefs would suffer more and more government hostility. At the time, I was lead counsel in a case called Stormans, where Washington state was trying to force pharmacy owners to dispense early abortifacients. Then Washington targeted Barronelle Stutzman of Arlene’s Flowers, who declined, because of her faith, to personally participate in and design custom floral art celebrating the same-sex wedding of a customer she had served for nearly 10 years. The state sued Barronelle both in her business capacity and personally, threatening to financially ruin her. Those two cases prompted me to get involved in pro-bono advocacy full-time. I haven’t regretted it for a minute. The clients we represent are amazing—compassionate, kind, and courageous. They are the Esthers, Nehemiahs, and Deborahs of today.
In 2018, you represented Christian baker Jack Phillips in the high-profile Masterpiece Cakeshop v. Colorado Civil Rights Commission case at the Supreme Court. Can you tell us about ADF’s subsequent progress in defending the right to free expression and religious liberty for creatives more broadly, like photographers, florists, and musicians?
Religious freedom ensures that every person has the right to explore life’s deepest questions and to live out one’s religious convictions in the public square, not just in the privacy of a home or a place of worship. Free speech similarly ensures that all have the liberty to engage in civil discourse and pursue truth without fear of government punishment. These rights are rooted in human dignity and the constitutional principle that government should have limited power over its citizens. These freedoms and our right to exercise them does not depend on cultural popularity or political power. A free and tolerant society requires all of us to extend the same constitutional freedoms to others that we ourselves want. Sometimes that means listening to and tolerating viewpoints with which we vehemently disagree or even find deeply offensive. That’s authentic diversity and it’s in short supply.
For many years, religious freedom cases in the United States focused mostly on protecting certain minority religious beliefs. But today, the government has begun legislating in areas that violate core tenets of the Christian, Jewish, and Islamic faiths, including beliefs about the nature of marriage and human sexuality. These beliefs are central to the faith of millions of people and play an essential role in families. People like Jack Phillips, who design and create artistic works for a living, simply want the freedom to participate in society and to raise their families without fear that the government will punish them for their views or their speech on these important topics. Jack and our other creative professional clients decide whether to create expression or participate in a religious ceremony solely based on what the message is, not the person requesting it.
Thankfully, the U.S. Supreme Court in Masterpiece held that Colorado violated Jack’s free exercise rights under the First Amendment because of its open hostility to his religious views. Because of this religious hostility, the Court did not need to rule on whether Colorado violated Jack’s free speech rights. Unfortunately, Jack has since been targeted by Colorado and a transgender activist lawyer. This lawyer asked Jack to design two cakes: a custom blue and pink cake celebrating a gender transition and another cake celebrating Satan and drug use. When Jack declined, Colorado came after Jack again—only 24 days after we won at the Supreme Court. Jack remains in litigation today, fighting for the right to decide which messages he creates, and which he respectfully declines because they violate his convictions. We are fighting right by his side and on behalf of others like him.
A few weeks after Jack’s Supreme Court victory, the Court upheld the free speech rights of another ADF client, the National Institute of Family and Life Advocates, which is a coalition of pro-life pregnancy resource centers. California sought to compel these religious centers to inform patients that they could obtain free or low-cost abortions from the government. In his concurring opinion, Justice Anthony Kennedy emphatically stated, “Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”
Building on the victory in NIFLA, ADF secured a victory for filmmakers Carl and Angel Larsen in Telescope Media Group v. Lucero. Similar to Jack’s case, Minnesota officials used a public accommodation law to demand that the Larsens create wedding films celebrating a conception of marriage that violated their religious beliefs. After years in court, the Eighth Circuit Court of Appeals ruled that Minnesota can’t force the Larsens to violate their beliefs. The Arizona Supreme Court also cited Masterpiece and Telescope Media Group in its ruling in another ADF case, Brush & Nib Studio v. City of Phoenix, and forbid Phoenix from using a criminal law to force two artists to design and create custom wedding invitations expressing messages about marriage that conflict with their core beliefs.
Masterpiece was a great victory, but there is much more work to be done to protect the religious freedom of all Americans. For example, despite Jack’s win, Washington state continues to pursue its lawsuit against floral artist Barronelle Stutzman, so we have asked the Supreme Court to hear her case and resolve the important issues left unanswered by Masterpiece. It is critical for the high court to reaffirm that the First Amendment protects the freedom of Americans to live consistently with different views about topics as fundamental as the meaning of marriage.
Just a short time ago, socially progressive organizations like the NAACP and ACLU dominated the legal advocacy landscape. In recent years, the Left’s intensifying assaults on freedom of religion and speech have created new vulnerable parties requiring legal defense. Can you talk about ADF’s growing role in this new environment?
ADF has the great honor to work alongside individuals facing government hostility for their faith. It feels a bit like we’re David against Goliath, yet we know how that story ends. We’re representing teachers and professors who are being told to contradict their beliefs about sex and gender, if they want to keep their jobs. One of those clients is philosophy professor Nicholas Meriwether, who went out of his way to accommodate all his students and treat them all with respect. Still, his university punished him because he wouldn’t violate his convictions and refer to a male student as a woman. Then there’s Dr. Allan Josephson, an expert in child and adolescent psychiatry and psychology. He participated in a panel discussion at The Heritage Foundation, where he expressed his professional views on the treatment of youth experiencing gender dysphoria. A few university faculty and staff members objected to Dr. Josephson’s views. The university then demoted him from his long-held position and eventually declined to renew his contract, terminating him. Dr. Meriwether’s and Dr. Josephson’s cases are ongoing.
In the world of women’s sports, brave high school students in Connecticut and college athletes at Idaho State University have stood up to defend the integrity of women’s athletics. In each situation, they’ve been forced to compete against male athletes who identify as female. They’re defending fair play in federal court not just because they’ve been sidelined in their own sport, but because they believe girls deserve the same opportunity as boys, and when society erases important biological differences between sexes, we all lose— but especially women and girls.
I already mentioned some of our creative professionals, but there are others who wish to photograph weddings, design websites, write wedding vows, or print T-shirts without the government forcing them to create art or messages that violate their deeply held beliefs. If our country is going to function as a pluralistic and diverse society, we need to respect each other’s convictions in these fundamental ways and realize that the ongoing conflict transcends the marriage issue. If the government can force Jack or Barronelle to violate their conscience, it can do that to any one of us.
There are many existing faith-based public interest law organizations. How does ADF distinguish itself among these allies?
In the last 25 years, ADF has contributed to 60 Supreme Court victories. Our team has prevailed in 11 victories at the U.S. Supreme Court since 2011. These cases—such as Masterpiece Cakeshop, Trinity Lutheran, Reed v. Town of Gilbert, Hobby Lobby/Conestoga Woods, Zubick/Geneva College/Southern Nazarene University, and NIFLA—have provided precedent for over a thousand other cases and are quickly becoming bedrocks of free speech and religious liberty protections. We’ve also secured over 435 victories protecting free speech rights for students and faculty on college campuses with an over 90 percent win rate. One victory builds on another and all these victories protect freedom not just for our clients, but even for those who disagree with them.
We make no secret of our identity; we are a Christian organization. We have a close alliance with hundreds of churches, Christian schools, and other faith-based nonprofits. But we also choose to build diverse strategic alliances and defend a broad array of clients—including those of other faiths or no faith at all. We are an organization motivated by our faith and determined to secure freedom for everyone.
An outspoken Catholic and pro-lifer, Supreme Court justice Amy Coney Barrett was quickly villainized by the Left for her faith. What did her confirmation process mean to you as another female legal scholar of faith?
It was an absolute delight to watch Justice Barrett at the confirmation hearings. She was calm, articulate, and defied every stereotype used against conservative women. For too long, progressives have sidelined, silenced, and denigrated conservative women, to the point of ignoring our existence. But our critics don’t define what it means to be a successful woman in public service. Justice Barrett’s confirmation brings us out of the shadows, so to speak, and makes it clear that women are intellectually diverse, hold many different convictions, and can invest deeply in family life while pursuing an outstanding legal career. Unfortunately, the process revealed that some on the far Left care more about ideological purity than women’s advancement and equality in the marketplace.
Justice Barrett is also a woman of faith, and the attempts to disqualify her from serving on the Supreme Court were religious bigotry. I was encouraged that these efforts were unsuccessful. We live in a country that protects the right to freely practice any faith we choose, and everyone—even a Supreme Court justice—is entitled to that right. Justice Barrett’s courageous example of refusing to apologize for or minimize the role of faith in her life, and her steady responses to these attacks, inspired me and women around the world.
With Amy Coney Barrett’s addition to the Supreme Court, how do you see her originalist judicial philosophy affecting the balance on the bench and future constitutional decisions?
Unlike public policy organizations, ADF regularly appears in the Supreme Court and other federal courts. It would be inappropriate for us to speculate on how any judge will rule in particular cases. Justice Barrett’s previous decisions suggest that she deeply respects the First Amendment rights of all Americans and that she views her role as someone who applies the law as written rather than as she would like it to be written. I am optimistic she will continue to interpret the law this way in future cases.
In this era of cancel culture and internet censorship, there is a growing hostility toward free speech and religious liberty. We’re very interested to hear your thoughts on Uzuegbunam v. Preczewski, which you will argue at the Supreme Court in the 2020-2021 term. How is this case different from the other cases ADF has litigated? Most importantly, what is at stake here?
We hope the Court will reaffirm that government officials should be held accountable for violating the First Amendment rights of Americans. In 2016, Georgia Gwinnett College officials stopped Chike Uzuegbunam not once, but twice, from sharing his Christian faith with fellow students in public, outdoor areas on his college campus. First, officials said that to continue his conversations about his faith, he had to get advance permission to use one of two tiny speech zones that made up approximately 0.0015% of the campus— the equivalent of a piece of paper on a football field— and were only open 10% of the week. Chike did what they asked. He reserved a time and went to the speech zone to speak about his faith. Even then, two campus police officers ordered him to stop and threatened him with discipline if he continued to share the Gospel.
Even with a reservation in the zones, his speech was subject to the whims of government officials—a policy that is incompatible with the First Amendment. ADF challenged the College’s unconstitutional policies in court. In response, officials argued that Chike’s sharing his religious beliefs should receive no constitutional protection. Then the College changed its speech policies and argued that the court should dismiss the case and ignore that the College had already violated Chike’s rights. After waiting a year to rule, until after Chike graduated, the court said that because the College changed its policy and because Chike had graduated, it would not remedy the constitutional violation. The Eleventh Circuit agreed. On July 9, the U.S. Supreme Court agreed to hear Chike’s case, and I will argue Chike’s case before the Court on January 12, 2021.
Chike’s story highlights the bigger threat. Government officials should not get a free pass when they violate someone’s constitutional rights. That’s why groups as diverse as the American Civil Liberties Union, the Jewish Coalition for Religious Liberty, National Right to Work Legal Defense Foundation, and the American Humanist Association have filed friend-of-the-court briefs supporting our case.
The modern university is a major culprit of free speech suppression. How can we as a nation meet the challenge of holding publicly-funded colleges accountable for violating first amendment rights?
Universities are supposed to be places where free speech and open debate are encouraged, not restricted and shut down because certain speech is unpopular—or even if it makes someone uncomfortable. Cancel culture and censorship are rampant in our society, but especially on university campuses. ADF’s Center for Academic Freedom is dedicated to ensuring the freedom of speech and association for students and faculty on campus. We defend professors who are sidelined and censored because of their beliefs. We represent numerous conservative and Christian student groups that face discrimination because of their schools’ unconstitutional policies. CAF litigates more student free speech cases than any similar organization and has enjoyed an over 90 percent success rate. This work is some of our most strategic because public colleges and universities are meant to be free and open to the exchange of ideas. They must be places where our future teachers, lawyers, doctors, judges, community leaders, and voters can exercise their constitutionally protected freedom of speech because the lessons they learn there about the First Amendment will impact our future. What happens on campus does not stay on campus.
Several states have passed legislation called Forming Open and Robust University Minds Act, which ensures that public universities remain places where intellectual diversity flourishes and all students can engage in the exchange of ideas rather than being censored on campus. These FORUM Acts ensure that a college or university that receives state funding may not ban students from engaging in expressive activity in the public, open areas of campus, so long as the student’s conduct is lawful and does not disrupt school operations. We hope that these state laws help colleges and universities again become places where intellectual diversity flourishes and all students can freely engage in the exchange of ideas.
What advice do you have for young conservative women looking to enter the legal profession or attend law schools which are predominantly left-leaning?
Go for it! It’s a tough but rewarding profession. I’ve never regretted it even in the most difficult seasons. Helping those in need can be a source of such joy, whether in private practice or public interest work. Every job involves monotony at some level, pushing papers and doing mundane or meticulous work, but lawyers are uniquely positioned to do good and pursue justice. A career in the law provides a tremendous opportunity for influence. Even in the middle of some of the monotonous work, I’ve still enjoyed crisp, clear moments where I’ve known that I’m right where I’m supposed to be. That’s one of the best feelings in the world. It is second only to sharing those moments with my kids—especially my daughter who I pray I am raising to be a strong conservative woman who will pursue whatever roles God calls her to do.
As for the concern about attending left-leaning law schools, not every law school is left-leaning, though the vast majority are. Whether choosing one of the many left-leaning schools or the few conservative ones, it’s important to pursue opportunities to engage with like-minded law students on campus—such as the Federalist Society or Christian Legal Society—or off campus through programs like ADF’s Blackstone Legal Fellowship. Blackstone is a leadership training program that brings together exceptional Christian law students and prepares them for careers marked by integrity, excellence, and leadership. We need more conservative women in the legal profession, so don’t be deterred by the obstacles you might face if you feel a calling to the law.
What is the greatest obstacle you’ve confronted throughout your career as a lawyer and what enabled you to overcome it?
There have been many obstacles along the way, but what goes on in my own head has been the greatest obstacle. I am my harshest critic and self-doubt plagues me. Whether in oral argument, a media interview, a presentation, or even a private conversation, I critique myself and quickly find things I wish I’d said or done differently. Always. It’s especially easy at ADF because I’m surrounded by so many immensely gifted people. Self-awareness is good; what’s not good is that I can sometimes play that tape over and over again in my head, to the point where I nearly convince myself I should never argue another case, do another interview, or even lead a team.
Overcoming self-doubt is a work in progress, even still today. They say that the person you talk most to is yourself. I work to overcome this obstacle by reminding myself of first principles. While I am rarely the smartest person in the room, I know that God equips those He’s called and that He is always faithful. My job is to do my best and to trust that God will help me to bless those around me. When I’m bothered by my team’s or my own performance, I work hard to take inventory of what went wrong, but also identify what went right. I work to accept that falling forward is a part of progress and no one hits a home run every time. Sometimes triples and doubles get the job done.
