Called Before the Court
An attorney raised in the Assemblies of God is at the forefront of the two most anticipated free speech and religious liberty cases before the U.S. Supreme Court this year.
Kristen K. Waggoner argued the appeal in Masterpiece Cakeshop v. Colorado Civil Rights Commission before the high court. She also served as co-counsel on National Institute of Family and Life Advocates v. Becerra. Decisions on both cases are expected near the end of the court’s term in late June.
Waggoner, 45, is senior vice president of the U.S. legal division of Alliance Defending Freedom, the nation’s largest organization protecting religious freedom and the sanctity of life. She is the daughter of La Vonne and Clint M. Behrends, superintendent of Cedar Park Christian Schools. The Cedar Park Assembly of God ministry in Bothell, Washington, has 1,700 students on five campuses.
“The best gift my parents gave me was raising me in an environment where the biblical principles taught at home were also taught in my Assemblies of God school and church,” Waggoner says. “I was taught that we live our faith not just on Sunday, but every day of the week.”
Behrends, 70, recalls that Waggoner, the oldest of his four children, had a life-changing experience at an AG summer camp as a 13-year-old girl.
“My dad talked to me as a young girl about how I needed to follow God’s purpose for my life and how that purpose should not just benefit me,” Waggoner recalls. At the camp, Waggoner sensed a calling from God to defend religious freedom. She wrote down the impressions, and keeps them framed in her bedroom.
Waggoner went on to attend Northwest University, an AG school in Kirkland, Washington, plus Regent University School of Law in Virginia Beach. After 17 years in a Washington state law firm, she joined the Scottsdale, Arizona-based Alliance Defending Freedom full time in 2013. Waggoner oversees all of ADF’s U.S. legal and communications work, including a team of nearly 100 as well as a litigation network of 3,000 affiliated attorneys around the nation.
Her highest profile case to date is defending baker Jack C. Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado.
“I don’t create custom designs for events or messages that conflict with my conscience,” Phillips says. “I serve everyone who comes into my shop. But creating a cake that celebrates a same-sex message conflicts with my faith’s core teachings on marriage.”
The case has been in the courts since 2012 — before same-sex marriage became legal in Colorado. The Colorado Civil Rights Commission decision in 2014 concluded Phillips violated the state’s public accommodations law by refusing to create a cake celebrating a same-sex wedding. Subsequently, the panel’s order required Phillips to stop making any wedding cakes. He lost 40 percent of his business and half a dozen employees. The Colorado Court of Appeals upheld the ruling in 2015.
Before the U.S. Supreme Court last December, Waggoner provided poised and reasoned responses to questions from combative liberal justices who unsuccessfully pressured her to admit that Phillips refused to sell any product to gays. Some justices opined that his refusal would create a hardship for the couple who couldn’t find another baker to accommodate them. They also repeatedly suggested the baker’s denial could result in racial discrimination down the line.
Nevertheless, Waggoner is optimistic for a favorable ruling.
The key to the outcome could be Justice Anthony Kennedy, who has written every major gay rights ruling issued by the U.S. Supreme Court, including the 2015 landmark Obergefell v. Hodges 5-4 decision that legalized same-sex marriage throughout the land. Kennedy seemed concerned that the baker’s convictions had been ignored in the debate.
“It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs,” Kennedy remarked during the proceedings.
Waggoner says if the court rules against the 61-year-old Phillips it would be an unprecedented blow to religious liberty and free speech.
“Tolerance is a two-way street,” Waggoner tells AG News. “If we want freedom for ourselves, then we have to protect freedom for those with whom we disagree. That’s all that Jack is seeking. Never in the history of this court’s jurisprudence has someone been forced to create artistic expression that violates his core convictions.”
Waggoner argues that a coerced message on a same-sex wedding cake is a violation of artistic free speech, which has been protected by the Supreme Court. She notes that dozens of cake designers in the area have openly advertised for same-sex weddings, so access isn’t an issue.
“The First Amendment prohibits the government from forcing people to express messages that violate religious convictions,” Waggoner declared before the court. “Yet the Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions.”
Making media rounds before arguing the case last December, Waggoner and Phillips went on The View, where they faced hostile grilling from some on the talk show’s panel. Waggoner calmly and cordially presented her case.
“As Christians we have to be willing to articulate why we believe marriage is between a man and a woman,” Waggoner tells AG News. “At the time, it felt like the proverbial lion’s den, but we couldn’t pass up the opportunity.”
The result of the Masterpiece Cakeshop case likely will have a significant impact on Barronelle Stutzman, owner of Arlene’s Flowers in Richland, Washington. Waggoner also is lead counsel in Arlene’s Flowers v. State of Washington.
In February 2017, the Washington Supreme Court ruled that Stutzman violated state laws when she declined to create floral arrangements for a same-sex wedding ceremony. The customer, who identifies as gay, has been a customer of Stutzman’s for almost a decade. The 72-year-old Stutzman faces the loss of not only her livelihood, but also her home because the Washington attorney general and American Civil Liberties Union sued not only her business but her personally as well. ADF has petitioned the U.S. Supreme Court to hear the case.
Waggoner — who has three children with her attorney husband, Ben — likewise is co-counsel in National Institute of Family and Life Advocates v. Becerra. ADF President Michael P. Farris argued that case before the U.S. Supreme Court in March. The organization is challenging a California law that forces pregnancy care centers to tell women how to obtain a free or low-cost abortion. As with Phillips, ADF is arguing that the government doesn’t have the power to force individuals and religious organizations to speak a message that violates their religious convictions.
In the meantime, if Phillips prevails in his case, Waggoner expects a potent cultural backlash. She anticipates that Phillips and ADF will be portrayed in the media as gay bashers. Waggoner notes that Phillips has employed gays and ADF wouldn’t represent a client who merely wants to deny service to gays and lesbians. She believes the case hinges on compulsory participation in a same-sex wedding ceremony.
“The gravest offense to the First Amendment would be to compel a person who believes that marriage is sacred, to give voice to a different view of marriage and require them to celebrate that marriage,” Waggoner told justices at the court.
Meanwhile, Waggoner’s father is grateful that his daughter has followed her calling.
“She is truly operating in her gifts and living out her faith in her vocation,” Behrends says. “The Assemblies of God formed who she is.”IMAGE - Kristen Waggoner still keeps the impressions she received from God as a 13-year-old girl in a frame by her bed.