The Story of This Supreme Court Term Is Already on YouTube

This article was republished in partnership with Balls and Strikes.^[1]

The Supreme Court begins its new term next week, and the first blockbuster case the justices will consider is about “conversion therapy,” a dangerous pseudoscience that aims to change a person’s sexual orientation or gender identity. About half of states have banned^[2] licensed mental health care providers from subjecting minors to the practice, which experts^[3] say^[4] lacks scientific credibility and exacerbates the risks of depression, anxiety, suicidality, and other mental health challenges in patients. The legal question in the case, Chiles v. Salazar^[5], is whether these bans violate the First Amendment by restricting counselors’ free speech rights to urge LGBTQ+ kids in their care to simply try harder to be straight, cis, or both.

But the most revealing argument in Chiles won’t take place next Tuesday inside the Supreme Court building, after Chief Justice John Roberts reads off the case name and number and invites the petitioner’s lawyer to the lectern to begin. The most revealing argument is online already, freely available to watch on YouTube.

This clip was produced by the Alliance Defending Freedom, the conservative activist group that specializes^[6] in bringing cases to the court’s ever-expanding Christian supremacy docket. It is an introduction to their client and the petitioner in this case, Kaley Chiles, a Colorado counselor and devout Christian who seeks to help clients live their lives “more in line with who God created them to be.” Over soaring music and B-roll of her gazing off at the mountains, Chiles describes Colorado’s 2019 ban^[7] on conversion therapy as an attempt by lawmakers to “impose their own values” on her and her clients about “which goals” they can set.

“When I am actively having my speech chilled, then I can’t be transparent and honest and genuine with my clients,” says Chiles, in another^[8] reel put together by the ADF. “And that’s a real disservice to them.” Here she is standing in front of the Supreme Court building as an ADF flack reminds viewers that “everyone should have free speech in this country” and expresses hope that Chiles’ case will “bring that forward to the court one more time.”

Chiles’ putative concerns are, for a number of reasons, misleading, unreasonable, or some combination thereof. First, Colorado’s ban applies only to licensed counselors, which means that Chiles’ religiously inclined clients who do want conversion therapy are as free as ever to seek it from their religious leaders. (As the state notes^[9] in its brief, the ban imposes no restrictions on her ability to discuss conversion therapy with her clients, to criticize the law, or even to refer her clients to ministers who are not subject to it.) Second, the ban prohibits counselors from trying to “change” their patients’ sexual orientation or gender identity, and Chiles has explicitly^[10] disclaimed any desire to do so—which, if true, raises the question of why she is so passionate about challenging the ban in court in the first place.

Finally, even in conservative culture war–adjusted terms, the factual evidence for many of her claims is dubious, to put it generously. In Chiles’ cert petition^[11], for example, the ADF argues that state-level bans on conversion therapy actually harm teens by limiting their access to mental health care. Among the sources it cites for this proposition is—I am not making this up—a handful of pseudonymous responses^[12] to a year-old Reddit post.

Chiles’ arguments, in other words, are barely “legal” arguments, in any traditional sense of the word. But what the activists leading the conservative legal movement right now understand is the power of telling their stories on their terms—not only to the justices, but also to anyone with internet access who is outraged by the continued existence of gay and trans people, and/or who believes that discrimination against Christians remains the defining civil rights crisis of our time. For as often as the justices insist that the court’s work is not “political,” it is telling that conservative litigants are now supplementing their briefs with de facto campaign ads, complete with soft-lit interviews and generous production budgets.

The elevation of ostensibly narrow, technical legal questions to fodder for well-funded PR campaigns probably does not happen without the confirmation of Justice Amy Coney Barrett in 2020, which yielded a six-justice conservative supermajority with a clear policy agenda and a demonstrated willingness to set aside institutional norms in order to pick winners and losers. Since then, in Chiles and cases like it, conservative lawyers have not limited themselves to trying to persuade the justices that the traditional components of The Law—the Constitution, statutory text, Supreme Court precedent, and so on—are actually on their side. Instead, they are framing the real-world stakes of each case in ways that allow the conservative justices to draw only one conclusion: the one that affirms their shared worldview.

To their credit, I guess, the Alliance Defending Freedom has been running this playbook for a long time. In 2012, a Colorado baker named Jack Phillips refused to make a wedding cake for a same-sex couple, citing^[14] his refusal as a “cake artist” to celebrate “any marriage that is contrary to his understanding of biblical teaching.” Rather than abide by the Colorado Civil Rights Commission’s order that he, as the proprietor of a business open to the public, provide wedding cakes on a nondiscriminatory basis, Phillips linked up with the ADF and sued, pitching himself as a simple man of faith hounded day and night by impious, amoral bureaucrats. With the ADF’s assistance, his case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, made it all the way to the Supreme Court five years later.

“How did I come to love art? I’ve just always drawn,” says Phillips, in this promo video put out by ADF. As he pivots to recounting the injustice to which he was subjected, his voice breaks a little: “Now, I don’t get to do that.”

The video goes on to describe Phillips’ fight “to create art in accordance with his convictions,” and the “toll” that his refusal to bake wedding cakes for LGBTQ+ clients has taken on him. Strangely, the toll of a status quo that allows people to ignore public accommodations law in order to discriminate against minority groups does not come up.

ADF lawyers were also behind 303 Creative v. Elenis, a Colorado website designer’s challenge to a state law that might hypothetically require her to someday make wedding websites for same-sex couples. In this clip, Smith describes her calling “as a Christian artist” to “create messages that glorify and honor God,” and her dismay that the state was “forcing” her to “celebrate messages about marriages that are inconsistent with my faith.”

“This case is not just about Lorie Smith and 303 Creative,” she says, over a montage of wedding service providers getting ready for their next gig. “This case is about all Americans. We must be free to live and work in alignment with our beliefs.” If you watch closely, you can catch a cameo here from Jack Phillips, toiling away on a wedding cake, presumably after he vetted the purchasers to ensure that their marriage qualifies as sufficiently biblical.

As in Chiles’ case, there were open questions^[15] about Smith’s bona fides: When she filed her lawsuit in federal court in 2016, she was not in the business of creating any wedding websites, regardless of the composition of the couple, which made her asserted “injury” speculative at best. In 2017, Smith’s lawyers at the ADF produced a web submission form from several months earlier that purported to be a same-sex couple’s request that Smith design them a wedding website. But the contact information on that form matched that of a San Francisco man who was married to a woman, and who later told^[16] the New Republic’s Melissa Gira Grant that he hadn’t submitted the form, and had no idea what she was talking about.

None of these factual discrepancies mattered to Justice Neil Gorsuch, whose majority opinion^[17] in 303 Creative sympathized at length with the plight of Smith and other creative professionals who want to adhere to their sincerely held religious beliefs in an increasingly secular society. “Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance,” he wrote. “But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.” The upshot here is that the First Amendment protects acts of illegal discrimination, as long as the perpetrator remembers to wax rhapsodic about the transformative power of their art first.

Presumably to the chagrin of the ADF, perhaps the most egregious misrepresentations^[18] of the record in a recent “religious freedom” Supreme Court case came from a different Christian activist group: the First Liberty Institute, which in 2022 sought to vindicate high school football coach Joe Kennedy’s right to lead students in a postgame prayer at the 50-yard line. Below, you can watch Kennedy in conversation with a First Liberty staffer, sharing the heartwarming story of how he met his wife and reminiscing about the joys of imbuing his players with “discipline,” “character,” and “mental toughness.” The music swells further as he reflects on how crushed he was to lose his job over what his lawyers called^[19] a “silent or quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.”

As Justice Sonia Sotomayor detailed in her dissent^[20] in Kennedy v. Bremerton School District, in reality, Kennedy’s private, optional, unobtrusive team prayers were none of these things: He often made them surrounded by large crowds of students, some of whom felt compelled to join so as not to miss out on playing time, and the media circus Kennedy created became so disruptive that the team’s head coach quit after the season because he feared for his safety. Writing for yet another Supreme Court majority, though, Gorsuch was captivated by the story of a noble small-town football coach villainized for courageously living out his Christian faith. “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike,” he wrote.

I have my own theories about which sitting Supreme Court justices are the most online, and for what purposes^[21] they most often use the internet. I also think there is good^[22] evidence^[23] that these days, at least some of the conservative justices who present as respectable lawyers are as steeped in the right-wing media ecosystem as your average Jan. 6 rioter.

But for the ADF and organizations like it, whether the justices literally subscribe to their YouTube channels is less important than building a shared cultural understanding within the conservative movement about which petitioners are good and righteous, and thus entitled to the law’s protections, and which petitioners are bad and godless, and thus not. By centering characters with whom the conservative justices can readily identify, cases like Chiles v. Salazar reinforce the notion that in today’s America, conservative Christians are the real victims of state-sanctioned persecution. These slickly produced infomercials bolster technical legal arguments by humanizing the real-world heroes who are humbly asking the court for relief—and, at the same time, quietly glossing over substantive problems with the cases that might otherwise sink them in a hurry.

This is not how the law is supposed to work—at least, not at an institution whose members swear an oath to “faithfully and impartially” discharge their duties “without respect” to the parties before them, and who spend every summer on the lecture circuit issuing tut-tutting reminders that the work of a Supreme Court justice is neither political nor ideological. But when the court is controlled by a conservative supermajority, organizations like the ADF and First Liberty know that their audience might never be friendlier than it is right now. All they need to do is tell another story their fellow ideologues want to hear, and trust Neil Gorsuch and company to once again lap it up.^[28]

Sign up for Slate’s evening newsletter.