Cross posted at:

The Christian legal advocacy group — Alliance Defense Fund — has submitted a memorandum to the United States Senate Judiciary Committee (PDF). Therein, they “explain” their opposition to the confirmation of President Obama’s most recent nominees for top level positions in the Department of Justice:

  • David Ogden, Deputy Attorney General
  • Elena Kagan, Solicitor General
  • Dawn Johnsen, Office of Legal Counsel
  • Thomas Perrelli, Associate Attorney General

ADF being ADF, I am reasonably certain that they would prefer the appointment of legal giants like Monica Goodling and others from madrassahs like Regent and Liberty law. Below is a selected summary of some of their objections in brief.

David Ogden

Mr. Ogden has been a major defender of sexually
oriented businesses and organizations. He has repeatedly represented major
organizations within the pornography industry-including Playboy Enterprises … This industry is unique in
its extreme degradation of women and disregard for human relationships.

Mr. Ogden has been a staunch defender of the First Amendment. Ironically, that is what ADF, and others from the extreme Christian right are inaccurately portraying as at risk. To them, the First Amendment should provide selective rights. At the core of every puritan is a desire for one group to control what the rest of us see, hear and read.

Mr. Ogden has also been a staunch supporter of abortion, seeking to
eradicate any state or federal law protecting unborn children or educating women
about the harms of abortion.

No. Mr. Ogden is not a supporter of abortion. Mr. Ogden is a supporter of freedom of choice which is the law of the land. Something that the “lawyers” at ADF conveniently and selectively forget.

Mr. Ogden has also been an unwavering advocate for homosexual activists.
… he asserted that “homosexuality is a
normal form of human sexuality.” He also argued, despite abundant evidence to the
, that “the children of [same-sex couples] . . . demonstrate no deficits in
intellectual development, social adjustment, or psychological well-being as
compared to children of [opposite-sex couples].”

Again — semantics. Mr. Ogden supports GLBT civil rights which has nothing to do with supporting activism. I note that ADF does not even attempt to refute Ogden’s views on sexuality. Nor do they cite any of the “abundant evidence to the contrary” with respect to gay adoption. The research that is published in peer reviewed scientific journals supports Mr. Ogden’s point of view.

Mr. Ogden supports the use of “strict scrutiny” for equal-protection
challenges brought by persons involved in same-sex relationships. He has asserted
that “gay men and lesbians constitute a discrete and insular minority deserving
strict equal protection scrutiny.”

That is supported by courts in California, Massachusetts, Connecticut and (to some extent) New York. That was the recent conclusion of the Fifth US Circuit Court.

Elena Kagan

Ms. Kagan has shown open hostility towards the military’s “Don’t Ask,
Don’t Tell” policy, which is favored by a majority of Americans and, more
importantly, by a majority of military servicemen and women.

First of all — So what? They cite a 2007 Gallup Poll (which is inconclusive within the MOE). A more recent ABC poll concludes that 78% of Americans support the right of gays serving openly in the military. They go on to cite a poll in Military Times. What they fail to mention is the conclusion by the same poll that there is less resistance than previously existed towards racial and then gender integration. Furthermore, we just had an Evangelical in the White House who expressed a complete disdain for crafting policy around poll results.

Dawn Johnsen

… She was a staff counsel for the
ACLU, and served as Legal Director for the National Abortion Rights Action League
(“NARAL”). NARAL has adopted extreme, absolutist positions on abortion,
opposing any attempt to restrict abortion on-demand.

Again, Roe v. Wade is res adjudicata. The issue is settled. Freedom of Choice is not an “extreme” position.

Thomas Perrelli

While in private practice, Mr. Perrelli represented Terri Schiavo’s
husband and worked closely with the ACLU to deprive Ms. Schiavo of food and
water. His intimate involvement in that case and tireless efforts to ensure Ms.
Schiavo’s death show a calloused disregard for the sanctity of all life, including the
lives of disabled individuals.

I find it astonishing that they are not embarrassed by the whole Terry Schiavo saga. The radical Christian right inserted themselves into a private family matter. The efforts to thwart Mr. Schiavo’s efforts to carry our his wife’s wishes were misguided and cynical.

In fostering Ms. Schiavo’s death, Mr. Perrelli advanced a legal position
rejected by 80% of Americans. A poll completed after Ms. Schiavo’s controversial
death found that 80% of likely voters said that a disabled person who is not
terminally ill or in a coma should not, in the absence of a written directive to the
contrary, be denied food and water.

Not surprisingly, ADF fails to mention that the autopsy concluded that Terry Schiavo was in an irreversible vegetative state. That was the opinion of medical professionals at the time of her death.


ADF and its radical right wing Christian supporters oppose these nominations on religious grounds. As lawyers, they should know that we are not a theocracy. ADF should have a better understanding of the establishment clause as they are essentially attempting to impose a “religious test” which is strictly prohibited by our Constitution.