While Sen. Josh Hawley was first to earn headlines, his wife’s legal work may have a more lasting and harmful impact
Sen. Josh Hawley (R-Mo.) may always be remembered for raising his fist in solidarity with the pro-Trump protesters who were about to storm the United States Capitol on Jan. 6, 2021, followed shortly by the image of him running like a scared rabbit as he sought personal safety from the same mob.The insurrectionists were there to “hang Mike Pence” for accurately reporting the electoral vote in the 2020 Presidential election, and they were looking for House Speaker Nancy Pelosi, but Hawley might not have escaped their wrath in the heat of the moment.
It is possible that the senator's wife, Erin Morrow Hawley, may have more of an impact on our laws and policies. She is one of 70 attorneys who work for the Alliance Defending Freedom (ADF), a right-wing Christian public interest law firm, and she argued successfully for a nationwide ban on the abortion pill mifepristone before federal Judge Matthew Kacsmaryk in Amarillo, Texas.
Clearly, ADF filed the lawsuit in front of a friendly judge, who had been appointed to the bench by President Donald Trump after a career of arguing for similar causes. The U.S. Supreme Court has temporarily stayed Kacsmaryk's ruling on mifepristone over a strong dissent from Justice Samuel Alito, and will rule on the merits of the case in the near future. Erin Hawley and her husband both clerked for Chief Justice John Roberts, after graduating from Yale Law School, and ADF wrote the Mississippi statute which banned all abortions after 15 weeks of pregnancy, which led the Supreme Court to overturn Roe v. Wade in its recent Dobbs decision.
On its website, Alliance Defending Freedom claims a success rate of nearly 80% of the cases it litigates, and it champions many causes other than ending legal abortion. It raises $100 million in donations in a good year, and the family that owns the Hobby Lobby stores is a major financial contributor. If you shop at Hobby Lobby, you can figure that a few pennies from your purchase ended up in ADF coffers.
Indeed, Hobby Lobby was a satisfied client, since ADF won the decision allowing them to eliminate contraceptives from their group health insurance coverage. It would have violated their deeply held Christian convictions to pay for birth control for their employees, thus violating their First Amendment right of religious freedom. (The public domain photo above, from wikimedia commons, harkens back to the pre-Roe v. Wade era, when some desperate women would use coat hangers as a tool to self-abort.)
ADF describes its mission as “advocating for laws that respect God’s created order for marriage, the family, and human sexuality.”
Masterpiece Cakeshop, a business in Colorado, refused to bake wedding cakes for same-sex couples, citing the First Amendment, and ADF persuaded the Supreme Court to uphold their position against meddlesome state human rights bureaucrats. Similarly, Lorie Smith, whose Colorado business (303 Creative) designs websites for weddings, sought and obtained a decision that she need not violate her religious convictions by working for same-sex couples. No same-sex couple had attempted to employ her, but Smith was concerned that this might happen, and the Supreme Court was willing to rule preemptively in her favor.
Alliance Defending Freedom may be after a much bigger prize, comparable to overturning Roe. In 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have a constitutional right to marry. This decision, over a blistering dissent from Justice Alito, overturned the laws of a majority of states, including South Dakota.
Back in 2006, our voters passed a constitutional amendment defining marriage as a union of a man and a woman by a surprisingly narrow margin of 51.8%. The Obergefell decision nullified that outcome, and it appears that popular opinion on the rights of LGBT people has shifted considerably over the last 17 years.
On the other hand, the composition of the U.S. Supreme Court has also changed dramatically, primarily because of Trump’s three appointments in his one term. If Justices Brett Kavanaugh and Amy Coney Barrett vote to overturn Obergefell v. Hodges as they did Roe v. Wade, there will no longer be a right to same-sex marriage and South Dakota’s state constitutional prohibition will again be in force.
Addendum: Much of the information in my piece about Alliance Defending Freedom (ADF) was gleaned from an article in the New Yorker, October 9 issue, starting on page 28, by David D. Kirkpatrick. Jay Davis
Jay Davis is a retired Rapid City attorney
