Much of the public attention now focused on Judge Matthew Kacsmaryk, the Amarillo-based federal judge who is expected to soon outlaw mifepristone, the so-called abortion pill, has focused on the ways in which his political and religious beliefs have shaped his legal career. His fervent opposition to abortion arose as an issue during his confirmation hearings in 2019, as did his staunch opposition to same-sex marriage and his previous statement that transgender Americans were “delusional.” He isn’t a fan of birth control either: in 2015, as deputy general counsel for a Plano-based nonprofit law firm called First Liberty Institute, Kacsmaryk argued in an amicus brief that pharmacies should be prevented from providing contraception. Kacsmaryk’s time on the bench has only reinforced the view that he is an activist judge who allows his private beliefs to govern his legal opinions—and it seems that the antiabortion activists who venue-shopped to land the mifepristone suit in his courtroom would agree.
That courtroom now serves as a hub in a complex network that has deep roots in Texas but whose canopy has spread wide across the nation. First Liberty, where Kacsmaryk worked from 2014 to 2019 before joining the bench, has become one of the most influential groups in that ecosystem, pushing for religious beliefs and institutions to exercise greater influence over public policy. The firm’s ascendance speaks to shifts in the federal judiciary and in the U.S. Supreme Court’s interpretation of the “free exercise” clause of the First Amendment.
First Liberty calls itself “the largest legal organization in the nation dedicated exclusively to defending religious liberty for all Americans.” Some of its most famous cases include that of Melissa and Aaron Klein, who, citing their religious beliefs, refused to bake a wedding cake for a same-sex couple, and that of the Bladensburg Peace Cross, a World War I memorial in Maryland, the public maintenance of which was challenged as unconstitutional because it “excessively entangled the government in religion.” (First Liberty was victorious.) The firm represented Chick-fil-A when the San Antonio City Council refused to grant the fast-food chain’s airport concession because of its opposition to same-sex marriage. (Ever helpful, the Texas attorney general’s office joined that lawsuit, and in 2019 Governor Abbott signed the “Save Chick-fil-A” act.) First Liberty also successfully fought for the Kountze high school cheerleaders from 2012, defending their First Amendment right to put religious scripture verses on banners during football games.
Kelly Shackelford, the firm’s president, CEO, and chief counsel, founded First Liberty in 1997. A Baylor Law graduate and a former adjunct professor of law at the University of Texas, he has argued frequently before the Supreme Court. He has become a Fox News favorite and a political and professional ally of Ginni Thomas, the wife of Supreme Court justice Clarence Thomas. With his blond hair, chiseled cheekbones, and sky-blue eyes, Shackelford bears a slight resemblance to the actor Woody Harrelson, if Harrelson possessed the calm, confident mien of someone who believes he has God on his side.
At First Liberty, Shackelford has spent decades building a team of Texas political insiders. Tim Dunn, the Midland oilman who is sugar daddy to a vast network of right-wing leaders and organizations, including the Texas Public Policy Foundation, serves as the vice chair of the firm’s executive committee. A handful of lawyers in the firm have come from the office of the Texas attorney general, which has filed numerous amicus briefs in support of First Liberty cases. Hiram Sasser, First Liberty’s plainspoken executive general counsel, was previously Ken Paxton’s chief of staff. Jeff Mateer, the organization’s chief legal officer, resigned in 2020 as first assistant attorney general after accusing Paxton of criminal conduct. (Mateer also lost out on a federal judicial appointment after someone surfaced a 2015 speech of his in which he insisted that transgender children were a part of “Satan’s plan” and called the U.S. Supreme Court decision legalizing same-sex marriage “debauchery.”)
Citing the cases it has picked up and its staffing, Andrew Seidel, a legal scholar who has opposed the firm in several lawsuits, told me that “First Liberty is not in the business of religious liberty. It’s in the business of Christian supremacy.” That description flummoxed Sasser when I put it to him. “I don’t really know how that could be true, as we are representing a Muslim prisoner trying to get accommodations for Ramadan,” he told me, adding that First Liberty has also fought for a Chabad community that was blocked from building a community center and for a Native American sweat lodge that was forbidden to hold religious services on the premises of a U.S. Veterans Health Administration medical center. “I really don’t know how to respond to that,” Sasser added.
Indeed, First Liberty has represented members of many faith groups. But the vast majority of the cases the firm picks up swing right and Christian. The firm is currently representing Navy SEALS who sought a religious accommodation to avoid the military’s vaccine mandate, a postal worker who could not get excused from working on Sundays, a pastor who was not allowed to carry a concealed firearm in his New York church, and a justice of the peace who was issued a warning for not performing same-sex marriages. The firm argues for an interpretation of the First Amendment that challenges the establishment clause of the U.S. Constitution, which has long been interpreted as providing for the separation of church and state. Often its cases, particularly ones involving parental rights, go even further. “Now it’s not ‘Can states fund religious education’ but ‘They must fund it,’ ” says Mount Holyoke constitutional law professor Joanna Wuest, who studies the intersection of the conservative legal movement and issues of sexuality and gender.
The politics of right-wing aggrievement have helped boost the firm’s fund-raising. Its annual revenue has grown from $5 million in 2013 to $14.8 million today, with contributions comprising 98 percent of the total. The firm’s CFO, David Holmes, previously served as a “management consultant specializing in high net worth investors,” which could help explain how the names of some donors from 2020 are hidden behind charitable funds run by Schwab ($375,000) and Fidelity ($305,469). First Liberty has also enjoyed the support of the right-wing Christian Community Foundation, also known as Waterstone, which donated $104,000 in 2020. Closer to home, the Lupe Murchison Foundation, of Dallas, contributed $125,000 in 2019.
In addition to the usual slate of attorneys, paralegals, clerks, administrators, et cetera, First Liberty employs staffers dedicated to spreading the gospel—and to spreading the word about First Liberty’s good works. To do so, it has staffers devoted to marketing, graphic design, and advertising and a team devoted to ministry—all operating under the organization’s tax-exempt status as a 501(c)(3) nonprofit (a category of organization that is required by law to avoid involvement in partisan politics). For added convenience, many of the case histories on the website are accompanied by a prominent “donate” button, on which readers can click to add their tax-deductible contributions. Such tactics are not unusual, Sasser told me, comparing his firm to civil rights organizations such as the NAACP and the ACLU.
One case the firm took up helps explain both how it has raised money and how its influence has spread since the Trump era. In 2008 Joseph Kennedy, an ex-Marine, was hired as an assistant football coach in his hometown of Bremerton, Washington. Popular and charismatic, Kennedy believed fervently that God had led him into coaching, and, over time, he moved silent prayers into a more public forum. He began giving “full-blown religious speeches,” according to a subsequent opinion by the U.S. Court of Appeals for the Ninth Circuit, on the fifty-yard line after every game, which drew an increasingly large crowd of players from both teams and spectators. As the postgame crowd grew, the school board asked Kennedy to stop praying publicly, because, while the coach was not requiring players to join him, they may have felt obligated to do so, which could have clashed with the Supreme Court’s decades-old ban on school-sponsored prayer in public schools. “The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship,” Justice John Paul Stevens wrote for the majority in a similar case in 2000.
Kennedy agreed to pray privately, but crowds continued to grow around him, and, well, he couldn’t help but pray alongside them. So, in the fall of 2015, the coach hired First Liberty, which began writing letters to the school district in October defending his actions. The case turned overnight. “First Liberty got involved and it becomes this massive media blitz,” says Seidel, who wrote extensively about the case in his book, American Crusade: How the Supreme Court is Weaponizing Religious Freedom. “They go on national TV and Fox News and claim a huge violation of the coach’s rights and religion.” School administrators began receiving death threats. Satanists demanded time on the field for prayer. Then–presidential candidate Donald Trump eventually got involved, mangling the facts of the case in an otherwise supportive tweet: “Support Coach Kennedy and his right, together with his young players, to pray on the football field. Liberty Institute just suspended him!”
Kennedy was put on administrative leave in late October. When his performance evaluation came up in November—seven years after he’d been hired—the school recommended against renewing his contract, and he wasn’t rehired in January. He sued for $5,304, the amount of his stipend for coaching, alleging that his civil rights had been violated under the First Amendment and Title VII of the Civil Rights Act of 1964. No fewer than six First Liberty lawyers represented him. On Fox, Sasser faithfully kept the case in the news, once telling a reporter that Kennedy “was fired for praying silently by himself several minutes after the game.”
The ensuing lawsuit, Seidel says, “was like nothing I’ve ever seen in my life.” The Supreme Court declined to take up the case in 2019, but before that, First Liberty had followed every lower-court defeat with an appeal. “It’s not in their interest to solve these issues as much as to fund-raise on them,” says Seidel. “They fearmonger by keeping their cases alive no matter what.” In denying a rehearing in 2021, one of the judges on the Ninth Circuit court wrote that a dissenting colleague had “succumbed to the Siren song of a deceitful narrative of this case spun by counsel for the Appellant. . . . That narrative is false.” Says Seidel: “If a judge wrote something like that about me, I would retire.” First Liberty took a different approach. It waited—and appealed the case again to the Supreme Court in September 2021.
By that time, conservative justices dominated the court. It decided 6–3 in favor of Kennedy on June 27, 2022, and just last week, on March 8, Coach Kennedy got his old job back. “We are thrilled that Bremerton and Coach Kennedy are back together and we hope they go undefeated,” said First Liberty’s press release on his rehiring. After seven years of retrying the case and fund-raising off it, First Liberty had won.
Meanwhile, the nation awaits Kacsmaryk’s ruling on the legality of the abortion pill. Regardless of the outcome, First Liberty may be the biggest winner, with a decision from its former staffer making the firm a victor, or a martyr for the cause. As Kelly Shackelford told members of televangelist James Robison’s church in 2020, “Every American is about to have more religious freedom than they’ve ever had in their entire lifetime. And I think we’re just at the beginning of this.”