In America, separation of church and state has long been honored more in the breach than in the observance. Nonetheless, it’s still shocking to see the religious right take a leading role in disseminating the Big Lie and working to overturn the 2020 presidential election.

Last month, the New York Times revealed that attorney Michael P. Farris, chief executive of the ultra-conservative Alliance Defending Freedom, spearheaded Texas’s preposterous Supreme Court election challenge alleging that election procedures in five swing states were unconstitutional and thus their votes must be tossed out. The article goes some way to redeeming the paper’s failure to acknowledge the Christian right’s role in advancing the Big Lie about election fraud, notably in an October 2 profile of attorney John Eastman, author of the infamous How to Coup Memo, who was described as a “little-known but respected conservative lawyer” despite his long history of advocating racist and homophobic policies. 

In fact, Eastman is chairman of the board of the National Organization for Marriage, a prominent anti-LGBT Christian group; until last month, he led the separation of powers practice group at the powerful Federalist Society; he founded the Center for Constitutional Jurisprudence as part of his role at the Claremont Institute, an influential right-wing think tank that has promoted numerous racist activists and sponsored a discussion about ending American democracy. Until his star turn advocating for the overthrow of democracy, Eastman was also a dean at the Chapman University School of Law

He’s certainly not “little known,” and to the extent that Eastman is “respected,” it may have more to do with the media’s refusal to identify bigoted extremists as such for fear of being accused of bias, a posture that has allowed fringe lunatics like Eastman to maintain the veneer of respectability.

In Eastman’s opinion, Vice President Kamala Harris should not be considered a U.S. citizen because her parents weren’t citizens when she was born, a view no different than the earlier “birther” smear against former president Barack Obama. He has also publicly stated that he supports Ugandan laws imposing life sentences for some people accused of being gay or lesbian, and criminalizing advocacy for LGBT rights.

The far-right Christian legal establishment played a leading role in spreading misinformation about the 2020 election and plastering the courts with frivolous election lawsuits. The Times reports that Farris enlisted the help of Mark D. Martin, a former chief justice of the North Carolina Supreme Court and the current dean at Regent University School of Law, a Virginia-based evangelical college founded by Religious Right figure Pat Robertson.

Using his prime position atop the lavishly funded ADF, Farris was able to shop around to GOP state attorneys general a draft lawsuit recycling nonsensical claims which had already been rejected by both state and federal courts.

Farris’s theory was that vote tabulation procedures in the defendant states were so sloppy that there was nothing for it but to toss out the ballots from Michigan, Georgia, Pennsylvania, and Wisconsin and allow the states’ Republican legislatures to award their Electoral College votes to Donald Trump. Note that there was no actual fraud alleged, just a pile of gobbledygook about signature verifications and ballot drop boxes which somehow necessitated disenfranchising upwards of 21 million American voters across those four states.

Farris hoped to vault his suit directly into the Supreme Court’s lap by exploiting that body’s original jurisdiction over interstate claims. While most plaintiffs have to demonstrate a federally cognizable cause of action and work their way through trial and appellate courts, one state’s action against another automatically begins at the Supreme Court. All Farris needed was a single state attorney general to put his/her signature onto the pre-written legal brief.

The problem was that the lawsuit was rank garbage, and even Republican AGs didn’t want to be associated with it. The Times and researchers at Mount Holyoke filed freedom of information claims with several states and managed to shake loose emails documenting the reticence of AGs in South Carolina and Louisiana to take the lead on this.

“We have been having constant conversations with other state AGs and state AG staffs,” [South Carolina AG Alan] Wilson wrote in a Dec. 3 email, also obtained via an open-records request. “Had a follow-up conversation with Mike Farris yesterday morning prior to him flying back to Texas. Mike was very accommodating and knowledgeable about the legal issues raised in the pleading.”

But Mr. Wilson raised objections to the legal arguments with Mr. Farris, he said, questioning whether one state had the right to sue another state over election procedures or what it might be reasonable to ask the Supreme Court to do as a “remedy” for such a legal dispute, given that it involved the outcome of the presidential election.

“There were other issues that have been raised that have been difficult to overcome but our staff along with other states are still working through the issue,” Mr. Wilson said.

Enter Texas AG Ken Paxton, the thrice-indicted lawyer accused by his own staff of trading political favors for campaign contributions. Paxton had already used his office to file a mountain of bad faith claims against the Obama administration on everything from immigration to health care and he had no objections to becoming the face of an incoherent lawsuit. Just a few days after Farris reached out, Paxton filed a complaint which bore some striking similarities to Farris’s proposed suit.

The opening paragraph from Paxton’s suit is identical to Farris’s histrionic draft:

Our Country stands at an important crossroads. Either the Constitution matters and must be followed, even when some officials consider it inconvenient or out of date, or it is simply a piece of parchment on display at the National Archives. We ask the Court to choose the former.

Indeed the cases rely on nearly identical reasoning, arguing that the value of Texas’s “legitimate” votes was diluted by getting mixed in with all those “illegitimate” swing-state votes, which supposedly violated Due Process, Equal Protection, and the Electors Clause. For good measure, Paxton dumped in another 50 pages of debunked fraud allegations, presumably in the hope that that quantity could overwhelm quality.

As Law & Crime reported, lawyers in the Florida AG’s office rolled their eyes at Paxton’s gambit. Deputy Solicitor General Christopher Baum called it “Batshit insane,” and noted that the Texas Solicitor General hadn’t signed onto the complaint as would generally be expected. “Must be the only guy in the Texas AG’s front office who didn’t quit/wasn’t fired for alleging that Paxton committed crimes,” he added.

But despite their private conclusion that the lawsuit was junk, the state attorneys of Louisiana, South Carolina, and Florida joined 14 of their counterparts in an amicus brief applauding Paxton’s supposedly unimpeachable logic. 

Alas, the Court was unmoved, with seven justices dismissing it out of hand for lack of standing, the exact argument that had made the lawsuit unappealing to the GOP attorneys general initially. Justices Alito and Thomas said they would have taken the case for procedural reasons but “would not grant other relief,” i.e. they would not have thrown out the votes.

The failure of the GOP state attorneys’ lawsuit at the Supreme Court was the last of over 50 humiliating defeats that Trump and Republican lawyers received in multiple jurisdictions. After the loss, Eastman’s coup machinations became the penultimate desperate attempt of the disgraced president to cling to office.

By late December, Eastman marched into the Oval Office with his cockamamie theory that the vice president has absolute discretion to reject any state’s electors, converting what had been understood for two and a half centuries as a ministerial obligation into a dictatorial power.

Perhaps this stance is unsurprising from a person who believes that God is on his side and the country belongs to men like him. And perhaps if the fact that Eastman was a radical crank were more widely publicized, his idiotic fantasies about electoral certification would have been discounted as the rantings of a fool like Rudy Giuliani, who has become untouchable since the media started reporting accurately on him. Farris at least had the decency to hide his role in the debacle and denies that his employer had anything to do with his proposed legal brief.

We’ll never know if accurate reporting on these figures would have prevented the spread of their disastrously ill-conceived legal theories. If Eastman and Farris were regarded as poorly as Sidney Powell, would their ideas about election fraud have persuaded so many public figures to hitch their wagon to Texas’s harebrained brief? Would thousands of crazy people have showed up at the Capitol shouting to “Hang Mike Pence” for doing his duty as prescribed by the Constitution?

Actions have consequences. And the consequence of treating dogmatic radicals like mainstream intellectuals has been catastrophic for the country. It is long past time to start treating these fringe figures like the cranks they are.