What To Expect In 2020 – With David Barton, Part 2: Today we share part 2 of a special session from the ProFamily Legislators Conference. You will hear how the climate in the courts of our nation is more conservative than it has been in several decades. In fact, we are now a position to have some major pivotal victories. Tune in to learn more of the exciting details!

Air Date: 01/01/2020

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith and the Culture

Rick:

Welcome to the intersection of faith and the culture, it’s WallBuilders Live where we’re talking about today’s hottest topics on policy, faith and culture always from a biblical, historical and constitutional perspective. My name is Rick Green, I’m America’s Constitution coach, usually here with David Barton, America’s premier historian and Tim Barton, national speaker and pastor.

But today, it’s just going to be David, the whole program. We’re going to kick off, actually, we’re going to pick up on what we kicked off with yesterday which is his presentation on what to expect in 2020. Now, he gave this just a few weeks ago at the ProFamily Legislators Conference.

If you missed yesterday’s program which was the beginning of the presentation, you can get it right now at our website wallbuilderslive.com. While you’re there, be sure and click on that contribute button, make a good donation so that we can continue this programming and we can continue to preserve America’s constitutional republic. Let’s pick up with David Barton from yesterday where he was speaking on, “What to expect in 2020.”

David:

When you ask them, what is socialism? It comes to two words. It means sharing. Who’s not a sharing… I’m a socialist if sharing means socialism, I’m a socialist. But that’s not the definition, but that’s what they’re told it is. It means sharing with others. And the other things that means being social. I like Facebook. I like social media. I’m a socialist. No, that’s not what it is. But that’s what people thought that it was.

Accurate Definitions

So we can react to the 41%. Or we can say you know what, if we simply educate about definitions, there already on our side, they don’t want government regulation. They just didn’t notice what socialism was. So that’s where if you get the right kind of information, it really affects the way you move forward with your strategies and your tactics as well.

So we do a lot of polling work. George does that for us. Once we get polling work, it helps us with messaging, knowing how to present things. What are words that just set people off that I didn’t intend to set them off? I just said a word that I didn’t know that was a word that set them off. So you tried to find that work on messaging. Within that, networking is really key.

We network with legislators. Kevin called a bunch of you a few weeks ago because we had a Supreme Court case coming up and we wanted state legislators to sign on that Supreme Court case. I think we’ve got 131 state legislators signing on, I’ll show you about that case in just a moment what is for, what’s doing what the landscape is with it. But we network with legislators and because of that, we’ve got great relations with so many of the legislative groups. In CSL and Alec, WallBuilders Conference, the council state governments, these are probably the four largest groups that we know of legislative bodies. Each has a little difference, you know, one is kind of a bipartisan group and one is more conservative and we tend to be more ProFamily Christian, Judeo Christian, so they’re all four different, but we work with all four and all four are cooperative.

Informed Consent

In the same way, we work with legislators with specific goals in mind, for example, to propose legislation. One of the things that we can look at is we need and I’m just giving a hypothetical, we need a bill passed that calls for informed consent or whatever on abortion, but we need it passed in the 10th Circuit, Federal Circuit and see here’s the way it works.

For the Supreme Court to pick up a case and bring it to the court, it has to have competing circuits that have reached different decisions. We look over here and say that, you know, we’ve got five circuits and they’ve all reached the same conclusion, well the 10th Circuit with 8th or whatever is the most conservative circuit, we got to find a State in that circuit that will pass the same bill because that circuit will uphold it and now we’ve got competing circuits, now we get to the Supreme Court. And we go to the legislature and they say, wait a minute, we can’t pass that because all these five Federal Circuits over here for all struck it down. Yeah, I know but we need you to pass it and so trying to convince all other legislators, we need to pass something, some is struck down in every other court. That’s a hard thing to do. Except from a strategic standpoint, we need that passed in this district right here so that these judges will give it the ruling that we know we’re going to get, so we get, so all make sense.

Urging the Court to Reconsider

So part of this, if you understand that this is not just every other court has struck this down, yeah they have, but this one is not going to be struck down in the 8th or the 10th circuit or whatever. So part of it is sometimes we need legislation proposed so that we can get a vehicle to get into the court so the court will reconsider and have a chance of striking down. And that’s much more probable now than it’s ever been because of the fact that as of this week, we now have 158 new federal judges to this week.

Now, two of those are… With those federal judges, when Trump came into office, I knew he was so much better than Hillary, there was no question about it. It was my hope because there’s no evidence of anything judicial in his background except from business suits he’s been involved with. It was my hope that at least half of the judges might be good. I knew if Hillary got in, it is going to be 90% were going to be bad. So my hope was that half would be good.

I will tell you, 95% or more have been really, really super good. I’ve got a bunch of personal friends now sitting on federal court… I have had Circuit Court of Appeal, federal circuit Judges bring their staff to WallBuilders for us to train them and give them training on. It’s just I never imagined that whatever happened where that we get those kind of Judges.

A Better Crop of Judges

So there’s been two or three bad nominees, but people like Mike Lee out of Utah, Ted Cruz out of Texas, others, Josh Hawley out of Missouri have gone and opposed the president in the Senate for that Judge and the president to his credit is pulled that judge back, taking them off and so we have a better crop of Judges and we’ve ever, I didn’t think I’d ever be able to say this, but out in the 9th Circuit Court of Appeals and I did say circus, I’d say that intentionally because that’s a crazy group out there. Out of the 9th Circuit in the last two months, we have won a Second Amendment case in the 9th Circuit and we’ve won an immigration case in the 9th Circuit.

Because see, before Trump was there, the number of Judges there was 13 Democrats to 3 Republicans. It is now 9 Democrats to 7 Republicans. And so since federal courts go with 3 Judge Panel, we’ve got a lot of combinations now they’re coming up with conservative Judges… So we’re seeing changes.

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Networking Legislators

David:

So we now have opportunities to get things in the federal courts that five years ago would have been struck down, but they’re not necessarily being struck down now. We’re having wins we’ve never had. That’s why another term of Trump, if we do this to Judges, I mean Trump has now pointed more Circuit Court of Appeal Judges than any other president in the history of the United States, which is good stuff.

So that’s why sometimes we need to propose stuff, because we have a climate now in which we can do that. At the same time, there’s times we need to support as we did in this where we’re asking legislators to sign on to a brief. So that’s part of what we do, we network legislators. But we also network State groups and we have connected and we now have scores and scores and scores of the state groups who have partnered with us and willing to work with this stuff and have helped us already the number of issues. If we get something done, we can pass it on these State groups and they’re able to move it forward.

So there’s a lot of networking that goes on. Everything right now centers around these guys. These are the 9 that will make the decision whether we’re going to alter these policies I’ve been talking about. What we have to do now is get cases in front of these guys. If we can get cases in front of them, because we have Calvin on Gorsuch, we’re now in the best position we’ve been in 35 years to start making some wins.

Another Supreme Court Justice

With Kennedy, the court was split conservative Judges to four and a half, liberal judges there’s actually 4:4 with one big squish right in the middle. That was Kennedy. Now it’s about 4.8-4.2 Rob which is not as strong as we would like, but 80% of the time, he’s on our side. So we don’t want everything we’d like, but we’re winning more but. If another Justice goes down and if Trump puts another Supreme Court Justice in like Gorsuch or Kavanagh, then you’re looking at a real different scenario. It’s 5.8-3.2 and now we start winning cases that we haven’t been able to win. So we’re really, really close to having a safe, much safer margin to be able to do some stuff because the guys we got on the court are much more willing to get the feds out of this and give it back to the people on the states. So this is where we have to work.

Now, dealing with that, okay, with the school prayer, religious expressions issue, the case that was decided June of this year, you know, we’re talking now back five months was the case that dealt with the Bladensburg cross, memorial cross and that’s the one that we had that this is Kelly Shackelford argued this and we won this case back in June. But here’s the deal.

The Lemon Test

The lemon v. Kurtzman case, I mentioned that there were so many cases coming to the court that the court said, we got to come up with the test on how to decide, what’s constitutional not. So in the Lemon test, it says, a religious activity in public is constitutional if the primary purpose of that religious activity is secular. We can’t win a single case under that. You can’t show me any religious activity where the primary purpose is secular.

Well, the world war one moms, the 49, they got killed there in St. George County. The world war one moms in 1919 erected that cross and that’s the secular purpose. Well, they could have put up a pyramid or a square cube or a globe or an orb or anything, they didn’t have to put up a cross. The primary purpose of a cross is not secular. It’s okay to have a war memorial, it just can’t be in the shape of a cross. So what happened was the 4th Circuit Court of Appeals came down and said, you know, we hate this but under what the Supreme Court is given us, we have to say that the Bladensburg cross has to be demolished and torn down. You got to tear down World War Memorial.

And the court that we don’t like that, because you see the 4th Circuit is also what’s in charge of Arlington Cemetery. And if you have to take down crosses there, there’s two crosses. Now, it wouldn’t take down the individual crosses on a soldier’s grave. It would take down the memorial crosses and there’s two big ones in Arlington Cemetery Latin cross and others that are like this and so they’d all have to come down.

Polling

So what we’re hoping is the Supreme Court comes back and says, you know, the Lemon test is a real lemon, we need to get rid of this thing, it does not work. And so the court did not directly strike down the Lemon test, but they gave us a new test which had the effect of striking down.

But to know how to argue this case, we did polling at that point in time. Because we want to say, alright, what are the people thinking, what’s the court thinking? How do we argue this to the court in the briefs arguments? How do we do the media surrounds us? And so we did a lot of polling on where America is a religious place, religious liberties. We found that only 8% of Americans wanted that cross torn down. So it’s real easy to say, you know, only 8%, is the court going to go with the 8% against the 92%? And so it’s the court does not like being put, except for Justice Kennedy, does not like being put in the place of making radical changes in a quick period of time. So all this polling was done, I’m going to share the polls with you. My guys will put out the polls here a little bit, we’ll show you what happened with that.

Marriage was the same thing. Marriage again because the fact you get Obergefell and you need gender stuff. Well, the three cases at the court this year on gender deal with things like title nine, Mike Farris, one of the partners has got a case and it deals with female and male athletes.

Transgender Issues

When the sports law was passed back in the 60s, did male and female mean two genders or can that be defined today to be anything? Then in other words, if a guy is 400 pounds and really big, can he call himself a lady and go compete? So that’s the decision at the court this year. Does male mean male, does female mean female? And can we change that at will. That’s a huge case. If we win that, that’s a big deal.

There’s a case we have that I’ll show you about the minute, but it deals with transgender type of issues and so we did a lot of polling on that, because since the case is there this year, we want to know how to argue that to the people, how do you put that out of the media, how do you do your press interviews, how do you argue the briefs to the court so we did a lot of polling on that as well.

So again, and this is stuff that will help you guys because these are issues you’re going to have to face at the State level. And what we found in the polling on how people think is very helpful to State level.

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Abortion

David:

With abortion, abortion is a little bit different. We don’t need to do polling on that because there’s 25 groups who do polling an abortion. That’s one that we don’t have to step in on, but it’s interesting. This was a significant thing that happened about three months ago, maybe back in June, I guess it was two five months ago.

With abortion cases on horizon, Breyer warrants a Supreme Court eagerness to overturn precedent. Let me read you what this part of the article is.

“Supreme Court Justice Stephen Breyer sounded the alarm about the courts conservative majority’s eagerness to overturn decades-old precedent and a dissent to a 5-4 decision where the court reverses 1979 ruling regarding state sovereignty. What the court did was they said, you know, in 1979, the US Supreme Court took an area away from the States that should never have been taken away from the states. This Supreme Court were giving it back to the States. So what happened was that’s a huge decision for States. It was a decision that’s 40 years old and what happens is Breyer said, did you see what the court just, they overturn to 40 year-old precedent. Oh gosh, if they do this, they’re going to be willing to overturn Roe v. Wade, which is an older precedent than that. You know, we’re talking 47 years.”

So here’s what he said, Breyer statement was widely interpreted to be a warning about Roe v. Wade given that he teed up his morning with the reference to a 1992 abortion case that upheld a landmark decision enshrine in the constitutional right to abortion. Today’s decision can only cause one to wonder which cases the court will overrule next, Breyer said after quoting the decision 1992 Planned Parenthood v. Casey.

Planned Parenthood v. Casey

So he sees that Planned Parenthood v. Casey is on his way out the door. He has scared to death that the courts going to overturn. I think in the next three to five years, you’ll see Planned Parenthood v. Casey and Roe v. Wade dumped especially if we get one more Justice, that whole landscape is going to change. And by the way if it does, what are you prepared to do at the State level? Because if it back in your court, don’t wait till three years from now, five years from now to start doing stuff on it. If it’s coming back to you and even Breyer thinks it is, what’s that mean right now? Start thinking ahead.

So with that, here’s some more headlines. Supreme Court decision just open the door for overturning Roe v. Wade. Anti-abortion bills mount is GOP-led States angle for Supreme Court fight over Roe v. Wade. Alabama’s abortion bill is not about Alabama, it’s about tossing Roe v. Wade. After, Alabama have 12 court cases could challenge abortion access under Roe v. Wade.

41 States of introduced pro-life law since January, Planned Parenthood complaints and by the way, Planned Parenthoods complaining, I’m loving that. Anything they want to complain about, that’s great. 41 States have introduced laws. 250 pro-life bills have been introduced in State legislatures. This year alone, 50% would ban all or some abortion. See, this is what States want to do, this is where States went ahead, can we get the feds out of the way so that we can move in this direction?

Incremental Changes with Justice Roberts

Here’s 20 States are attempting to pass heartbeat laws. Georgian, Ohio, just faster… see, if I explain this. Justice Roberts as chief Justice does not want to see the court go down in history as being a pure partisan hack, that they just go with whatever policies they’ve got. We believe he wants to get Roe v. Wade, but we think he wants to do it incrementally to make the court not look as bad, because he’s concerned about the reputation of court.

So if abortion and we’re sitting on a three-legged stool, he doesn’t want to just dump the stool and say, abortion is over. What he wants to do is knock the legs off this stool. So what we think is happening, is he’s looking for a State case with a State law where he can say, you know, the States can do this with abortion. And they’ll do that a second time. It says, you know, since we’re letting states do it, why the heck of the feds involved anyway, let’s get the feds out of it. So we think it’ll take two to three cases before Roberts.

Now if we get a different Justice on the court, take up another Justice as good as Kavanagh or Gorsuch sits in it, that’s not an issue. But right now given the current composition of the court, we think it may take some stages to get there. So this time is now. States are rushing to restrict abortion, protect it, which is why New York passed their abortion on demand bill and their constitution all the way.

States Are Getting Ready

Because see, even New York, even in Virginia, this other States, New Mexico that they see this coming and so they’re trying to get laws on the books right now that say abortion demand always in this State. If Roe v. Wade goes away, this State is going to have what the Supreme Court gave us a Roe v. Wade. So same way, we need be doing stuff on the other side.

So this kind of a universal thought that this is going to change. So what will happen is we think that’s where we get rid of Roe v. Wade and Planned Parenthood v. Casey. Now, let me take you into kind of the downstream effects of some things have been happening that you may not be aware how much impact they’ve already had.

If we go back to the Establishment Clause and the Free Exercise Clause, a great case that we think is coming before the Supreme Court is this case with a coach Kennedy. Out of Washington State, coach Kennedy, football coach, former Marine after the game would over, he’d go over by himself, get off and kneel down and pray and thank God, nobody got hurt, it was a good game, etc. People saw him over there by himself, he didn’t have kids with him and he got fired because he was seen praying in public, even though it’s off by himself.

 

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Oregon Vs. Smith

David:

What happened, because of this case employment, Oregon v. Smith, since that point in time 1980, we’ve not been able to argue the free exercise of religion on the First Amendment, because the court said we have the right to regulate free exercise of religion. No, you don’t. But they’ve been doing it. So every case has been argued, since then has been argued on the basis of free speech. So we don’t say coach Kennedy has a right to free exercise of religion, we say he’s got a right to free speech. We allow people to express themselves all the time. He’s got the right to free speech and if his speech happens to be religious, is free. So that’s the way it’s always been argued.

Interestingly, the US Supreme Court took that case which was at the court this last year and sent it back into Washington, said, we want the courts to look at this again. And by the way, if it comes back to us, we want somebody to bring it back on the basis of Oregon v Smith, we want to be able to challenge that Supreme Court decision. So the Supreme Court actually asked for this case to be come back and to be argued under the case that we want to get rid of. So the fact that they’ve asked for it to be brought back under that case tells us that they’re wanting to get rid of that standard. They want to go back to where you can have the free exercise of religion without the government regulating that. So that in itself is a huge thing for the court to have sent it back with instructions on how to argue it when it comes back. That’s a really big deal.

The Establishment Clause

Now, in addition to that, the Establishment Clause as I mentioned was his Bladensburg decision. The court ruled in favor of it, again the Lemon test we wanted to get rid of. What the court said was, they upheld the peace cross on public land in Maryland and here’s what they said, now, notice his quote. “Long-standing religiously expressive monuments, symbols and practices require a strong presumption of constitutionality.” They said, if it’s been there a while, we’re going to assume that it’s constitutional. Under the Lemon Test, we had to assume that everything was unconstitutional, unless you could prove it was constitutional. Now we’re going to assume everything is constitutional unless you can prove it’s unconstitutional.

So what’s happened is, we’ve shifted the presumption. We’ve now put it in favor of religion instead of against religion. See, we were favoring the secular side, they got preference. Now, we’re favoring the religious side over this. So it’s a huge seismic land shift. The ripple effect has been pretty amazing.

On the same day, the court gave the Bladensburg decision, they said now we had another decision that was that the court, were sending it back to Pensacola, Florida, this is a world war two cross on public land in Pensacola. And they said, Lower Court, pay attention to what we just did with the Bladensburg cross.

What to Expect in 2020

Rick:

We’re out of time for today, folks, you’ve been listening to David Barton speak on what to expect in 2020. This was a presentation he gave just a few weeks back at the ProFamily Legislators Conference where we gather state reps and state senators from around the nation. They come in to exchange ideas and David is talking about what’s coming up in 2020. Every one of us has a role to play in this, we encourage you to do your part.

So start the new year right, make your commitment to preserve freedom for future generations. You can be a part of our team by coming alongside us at wallbuilderslive.com. Click on that contribute button, that donation helps to train pastors and young leaders and legislators. It helps to get constitution coaches equipped all over the nation to teach our constitution class. It gets people involved in the process being a part of the solution.

If you would like to do that, if you’d like to be more active, not just study but also help others to study, we’d love to have you as one of our constitution coaches. Go to constitutioncoach.com today, find out how you can be the catalyst in your community in 2020. We’re going to get a lot of people, thousands of people trained on what the Constitution actually says and what biblical citizenship is all about and you can be the one to bring that to your community. Check out constitutioncoach.com today. Be sure and tune in tomorrow, we’ll get the conclusion of David Barton’s presentation, “What to expect in 2020.” You’ve been listening to WallBuilders Live.