Deterioration Of Religious Liberty:  Is praying at home no longer Constitutionally protected? That’s the position of one city in its fight against a Catholic former nurse. The city and police are trying to limit the First Amendment to only choosing your religion, not actually living it out. Kelly Shackelford, noted Constitutional Attorney, joins us to discuss the ramifications of the case and the future of the First Amendment, as well as giving us an outlook for freedom of religion under judges chosen by President Trump.

Air Date: 01/24/2017


Guests: Kelly Shackelford, 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.  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 because of the difficulty in understanding the speaker at times. We apologize in advance.

 Welcome

Rick:

Welcome to the intersection of faith and the culture. This is WallBuilders Live where we’re talking about today’s hottest topics on policy, faith, and other areas of the culture all of it from a Biblical, historical, and constitutional perspective.

We’re going to be looking at every area of the culture. Sometimes it’s the law.   Sometimes it’s the pulpit.  Sometimes t’s politics.  Sometimes t’s entertainment. But always looking at it from a Biblical, historical, and constitutional perspective. We’re doing that with David Barton and Tim Barton. David is America’s premiere historian.  Tim’s a national speaker and pastor.  And my name’s Rick Green.  I’m a former Texas state representative.

Find out more about us at our websites WallBuilders.com and also WallBuildersLive.com. Guys, we’re going to start with that legal area and especially how that area of the law that affects us individually and our ability to live out our faith, our religious liberty found in the in the First Amendment.  

David, that’s a big part of why you started WallBuilders. You’ve seen how much this has changed over the last 25 years. Well, how would you how would you break that down in terms of religious liberties? Has it gotten better or worse in America?

David:

Not only has it changed in the last 25 years, Rick, it’s changed over the last three centuries. If you look at the sixteen and seventeen hundreds the Founding Fathers and the early colonial settlers did not talk about freedom of religion. They talked about freedom of conscience. When the Founding Fathers did the First Amendment they said, “Through the First Amendment we’ve now secured your rights of conscience.”

 Fighting For Rights Of Conscious

Tim:

And one of the things we look at today are the attacks on religious liberty. Well, they were happening back then too. So part of the reason they were fighting for the rights of conscience was because they saw it being violated.

You can look at the way that the king and his tyranny abused the religious rights of the conscious of the people.  But even back then they had state established religions. In states, they could persecute other religions.  So when they realized we need religious liberty, the way they fought and supported it was for the rights of conscience.

So even as we set this up, it’s significant to note that there’s always people who believe in power and controlling and don’t let other people have freedom. But the way we used to fight for religious freedom, we had a different concept of the freedom we were fighting for.

David:

Conscience is the biggest protection for freedom of religion. Freedom of conscience is the freedom for me to believe what I believe God is telling me to do.  It is the freedom for me to act on what God is telling me to do.  And it’s a freedom for me to express myself in the way that I think God is telling me to do so.

Therefore a Quaker doesn’t have to worship like a Congregationalist because they both have freedom of conscience. If you have freedom and religion, you have the right to practice your faith in a certain way but you can’t do this one thing in particular.

 Government Exists To Protect Our Rights

Tim:

By the way, that’s built also in the context of what we understood.  As they outlined in the Declaration when Jefferson acknowledged that there is a God who has given us rights.  And government exists to protect those rights.

So part of this religious freedom, this right of conscience, was you practicing your faith could not violate what the laws of nature indicated, God had given us an inalienable right to somebody else. So if my practice said, “Sharia law, I’m just practicing my faith. I’m going to kill you.” No, if my faith violates your inalienable rights, that was the only restriction there was on your faith. Your faith could not violate someone else’s and inalienable rights. But beyond that, there really weren’t restrictions to you being able to practice and live according to the dictates of your own conscience.

David:

So what you had in the sixteen- eighteen hundreds was it was all about freedom of conscience. But as we get into the nineteen hundreds we changed that and said, “No, it’s freedom of religion.” If you ask any American from let’s say 35-40 years old and upward, “What is the First Amendment all about?” They will say, “It’s all about freedom religion.”

Well, no it’s all about the rights of conscience. However, now we say, “freedom of religion” but that’s a reduction. Because now we’re saying, “All right, you really don’t get to choose all the things you want to believe and express. You’re going to have freedom of religion but it does have to be in certain places. You can’t do it at school.  You can’t do it at the city park with the nativity scene.  And you can’t do it in a courtroom. You have your freedom of religion but you don’t get to express it everywhere.”

 The Freedom To Choose But Not Practice Religion

Tim:

“You can partially believe it, you just can’t display it in public necessarily.”

David:

That’s right.

Tim:

“But it’s fine that you’re home.  It’s fine at your house.  It’s fine in the church.  You are fine to believe that.  And we encourage you to believe that.  Just don’t bring it out in public.”

David:

So we start with the rights of religious conscience.  Then we go to the freedom of religion.  And then in about 2000 as we entered this new century for about the last 13-14 years it’s been freedom of worship.

You remember that’s what President Obama keeps saying, “You have freedom of worship.” Well, that’s the right to worship the way I want to at home or at church but not at school not, at the office place, etc.   Little sisters of the poor, I mean this is insurance that’s outside the convent. They have to have abortifacients and contraceptives because they can worship how they want but they can’t express it outside the convent.

So we’ve been there about 12 or 13 years, but now we’ve entered a new stage, Rick.  It’s an unbelievable stage. We’ve gone from conscience to religion, to freedom of worship.  And now we’re being told that you have the freedom to choose your religion but you’re not even allowed to express it at home.

 Attorney Defends A Woman’s Right To Pray At Home

Our friend Kelly Shackelford is dealing with a case where the police went into a woman’s home and told her she is not allowed to pray in her own home. They said, “First Amendment gives you the right to choose your religion but not the right to pray at your own home.” Really?

Rick:

Unbelievable! Gotta take a quick break, folks. This is unbelievable.   We’re going to have the attorney later in the program that’s that’s representing her.  Just this idea, like you said, David, that if we’ve devolved down to this where now you don’t even have the right to express or live out your faith in your own home.  Stay with us folks you’re listening to WallBuilders Live!

 Constitution Alive

Have you ever wanted to learn more about the United States Constitution but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know. But it gets frustrating because you don’t know where to look for the truth about the Constitution either.

Well, we’ve got a special program for you available now called Constitution Alive with David Barton and Rick Green.  And it’s actually a teaching done on the Constitution at Independence Hall in the very room where the Constitution was framed. We take you both to Philadelphia, the Cradle of Liberty and Independence Hall and to the WallBuilders’ library where David Barton brings the history to life to teach the original intent of our Founding Fathers.

We call it the QuickStart guide to the Constitution because in just a few hours through these videos you will learn the Citizen’s Guide to America’s Constitution.  You’ll learn what you need to do to help save our Constitutional Republic. It’s fun! It’s entertaining! And it’s going to inspire you to do your part to preserve freedom for future generations. It’s called Constitution Alive with David Barton and Rick Green. You can find out more information on our website now at WallBuilders.com.

 We’ve Lost Our Ground In Religious Liberty

Rick:

We’re back! Thanks for staying with us on WallBuilders Live! We’re talking about this case that’s so hard to believe where this lady is literally told she doesn’t have a constitutional right to pray in her own home.  Kelly Shackelford is representing her and will be with us a little later in the program. Like you said David, this is how far we’ve come in 300 to 400 years. But boy, in the last 30 years we’ve lost a lot of ground on religious liberty.

David:

Yeah, we have. What happened, in this case, is fairly interesting because you have a Catholic retired nurse who was at home and two police officers came to her door and banged on the door and wanted to be let in. Her peephole didn’t work.  She couldn’t see who they were. So she didn’t answer the door and didn’t let anybody in.

They never said there were police officers.  They just said that they wanted to come in. So no way she’s going to do that.  So they come back later and then they demand that she lets him in. When she came to the door they said, “Why didn’t you let us in the first time?” So she pulled out a copy of the Constitution that her congressman gave her and she said, “This is why.” One of the cops laughed and said, “Well that’s just a piece of paper and that doesn’t work here.” And he still didn’t tell her why they wanted her home.

So she let them in, which she shouldn’t have done.  But she let them in.  Once they’re inside they continued to harass her and jab at her and whatever and told her to get ready to go to jail.

 You Can’t Pray In Your Own Home

When she asked, “What are you looking for? Why you here?” One of the officers said, “I don’t know yet.” And so at that point, she was really scared and she said, “Can I pray?” And one officer said, “Yeah you can pray.” So she got down and she prayed silently. The second officer came in and said, “Hey get up. Stop praying.  You can’t pray here.”

So they continued to go after her.  They said, “We want to see any scars or tattoos.” And she was eventually ticketed for interference with law enforcement and for disorderly conduct. At the end, she finds out they’re responding to a noise complaint.  Somebody said that her radio was too loud.

That’s why they came in.  They went into her house.  They harassed her and told her she can’t pray in her own house.  And the Constitution is only a piece of paper? Really?  Are you kidding? So this is the case that Kelly now has.

Look how far we’ve come from conscience, down to freedom of religion, down to freedom of worship, now down to you can choose your religion — By the way, that’s a position the cops are taking in court, “Well we were justified in doing this. And by the way, she’s free to choose a religion but she doesn’t have the right to pray.” Are you kidding? So that’s where we are. The good news is Kelly is defending her in this case.

Rick:

Kelly Shackelford with us when we return. Stay with us, you’re listening to WallBuilders Live!

 God’s Hand In America’s History

David:

This is David Barton with another moment from America’s history. Often today, it seems that the federal government has become too intrusive in the local matters and federal micro-management has now, unfortunately, become the norm in education, law enforcement, religious expressions, and even on what is and is not moral.

Strikingly, the Founding Fathers had intended that the federal government never intrude into any of these issues. As Thomas Jefferson explained, “Taking from the states, the moral rule of their citizens, and subordinating it to the federal government would break up the foundations of the Union. I believe the states can best govern our home concerns and the federal government our foreign ones.”

According to Thomas Jefferson, the original plan was for the federal government to direct foreign affairs but for the states and local communities to direct the domestic and the moral ones. For more information on God’s hand in American history contact WallBuilders at 1 800 8REBUILD

 Trying To Re-word The First Amendment

Rick:

We’re back.  Thanks for staying with us here at WallBuilders Live! Our good friend Kelly Shackelford from First Liberty Institute with us. Always good to have you, Kelly! Thanks for coming on, Sir!

Kelly:

Happy to do it.

Kelly:

I know you guys have a ton of cases going so I would love to get a general update from you.  But specifically, you got this case where a lady is literally told she can’t pray by the police. Now the city’s even making the argument that her First Amendment right is only to choose a religion to practice?

Deterioration Of Religious Liberty

Kelly:

Yeah, it’s pretty shocking. We’re not in some lower court.  We’re at the Federal Court of Appeals. The argument is that the government’s making here is that you have a right under the First Amendment Free Exercise Clause to choose your religion. But that doesn’t mean that you have a protected right to pray at any particular time.

In other words, you can choose your religion but once you choose it they can interfere with the practice of your religion.  And that’s not a violation because they’ve given you the freedom to choose your religion.

Rick:

That sounds a lot like President Obama’s argument, “You can choose your religion but don’t bring it to the workplace. It can’t impact your decisions in the real world when it comes to Obamacare and abortifacients.”

Kelly:

That’s right.  It’s interesting to me because it doesn’t say, “The free choice of religion cause.” It’s the free exercise clause.  The whole point is exercising your religion. And for police officers to tell a woman in her own home that she can’t pray, that’s a violation of the First Amendment and the free exercise of religion. It’s just an amazing argument.  This is not something they said.  This is their headline for their main argument. “The First Amendment free exercise clause only protects the right to choose your religion.”

 Government Not Adhering To The Amendments

Rick:

What started off as just a simple and minor noise complaint about a radio has now turned into a case that really is about what is the original intent of the First Amendment? What is our freedom of religion and how far does this exercise of our faith go? Can government actually stop us from something that’s frankly at the core of her faith, right? Prayer would be what most Americans would say is the true exercise of her faith.

Kelly:

Absolutely, it reminds me too Rick, you’re talking about President Obama and one to one of the things during the last eight years of this talk about freedom of worship versus freedom of religion. And everybody would say, “Well freedom of worship is just a way to say, ‘well you  have religious freedom’ but only in your home and in your church.”

Well, here we see that this wasn’t even allowed in your home. The police could come into your home and tell you, you can’t pray. By the way, the listeners need to understand that these officers, when they were in there she pointed to her booklet on the Constitution and they said, “That’s just a piece of paper.” So this is the attitude we were dealing with. Look, no American should ever be told by a government that they can’t pray in their own home. That should’ve resulted in them going, “Wow, this is wrong.  This is a mistake.  Let’s get this corrected.”

Instead, they upped the ante and said, “Well not only are we going to tell her she can’t pray in her own home but we’re going to say that the First Amendment, the free exercise of religion clause only protects your right as a citizen to choose which religion you will adhere to. But not to actually exercise it and have protection in the practices.”

 No American Will Have Their First Amendment Right If This Happens

Rick:

They had the opportunity to apologize, backed down, leave this alone.  But instead, they’re doubling down. At this point, like you said, you’re at the 10th Circuit right? You’re talking about a case that should it go the wrong way, again, goes down not just a slippery slope but they’re jumping down a hill from that idea of freedom of worship as long as you’re in your home or your church, to “Well not even when you’re in your own home.”

Kelly:

That’s right.  That’s the thing that’s very interesting.  Sometimes in these cases, people can say, “Well you know what are the facts? What really happened? I don’t think this happened?” In this case because of the procedural posture that we’re in, and you’ll understand this Rick, this was at the motion dismissed level.

So what this was is you take the facts as true that are pled by the plaintiff. So the assumption is all these facts are laid out.  There’s no question they’re true. Then if this happens in America, is this protected? And so this is why this is such an important issue.  If she were to lose there would be no American that has protection of their right to pray in their own home.

So it’s not about, “Well you know this did or didn’t happen.” That’s already solidified.  That’s laid out.  The question is, “What is the law?” Can police come into somebody’s home and tell them that they can’t pray in their own home? Is it true that Americans only have the right to choose their religion?” So that’s why this it’s a huge legal issue that’s going on here. That’s why it’s so important and what it’s really shocking that this is the argument that they’re making at the Federal Court of Appeals.

Rick:

So the government is literally saying, “Even if everything that she says is true we still have the right to tell her she can’t pray.”  The government is saying that.

Kelly:

That’s right.

Rick:

Kelly, this is why what you guys do is so important. FirstLiberty.org is the website and folks if you’re not on the e-mail list you need to get on that because they update you on these on these cases.

A great organization to support financially, with your prayers.  And spread the word, and share it on Facebook. Kelly, you’ve been doing this for a long time and even have written books on how many cases of hostility against religion have occurred in the last decade or so. I think most people today, they still don’t realize just how bad it is and how often this happens. People assume it’s just the one bad or exaggerated situation and that it rarely ever happens.  But you guys literally deal with hundreds and hundreds, now thousands of cases over the last decade or so.

Kelly:

Yeah, I would encourage people to go to FirstLiberty.org.  There’s a book that you’re referencing there that we produce every year. It’s a survey of all the attacks on religious freedom.  It’s called Undeniable.  And it’s just like two or three sentences on each one with a citation to it to those. What you see very quickly is how pervasive the attacks are.

In fact, the last three years alone the number of attacks have doubled. So it’s exponentially increasing.  It’s something you can take to your church, to your life group, to your Sunday, school or whatever and show people look, just start thumbing through this and see what’s going on.

 Weekly Updates On Religious Freedom Cases

The other thing I would really suggest people do is to get on the updates list. We send out an e-mail once a week that updates that two or three bigger religious liberty issues of the week. Maybe a case is being filed, something is going the Supreme Court, something like that.  If you are listening to this as Rick and I are talking you will become the person who’s in the know.  

Because many of your friends, many others that your church or other places won’t know. You will be able to provide this information and once more people know about what’s going and on they know what their rights are, people can be much bolder and live out their faith and not be intimidated. But people have to have the information about what’s going on and really be in prayer for these situations and share this with their friends.

Rick:

We will make it real easy for you, folks.  We have a link on our website WallBuildersLive.com to the Free Ebook and also Kelly’s website FirstLiberty.org. There’s a button at the top of the First Liberty website that says “updates.”  Just click on that button and you’ll be able to get the weekly updates.

Kelly, before I let you go, just a bit of good news.  Your outlook with the new president and the potential appointments to the federal level, we should have a better chance with all these religious liberty cases in the coming years with the type of appointments we think President Trump is going to make on the federal bench. He’s got a lot of vacancies to fill.

 President Trump’s Great Appointments For The Federal Bench

Kelly:

Absolutely. We see a lot of opportunity and promises were made as a candidate on religious freedom. We work on religious freedom in the military which is a huge issue. So obviously a new commander in chief can make a big difference on.

We work on religious freedom with our churches.  And of course, he’s talking about getting rid of the Johnson Amendment which would affect all of the churches. We work on religious freedom in our schools.  Of course, he’s spoken out very strongly for Coach Kennedy, the coach has been fired for go into his knee to pray after the football game.

I could go on and on and on.  But what you mention is probably the biggest issue, in addition to all of these things we can do legislatively in Executive Order and things that he can do himself quickly is this issue of judges.

Obviously, everybody is focusing on the Supreme Court pick, but what people don’t know is that there are 103 federal judicial seats currently open and waiting for him to fill when he comes into office. So this is 103 Federal District Court and Court of Appeals judges and we’re certainly going to do everything in our power to make sure that these are really good solid people because they’re appointed for life.

They’ll be there you know 30 years from now when many of us aren’t even alive anymore, but hopefully fighting for religious freedom and standing for our Constitution, if we put the right people in there for our kids and our grandkids.

Rick:

Well, hopefully, a lot more good news coming from you over the next couple of years. Look forward to having you back. Go to the website FirstLiberty.org. Thank you, Kelly.  Appreciate you coming on.  Bro!

Kelly:

Thank you, Rick!

Rick:

Stay with us, folks.  We’ll be right back with David and Tim Barton.

 DVD On Common Core

David:

Hi, friends! This is David Barton of WallBuilders. The current condition of education in America is abysmal. Not only is educational achievement plummeting, but every year, some 19 percent of high school seniors who graduate is completely illiterate. They can’t read at all but it was not always this way.

For generations, we taught students how to think. But after the progressives took over education in the early 20th century, things began to radically change. Education shifted from thinking to learning, which made the emphasis on the teachers rather than the students. And that elevated indoctrination above knowledge.

At that time, progressives also made massive changes in the way we tested students. They extended school from 8 to 12 years. They introduced graded education and they added compulsory education. Statistics prove that these changes have harmed education rather than helped it. And now the progressives are pushing common core.

In our new DVD on common core, we give you eight reasons why this current approach is so dangerous to our kids and our culture. We also show you an amazing history of education. So get this new DVD at WallBuilders.com.

 First Liberty Win Rate Is Incredibly High

Rick:

We’re back.  Thanks for staying with us here on WallBuilders Live! Back with David and Tim Barton.  Special thanks to Kelly Shackelford and First Liberty Institute. They do just a fantastic job, not just in religious liberty cases, they do a lot of different cases.  But that’s really their expertise. Tim, you were saying on the break that they have an incredible win ratio.

Tim:

Yeah, they win over 90% of their cases. In fact, one of the leading advocates against a lot of the religious liberty issues is the ACLU. And actually, at the moment, Kelly Shackelford and First Liberty Institute is undefeated against the ACLU.

They’ve never lost to the ACLU which is remarkable because the ACLU is this monster powerhouse.  But one of the things that Kelly and his group of lawyers do such a good job of is knowing what the original intent is, knowing the law, and knowing what the Constitution says. It’s one of the things in his interview that was shocking to me is as he referenced, and you know, dad, you read this, but he referenced the police officer said, “A piece of paper that means nothing”, as a retired nurse is showing them the Constitution.

It was just shocking to me that police officers didn’t believe the Constitution could restrict their behavior. Maybe this is just where we are in Texas, we have a lot of friends that are sheriffs, police officers, and different positions and those people would respect the Constitution.

But this is a situation where I don’t understand how even as a police officer when you take an oath to uphold the Constitution you’d say, “That’s just a piece of paper we don’t care about that.” There’s just so many wrong things with this which is just so sad.

 First Liberty Will Fight Your Case For Free

But good news for this case is that with Kelly Shackelford and with First Liberty on it is that there is a great chance just based on their record they can win. And by the way, you should know if you ever have something where your religious liberties come under attack there are groups like First Liberty that will defend you for free to help protect your religious liberties. Don’t think, “Oh I couldn’t do that, I don’t have the money,” No, call one of these groups and see if you have something that they can defend you and help.

If something like this happens for sure there are groups that will defend you for free and they have an incredible win percentage because the law is on our side even though sometimes police officers or other groups get it wrong. We can get this corrected, but it’s just silly we have to fight this battle.

David:

A couple of things struck me in what he said.  First is the absurdity of the logic of the of the cops. You would never apply what they said to any other thing, “Hey you have the right to choose to be a Republican or Democrat but you can’t make any phone calls at home.  You can’t read the platforms at home.   You can’t advocate for Republicans Democrats at home.  You can choose it, but you can’t do anything with it.” You would never say that about anything else.  But they say it to religion.

Recruit For New City Council

But the other one that really struck me and this is in Louisburg, Kansas. I don’t know how they run their government or anything else. I don’t know how big the town is.  But if I were mayor, the first thing I’d do is call the police chief and I say,  ”What? You put these guys on administrative leave and send them to a basic constitution class right now.  And don’t let them get back on the streets until they know what that Constitution says.”

And in their case particularly the Fourth Amendment of the constitution. If the mayor didn’t do that and the city council didn’t do that.   I would start recruiting for a new city council and a new mayor.  Because if you tolerate this kind of egregious violation of something as simple as the Fourth Amendment of the Constitution, nobody’s rights are safe in that town.

And I don’t mean the cops are bad and I don’t mean that they’re not going to protect you. But I mean your constitutional understanding your rights are in jeopardy if you can’t see something this clearly is the Fourth Amendment.

Then when somebody pulls that out and they say, “Well that’s just a piece of paper, that doesn’t apply here.” So there is a political solution to this as well if the legal solution doesn’t work. But if you have leaders in town who don’t understand how egregious this is, then get new leaders.

Rick:

The fact that they’ve taken the positions in court that they’ve taken not only in not reprimanding and changing the situation on the ground but now to argue all the way to the 10th Circuit. This kind of lunacy that you’re only First Amendment right is to choose your religion and not actually live it out even in your own home, just unbelievable.

That then comes back to the citizens because they’re paying the legal fees for this ultimately. So it’s our job to stand up for these religious liberties which means we have to be educated about them which means we need to know that original intent and be able to apply that Biblical, historical, and constitutional perspective.

So get Constitution Alive and start studying or go look at the archives the radio program and you can listen to some of the programs the Foundations of Freedom Thursday. Thanks so much for listening today, folks.  You’ve been listening to WallBuilders Live.