Court Cases: What Happened When An Atheists Targets a 90-Year-Old Veterans Memorial: In today’s podcast we are interviewing Hiram Sasser from First Liberty Institute. We’ve got a lot of cases going through the court system right now dealing with the issue of religious liberty and dealing with the issue of wanting to take out the crosses from cemeteries and memorials. Tune in today to learn about what is going on in the US Senate, the presidency, and with judicial nominees, and learn about the seismic shifts that have happened in just the last couple weeks. Watch for changes that will help more of his appointees be put in place in the near future!
Air Date: 12/06/2017
Guests: Hiram Sasser, 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 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
Welcome to the intersection of faith and the culture. This is WallBuilders Live! Where we’re talking about today’s hottest topics on policy and faith and other areas of the culture. But all of it from a Biblical, historical, and Constitutional perspective.
We’re here with David Barton, America’s premier historian and our founder here at WallBuilders. And my name is Rick Green. I’m a former Texas state legislator.
You can find out more about all of us and the program at WallBuildersLive.com. Also, you can get archives of the program there, you can get a list of all the stations around the country.
And then at WallBuilders.com, a lot of great tools for you, resources, a lot of free things you can just download with articles. There’s also books and DVDs and a wealth of information to equip and inspire you. Also, hey, great Christmas gifts. It’s the perfect time of the year to be looking at that website and give the gift of freedom to your friends and family.
Many Religious Liberty Cases in the Court Systems Currently
Hiram Sasser will be with us later in the program from First Liberty Institute. David, Tim, we’ve got a lot of cases going through the court system right now dealing with the issue of religious liberty, dealing with the issue of can you have even a cross in a cemetery or a memorial. What about military memorials, veterans memorials, that have some sort of religious symbol?
Well, these are not new arguments. We’ve been having arguments on religious expression since 1947 in the U.S. Supreme Court. And the court’s been striking down religious liberty expression since 1962. Now sometimes we win, sometimes we lose. But I think the ones that are on the court right now are very different from previously because we’re looking at some major shifts that may occur in the court.
And just the shift of personnel in the court could take the very same issue and get a different result on it. In other words, it’s no longer just what’s Constitutional or what’s not Constitutional. It’s who’s deciding the issue of the court.
So, as we talk to Hiram and we look at the cases that are out there, I think the new focus is, “Okay, Trump’s going to be in for a bit. What kind of judges will we get and the decisions we’re getting now are they from Obama judges? Oe are they from Clinton judges, or are they from Reagan judges, or are they from George W. Bush judges?” And so it’s a whole different way of looking at the judiciary which brings back into focus a lot of things that should have been in the news recently but have not been very highly covered.
These Are Issues That Don’t Seem to be of Importance to a Lot of Reporters
For whatever reason, these are issues that don’t seem to be of importance to a lot of reporters. But man, for folks like us on this program that look at cultural change, and look at how it’s achieved, and how you reverse it, what’s going on in the U.S. Senate right now, what’s going on out of the Presidency right now with judicial nominees, and what’s going on in the confirmation of those nominees, it’s really an intriguing process.
There are some things that have shifted in the last couple of weeks that are major seismic shifts. I had a friend from California text me last night and within the last 30 days, they have had 686 earthquakes in the last 30 days in California. It’s that kind of shakeup that’s happening in D.C. and we’re just not hearing much of it. But with what Hiram’s going to cover, and looking at some of the cases that are out there, I think it will give us a good opportunity to look at some systemic things that are happening in D.C. that may make a really big difference in religious liberty.
Hiram Sasser, our guest today. Stay with us folks – we’ll be right back on WallBuilders Live.
Moment From American History
This is Tim Barton from WallBuilders with another moment from American history. After the final victory at Yorktown, the Continental Army awaited the outcome of peace negotiations with Great Britain.
Pastor Israel Evans, a chaplain in the army, proposed to George Washington that they build a structure where church services can be held during the months of waiting. Washington approved the plan and urges officers to ensure that the soldiers attend that service.
Pastor Evans further knew if we were to secure the liberties they had fought for, sound education would be crucial.
He declared, “Every parent and every friend to the freedom of his country ought to be attentive to the improvement of our youth and the principles of freedom and good government. And then the people will stand fast in their liberty for a long time.” Our schools today need to return to teaching the principles of freedom and good government in order for America to survive and prosper. For more information about Pastor Israel Evans and other colonial Patriots go to WallBuilders.com
Welcome back – thanks for staying with us here on WallBuilders Live. Hiram Sasser back with us from First Liberty Institute. Hiram, good to have you on.
Hey, thanks for having me.
Hey, you guys constantly out there all over the country defending our religious liberty and other cases as well. And incredible win ratio – I think you guys are in the 90 percent or something like that. And often manage to just get people to follow the law in the first place and follow the Constitution. So thanks for all that you do.
It’s been a while. Wanted to get you on for an update and find out what the big cases are going into the end of the year and get your crystal ball out. Tell us what’s going to be on the horizon next year.
A 90 Year Old Memorial Cross Has to be Torn Down?
Well, one of the interesting cases we’ve got going on is in the Fourth Circuit right now. We recently lost a case. So far, it is still in the process of being appealed. But in a 2-1 decision at the Fourth Circuit Court of Appeals, the Fourth Circuit ruled that a 90-year-old Veterans Memorial, a World War One veterans memorial that was put up by the American Legion. The mothers of 49 soldiers, sailors, and marines who died in World War One, they all donated their money, they put up this 40-foot tall cross which is almost identical to the types of World War Memorials you find all over the world. And now 90 years later the court has ruled that it is unconstitutional. Meaning it would have to be torn down after being there for 90 years.
So, something happened that the monument itself became more offensive. Did the Constitution change in that 90 years? I don’t remember an amendment to the Constitution changing the First Amendment. So, what changed?
Yeah, right, just the courts and their craziness. What’s interesting about it is that the Washington Post ran an editorial saying, “Save the memorial.” Okay.
Not a bastion of conservatism.
This the Post, The Washington Post. And then Judge Gregory who is on the Fourth Circuit he was a President Clinton recess appointment to the Fourth Circuit. He’s the one who dissented in the 2-1 decision saying, “No, save the memorial.” As a matter of fact, the district court judge that ruled in our favor was a Clinton appointed judge as well.
Widespread Bipartisan Support for Preserving Veterans Memorial
So, this is a widespread kind of bipartisan support for preserving a veterans memorial like this. But unfortunately, on that panel that we had two Obama judges and one Clinton and so it went 2-1 against us.
Now will that go– will you guys go en banc and try to get the whole–
Yeah, we’re currently trying to seek review en banc. And again, this is the veterans memorial that was put up 90 years ago. It was actually originally put up on private land which would mean that there would be no way for the atheists to come in and sue saying that they’re offended because it would be on private land.
But because the highway expansion– as a matter of fact, this is actually tied to the growth of government. Because of the growth of government in Washington D.C., they needed a wider highway for everybody to commute to their jobs in Washington.
Wow. That is –
And so the growth of the government actually led to this. But what happened was they had to grow the highway and so they end up, through eminent domain, taking the property that the cross was sitting on. So, they just looped one of the on-ramps to the highway around the cross, around the veterans memorial there. And that’s why it happens to be on government property today. And just by virtue of that, the atheists say it has to be torn down and in a 2-1 decision. The 4th Circuit agreed.
Bad deal all the way around. Now you guys have had similar type cases, right? So what do you think happens here and have you had one of these types of cases go all the way to the Supreme Court yet?
Similar Court Cases
Yeah, the one case that we had that is similar to this that went to the Supreme Court was Salazar vs. Buono. That was the cross in the middle of the Mojave Desert and we represented the Veterans of Foreign Wars in that case. In this case were representing the American Legion, the ones who put up the memorial. But in that case, we represented the VFW, that case from about eight years ago now.
And that one went on for years. They kept– ran you all in circles all over the place on that one if I remember.
Yeah, it did and we finally were able to restore the memorial out in the middle of the Mojave Desert. Why atheists care about a cross in the middle of the Mojave Desert is beyond my understanding. But nevertheless, the atheists now are saying– and this memorial is only in Bladensburg, Maryland the one that’s currently in litigation, it’s only about five miles or six miles from downtown Washington, D.C.
So, a lot of people in that area know about it and so we really believe that the Supreme Court could ultimately take this case. Here’s what’s really important about this case – in Arlington Cemetery there are two World War One veterans memorials. Separate and apart from tombstones, right, actual memorials.
They’re both large free-standing crosses. One of them is 27 feet tall and it was donated by that radical religious organization known as the Canadian government in 1927.
And that radical religious zealot, Calvin Coolidge, that’s who accepted it and gave a speech in front of it.
It’s Normal to See a Cross Being Used as a Veterans Memorial
I say all this tongue in cheek because this was a time back during World War One. If you were to go to New Zealand, England, Canada, wherever you go, if you’ll look at their World War One memorial, for the most part, they are large free-standing crosses. So it’s normal to see a cross being used as a veterans memorial for World War One. The cross out in the middle of Mojave Desert was a World War One veterans memorial. This one here in Bladensburg is, and the two in Arlington Cemetery – all free-standing crosses.
Wow. And what you’re saying is if this goes to the Supreme Court, if you get it all the way to the Supreme Court, you’re not just going to be protecting this one cross. This one memorial, you’ll be protecting them at Arlington cemetery, all over the country.
Got to take a quick break. Hiram Sasser our guest today. Stay with us. We’ll be right back on WallBuilders Live.
We Want To Hear Your Vet Story
Hey friends! If you have been listening to WallBuilders Live for very long at all, you know how much we respect our veterans and how appreciative we are of the sacrifice they make to make our freedoms possible. One of the ways that we love to honor those veterans is to tell their stories here on WallBuilders Live. Once in awhile, we get an opportunity to interview veterans that have served on those front lines that have made incredible sacrifices have amazing stories that we want to share with the American people.
One of the very special things we get to do is interview World War II veterans. You’ve heard those interviews here on WallBuilders Live, from folks that were in the Band of Brothers, to folks like Edgar Harrell that survived the Indianapolis to so many other great stories you heard on WallBuilders Live.
You have friends and family that also served. If you have World War II veterans in your family that you would like to have their story shared here on WallBuilders Live, please e-mail us at [email protected] Give us a brief summary of the story and we’ll set up an interview. Thanks so much for sharing here on WallBuilders Live!
Welcome back. Thanks for staying with us here on WallBuilders Live. Hiram Sasser is our guest today. And as we’re going to break, Hiram, you were talking about the impact of this case because it is not only going to affect this particular memorial but memorials all over the country.
They Went From Fighting Against Ten Commandments Monuments to Fighting Against Veterans Memorials
Yeah, that’s exactly right. We represent the American Legion which consist of a little over 2 million veterans. And, very, very, — they’ve been around for 100 years and a very old and prominent group of advocates for our veterans, veterans themselves. It’s a great honor to represent so many veterans, but here we have the veterans are having to defend their own memorials. The American Legion never wanted to get involved in, obviously, these types of fights about, like, Ten Commandments monuments or things like that.
But what happens is the atheists, they went from fighting against Ten Commandments monuments to fighting against veterans memorials. And it’s just really interesting to see the American Legion, which is a veterans service organization, and they have a diverse membership. They all band together going, “Do not tear down our veterans memorials.” It’s interesting because, maybe today we wouldn’t put up a large free-standing cross as a veterans memorial for Iraq or Afghanistan, right? But in World War One it was common and we have so many people who are of no religious faith, or of a Jewish faith, or other types of backgrounds, who say, “Look, do not tear down our veterans memorial. We don’t care what the symbol, do not tear it down.”
It’s a veterans memorial.
It’s almost like, yeah, a dumb fight for them to pick I would think, right? This one’s going to get people — public opinion wise I would think it’s an easier battle for us because people are going to be saying, “Hey, look, you can honor if you privately put those things up.”
You ought to be able to honor them however you want even if that land is now taken over by a public entity, the honoring hasn’t changed and the people that put it up would still want to be there. This is, I would think, public opinion-wise, this one ought to be a big win for us.
Their Mothers Picked the Memorial
Yeah, you know what’s interesting is that the atheists have been running this sort of campaign where they say, “Well, this memorial doesn’t represent all veterans of all faiths.” But here’s the catch on this particular one – this memorial only represents 49 specific people from that county and their mothers picked the memorial.
And so I don’t think that atheists or judges should be coming in and saying that the mothers, the Gold Star mothers, were wrong in the type of memorial they chose for their own sons.
That’s right, that’s right.
Hey, before I let you go, any time we get when you guys first liberty, I want to get your sense kind of generally. You know, a lot of nominees from President Trump and you guys really monitor that and follow that and some confirmations and just of your crystal ball, as I said earlier, of going into next year as a lot of these confirmations happen and more of his nominees get on the bench. Good nominees – you have the same feeling? David and I’ve been just really pleased with what we’ve seen, but we don’t know all of them. Y’all are watching a lot closer, so what’s your sense?
A Fantastic Array of Nominees
Well, my sense is that President Trump has, what I would consider, one of the best White House counsel teams in the history of the United States. And the White House counsel’s office, and then they have Leonard Leo on the outside who’s been advising from Federalist Society. They have put together a fantastic array of nominees all across the country. And obviously, a couple of our favorite nominees are Jeff Mateer and Matt Castamere from–
–from our office, but there are a lot of great nominees from all across the country. A lot of people who have a lot of respect for religious liberty, for the rule of law, for strictly construing the Constitution in the ways the Founding Fathers would have intended. So, these are really great group of folks that are in charge of the nominations process and that are being nominated. So, I think we can see in the future and look– and look at Justice Gorsuch – he has really done a great job. So, it’s fantastic to have that team in place.
How long have you been at First Liberty, Hiram?
I’ve been here for 15 years.
Colleagues From First Liberty Nominated to the Federal Bench
So, did you — just take yourself back ten years ago, could you have imagined that some of your colleagues from First Liberty were going to be nominated to the federal bench? That we’d be getting this quality of folks that have been the religious liberty champions on the front lines potentially in the federal bench – that’s phenomenal.
Well, you know the answer to that is, “No, I never would have imagined it.” But once we started– as we got bigger at First Liberty, and we started hiring some lawyers that came in with a lot of different experience, you know, Jeff Mateer, he has litigated more trials for Fortune 500 companies than I think anybody else that’s been nominated in the state of Texas. And then you have Matt Katz Merrick who won an award from Attorney General Eric Holder for his prosecution of terrorists. So, we have people who are–
High quality, high caliber.
Yeah, high-quality folks that have come in, of their own right, set them apart from any kind of work they’ve ever done here.
Yeah, but, they have proven themselves to be true Constitutionalists and that’s not always the case. And a lot of times we just don’t know about these nominees. So, it’s great to have folks that we know are going to be solid on the Constitution. So good stuff.
Hey, appreciate you coming on, Hiram. Appreciate the update. You guys keep up the great work. What’s the website for First Liberty so that folks can go there and donate and get on your list and follow these cases next year?
Yes, it’s FirstLiberty.org. So, it’s real easy – FirstLiberty.org and we have lots of different information about our cases on the web page.
Appreciate you, Hiram, thanks for coming on.
Hey, thank you, sir.
Stay with us folks. We’ll be right back with David Barton.
Bring A Speaker To Your Area
Hey, this is Tim Barton with WallBuilders. And as you’ve had the opportunity to listen to WallBuilders Live, you’ve probably heard a wealth of information about our nation, about our spiritual heritage, about the religious liberties, and about all the things that make America exceptional.
And you might be thinking, “As incredible as this information is, I wish there was a way that I could get one of the WallBuilders guys to come to my area and share with my group.”
Whether it be a church, whether it be a Christian school, or public school, or some political event, or activity, if you’re interested in having a WallBuilders speaker come to your area, you can get on our website at www.WallBuilders.com and there’s a tab for scheduling. If you’ll click on that tab, you’ll notice there’s a list of information from speakers bio’s, to events that are already going on. And there’s a section where you can request an event, to bring this information about who we are, where we came from, our religious liberties, and freedoms. Go to the WallBuilders website and Bring a speaker to your area.
Moment From American History
This is David Barton with another moment from America’s history. What is the purpose of government? Founding Father Oliver Ellsworth believed he knew. Oliver Ellsworth was a delegate at the convention which formed the Constitution and later he became the chief justice of the US Supreme Court.
Concerning the purpose of government, Oliver Ellsworth declared, “The primary objects of government are the peace, order, and prosperity of society.” Yet, how are these goals to be achieved?
Ellsworth explained, “To the promotion of these objects, good morals are essential. Institutions for the promotion of good morals are therefore objects of legislative provision and support. And among these religious institutions are eminently useful and important.”
Founding Father Oliver Ellsworth believed government could never reach its goals apart from the help of religious institutions. For more information on God’s hand in American history contact WallBuilders at 1-800-8-REBUILD.
It Just Seems Like a Bad Fight to Pick For the Left
Welcome back to WallBuilders Live. Thanks to Hiram Sasser and First Liberty Institute for joining us today on WallBuilders Live. We’re back with David now. We look at this always in terms of, how is this moving the culture one way or the other.
And like I was saying to Hiram, it just seems like a bad fight to pick for the left. But they’ve been –this one is just over — they go after every memorial you can imagine if it has any kind of religious symbol. And so here you’ve got these, it’s 90 years old, it was put there by the moms – all the things he was describing. I’m thinking, “How can they think they’re going to win this?” But they have won at the district and the appellate court level.
Yeah, and see that’s the key is to common sense people. You’re going, “You’ve got to be kidding. This is not an issue.” You know, put there by moms, all the stuff you just said. But let’s back up a minute. This is in the fourth Federal Circuit Court of Appeals.
Now, there are 13 federal circuit court of appeals. And whenever you have a case that goes into any of those circuits, they will take all the judges on that circuit court of appeals and they will randomly pull three judges. So, the case is first heard before a three-judge panel. As it turned out, in this case, two of the three judges on the panel of three were Obama appointees and one was a Bill Clinton appointee.
Now notice that the Obama appointees said, “No, no, no, no, there’s no way. I don’t care if it’s 90 years old, I don’t care if the mamas chose it, don’t care any of that.” And the Clinton appointee said, “What? Are you kidding?”
Even the Washington Post said, “You’ve got to be kidding. Of course, they can have this.” But, notice the two Obama appointees said, “We don’t care what history, tradition, or our Constitution is, we don’t like this.” The Clinton appointee actually said, “No, this is a good deal.”
So you’re looking at that, so as Hiram said, they’re now going for en banc. And, Rick, what’s “en banc?” Explain.
Well, in this case, they had three of those — of all the judges. I’m not sure how many are on the 14th. Like the fifth circuit, I think there’s 23 or 24.
Yeah, there’s actually 15 judges total on the 4th Circuit.
15, oh, okay.
So when they choose a panel of three, they’re choosing three out of the 15 – whatever that is.
And I don’t know – do you know much about the makeup of the rest of it? He said this was two Obama judges and a Clinton judge. So if they go to all 15, I wonder if they’re going to pick up some Republican-appointed judges.
The Fourth Circuit is Now a Majority Liberal Court
Well, here’s the interesting thing because they’re getting support from a Democrat appointee, Clinton. And when you look at the Fourth Circuit all by itself of the 15 judges on the Fourth Circuit, seven were appointed by Obama. And so when you look at the 13 circuits that are out there, nine of the 13 circuits shifted from conservative to liberal by Obama appointees. And so even though Obama did not appoint the majority on the 4th Circuit, when you take the Obama appointees that are there and add them to the liberals that were already on the court, the Fourth Circuit is now a majority liberal court. And so we used to get really good decisions out of the four circuit.
Now we’re having trouble with county commissioners having prayers. Even after the U.S. Supreme Court ruled you could open with prayer in the City of Greece vs. New York, this 4th Circuit said, “Well, that doesn’t apply in North Carolina. In Rowan County, we’re not doing that.” And so what’s happening is the 4th Circuit is saying, “We don’t care what the Supreme Court says, we’re Obama appointees and here’s our agenda. Here’s where we’re moving.”
So what’s happened is in 13 federal circuit courts that handled the entire nation, nine of the 13 have been shifted to the left by the majority with Obama appointees. So when you’re looking at this, an “en blanc” simply means they’re going to go from having heard it with a three-judge panel to having the entire court hear it – all 15 judges will hear it. That’s what they’re asking.
And if you can’t get a sizable portion of the Fourth Circuit to say, “We want to hear this case,” then that three-judge panel decision will stand. And so at this point, the 4th Circuit is a majority liberal court, seven of the 15 are Obama, and then there were other liberals that were already on the court. So it doesn’t look good at that point.
And then you have to say, “Well, can we get the U.S. Supreme Court to take the case?” And they get about 8,500 a year appealed to them and they take about 80 of them. So you’re looking at a fraction of a percent is all they take. So the odds are against this case being picked up by the U.S. Supreme Court if the courts go against it. Now, that’s part of the impact that Obama had.
Roll forward to where we are right now, and by the way, Obama put 55 Federal Court of Appeals judges on those 13 courts. And so that’s a lot and that shifted – even the Fifth Circuit where we are down here in Texas was always considered to be conservative. It was Texas, Louisiana, and Mississippi, and now the fifth circuit is a majority liberal court and it had not been before. So that’s the effect of those nominees he put on. Now, you’re looking at the federal judicial system right now.
145 Vacancies in All the Courts
There are 145 current vacancies in all the courts, and so far, Trump has nominated about 50 judges to fill the courts. And a lot of them are our friends, they’re good guys, they’ll ship this thing back in the right direction except we can’t get them confirmed right now.
Out of the 50 that have been nominated this year so far, we’re looking at only a dozen that have been confirmed. And we’re now looking at nearly a year into Trump’s presidency and we’re confirming one a month, really, with 145 vacancies? That’s not good.
And that’s because over in the Senate something started by Harry Reid when he was the head of the Senate for the Democrats and something now going by Chuck Schumer who heads the Senate for the Democrats. They’ve really shifted that.
In the Senate you have what’s called the “Blue Card” practice where, for example, a district judge like here in Texas, or I’m going to take New York, that’s where Schumer is. Let’s say Trump appoints a good judge for the federal district in New York and Schumer says, “Well that’s my state. I’m the senator there. I’m given it a blue card which means I’m suspending that, you can’t confirm that until I say he can be confirmed.”
Well, guess what? Democrats are saying “no” to every appointee that is coming through.
Ending the “Blue Card” Process
Even guys who served in the U.S. Senate like Sam Brownback that everybody loved, he was a pure partisan line vote. He’s for religious liberty embassador and the Democrats all voted against him even though he served with them in the Senate – they liked him.
So they’re taking virtually every Trump nominee and saying no to them. So what happens is they’re doing the same with these judges and the blue card is one of the ways they’re keeping these guys from coming up for a vote.
And what happened just a week or so ago, Chuck Grassley, who’s a Republican from Iowa over the Senate Judiciary Committee said, “We’re ending the blue card process. You’re not doing that anymore, we’ll no longer accept blue cards.”
Which now means a whole bunch of these guys that have been nominated and have been through their hearings will now be coming up for vote. Mitch McConnell actually wrote an op-ed in the paper here a couple of weeks ago saying, “We’re starting to move all these guys through. We’re going to see them moving through.”
So, the Democrats have successfully blocked so many of these Trump nominees, but they’re going to make it. You’re going to see a big difference in the coming weeks. It may not make a difference in time for this case, but it will make a difference for cases coming up the rest of this year and into the future.
Which bodes well for us and that’s just in this one year in these appointments he’s made so far in the vacancies that had occurred in the last really 15 -18 months. So, no telling what can happen in the next three years and beyond. So, be hopeful folks! A lot of positive things moving on the court side of things.
Definitely, go to those links on our website today and visit First Liberty so that you can follow this case and many others that they’re working on for us. Thanks so much for listening today. You’ve been listening to WallBuilders Live.