Oregon Court Denies Justice to Sweet Cakes Bakery: In today”€™s episode, we are interviewing Kelly Shackelford on the Sweet Cakes Case.  Kelly Shackelford from First Liberty Institute joins us today to talk about courts and judges and how President Trump”€™s judicial nomination process is going, how President Trump has set some records, exciting new judicial confirmations, where some current religious liberty court cases stand, and more!  

Air Date: 01/16/2018

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

Guest: Kelly Shackelford

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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

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 the culture. Always from a Biblical, historical, and Constitutional perspective.  

Today we’re with David Barton America’s premier historian and our founder here at WallBuilders. Also Tim Barton national speaker and pastor and the president of WallBuilders. My name is Rick Green I’m a former Texas state legislator. Later in the program, Kelly Shackelford will be joining us from First Liberty Institute.

You can find out more about us at WallBuildersLive.com and also WallBuilders.com, that’s our two websites. The WallBuilders Live website is where you can learn about the radio program, you can get a list of our stations, and even get archives of past programs over the last few weeks. The WallBuilders.com website is our main website . That’s where you can get news and information on a daily basis. But you can also get some great tools to equip and inspire your family to be good citizens and understand what it means to apply the Bible to our culture and our society today.

David, Tim, Kelly will be with us later. Let’s talk about some of the cases that he’s dealing with and also some of the federal judicial appointments and nominations that have been taking place. So, obviously the court battles is a major part of that intersection of faith and the culture.

David:

It is. And court battles, not just court battles, but actually the judiciary itself. We’re told back in Isaiah 1:26 that the righteousness of an area is determined by the type of judges you have. And so Kelly has to argue in front of these judges and he has also been working with the administration to try to get the good kind of judges.

Driven By Principle

David:

One thing about Kelly is he’s not a political hack. He’s not just a Trump hack. He’s the guy who really is into the Constitution, really is into getting Constitutionally restrained judges who do exactly what the Constitution says. So, he’s the guy that’s driven by principle. And his perspective on cases that are going on in Oregon, the cases in the U.S. Supreme Court, on what’s happening with the Court of Appeals Justices, what’s happening with judicial appointments.

It’s huge because he does come at it from that God perspective of God’s righteousness is a standard. And if you get the right kind of judges, then you can have a righteous nation. So, Kelly, his insight and what he offers here I’m looking forward to seeing what he’s saying because he’s got the right world to look at this.

Rick:

And he’s done it for years, he’s been on the front lines. He’s argued the major cases before at the state level, at the federal level, before the Supreme Court. This is probably one of the, I would say, top five maybe, at least top 10 experts on religious liberty in the country and how to win this battle.

David:

I don’t know why you would look at a guy who’s handled, maybe 10,000 incidents, and say that he’s qualified. I mean, why–

Tim:

And not just handle 10,000. When he goes to court, he has like a 98-99 percent win ratio. So, not only has he dealt with more things than most other attorneys ever have ,especially when it comes religious liberty. With religious liberty, there’s just not many attorneys that have done anything near to what Kelly Shackelford has done. But especially not when it comes to the winning percentage – just phenomenal. And so not only does he do a really good job defending religious liberty, he does a really good job knowing how to argue based on historical precedent, based the constitution, based on laws. And so really just phenomenal when it comes to these issues.

Rick:

And you guys know this because you know Kelly well, but usually an attorney at that level of expertise is arrogant and even difficult to be around – not Kelly. Humble guy, loves the Lord, loves the cause, loves what he’s fighting for, and does it really well. Kelly Shackelford will be our special guest when we come back on WallBuilders Live.
Biographical Sketches

Hi friends! This is Tim Barton of WallBuilders.This is a time when most Americans don’t know much about American history or even heroes of the faith. I know, oftentimes as parents, we”€™re trying to find good content for our kids to read.

If you remember back in the Bible, the Book of Hebrews it has the Faith Hall of Fame, where they outlined the leaders of faith that had gone before them. Well,, this is something that as Americans we really want to go back and outline some of these heroes not just of American history, but heroes of Christianity and our faith as well.

I wanted to let you know about some biographical sketches we have available on our website. One is called, “€œThe Courageous Leaders Collection“€ and this collection includes people like Abigail Adams, Abraham Lincoln, Francis Scott Key, George Washington Carver, Susanna Wesley, even the Wright brothers.

There’s a second collection called, “€œHeroes of History“€ in this collection you read about people like Benjamin Franklin, Christopher Columbus, Daniel Boone, George Washington, Harriet Tubman, the list goes on and on.

This is a great collection for your young person to have and read. And it’s a providential view of American and Christian history. This is available at WallBuilders.com.

Rick:
Welcome back. Thanks for staying with us here on WallBuilders Live. Our good friend, Kelly Shackelford, is with us from First Liberty Institute. Kelly, always good to have you, man. Thanks for coming on.

Kelly Shackelford:

Hey, it’s good to be on.

Let”€™s Recap a Little Bit

Rick:

Early 2018 here looking at what’s coming up in the new year, but let’s recap a little bit. You guys just got a decision on the Klein case, the bakers up in Oregon. We’ve got a lot of judicial confirmation. So I’m just going to rapid fire with you here to catch up with a lot of stuff.

Kelly Shackelford:

Well, there’s a lot going on, I tell you.

Rick:

There is. Let’s start with the Kleins. So this is one we’ve had you on before to talk about what happened in Oregon. And I want to encourage people to go to your website and watch the video where y’all interview them because I think that brings it home. It really makes people understand how real these cases are.

Why a photographer, or a baker, or whoever it might be, why it’s a conviction, on their part, to not use their art, their skill, their talent, to participate in something that they strongly disagree with.

Kelly Shackelford:

Absolutely. I think the video is great. I think sometimes we forget there’s real people involved in these and they’re real serious consequences. The Klein”€™s are a wonderful Christian couple, a Christian family, with five children. And you know they had a bakery and it was their family’s business and they planned to pass it on to their kids.

And now it’s, not only were they fined 135,000 dollars, but they’re bankrupt, their business is gone – all of that because of why? Because they would not custom make a cake for a gay wedding. And they were as respectful as they could be. They said, “€œOh, I’m sorry. Because of our faith, we can’t custom make a cake.”€

That”€™s Not America

Kelly Shackelford:

But the idea that in this country, people would have their business destroyed because they wouldn’t share somebody else’s message. It goes about as strongly against the First Amendment as anything I can think of. The government is literally saying, “€œYou will express this approval or we will destroy your business.”€ That’s not America, that’s not how we do things in this country.

Rick:

Yeah, even to take it to another profession, you know, hey Kelly, I’m a drug dealer, or a mafia, or whatever. I want you to be my attorney and you can’t say “€œno”€.  That’s essentially what we’re saying is we’re going to make people perform their skill even when they completely–  it’s a violation of their conscience. I would think that”€™d be a violation of your conscience to say, “€œYeah, Rick, I”€™ll represent you in illegal activities using my skills as an attorney.”€ Isn’t it the same principle here?

Absolutely. You could even easily see it’s like they even change just based upon what the message is. Some people are so pro LGBT that they can’t see straight. So, you start saying, okay, so I guess that means when the KKK comes and asks for the Jewish baker to do a celebration of a KKK ceremony cake they have to do that? Well, no.

And what about the black bakers that are asked to do a cake for the KKK? Or something like that.

Rick:

Yeah.

Kelly Shackelford:

I don”€™t think everybody realizes you have a right not to express a message, or participate in a message, that you disagree with. And it can’t be that well, you know, I’m all for the government crushing my opponents, but the government would never crush me because at one point the government disagrees with me. That’s the short sightedness of this.

Rick:

And complete lack of principle.  

Kelly Shackelford:

Yeah.

Rick:

I mean, a principle is timeless. It should work across the board.

The Government Will Use the Power Against You

Kelly Shackelford:

Absolutely. And it’s the danger – if you ever give the government this power, they have that power. And if you think they’re not going to use it against you–

Rick:

Yeah.

Kelly Shackelford:

— man, you are living in la la land. This is about as strong of a violation of the First Amendment as I think is even possible. It’s one thing to try to punish somebody for free speech or whatever. It”€™s another thing to say, “€œWell, you might not agree, but we’re going to do this thing that you think is bad and you”€™re just– tough. That’s just part of living in society.”€

It’s a totally different thing for the government to say, “€œWe’re going to force you to participate in the thing that you disagree with.”€ Now you’ve lost total freedom. We’re going to force you to express something that you not only don’t agree with, but that violates your conscience. You feel like you’re in some sort of third world country at that point and that’s what these are about. And there’s no reason for that.

Rick:

Yeah.

Kelly Shackelford:

There’s no reason.

Rick:

What is next on this case? It is the Oregon court of appeals I think. People may have seen this in the papers and thought, “€œOh, it”€™s all over. That was the Supreme Court.”€ It wasn’t the U.S. Supreme Court.

This was the Oregon court of appeals. So, we kind of expect, not usually, reasoned Constitutional decisions out of the Northwest these days. What do you see is next now that we’ve lost at the Court of Appeals in Oregon?

Kelly Shackelford:

Well, I would point out because a lot of people don’t pay attention to the details and the media doesn”€™t report them very well. But one thing we did win is they had actually issued a gag order against the Klein”€™s, the Christian family, not to speak publicly about the case and their beliefs on marriage.

Rick:

Wow.

Even the Liberal Court of Appeals Overruled It

Kelly Shackelford:

So, even in this liberal court of appeals they overruled that. The rest of the First Amendment, they didn’t find any violation of. From all the other violations of forced speech and religious freedoms violations, the fact that the judge who heard their case before he ever heard their case said publicly that the Kleins needed to be “€œrehabilitated”€. That”€™s due process, no. So, all those things they rejected, bad decision by the Court of Appeals. Oregon is known to be a liberal state and so that wasn’t too surprising. The next step is you can go to the Oregon Supreme Court and then after that to the U.S. Supreme Court. And so, many people say if the current case at the Supreme Court, the Masterpiece Case, doesn’t sort of solve this issue once and for all. Which many think it won’t because there are some facts that it could easily be disposed of in a very narrow way. Then this very well, the Klein”€™s case, the Sweet Cakes Bakery case, out of Oregon will be the case coming up in the future that would be heading right towards the Supreme Court.

Rick:

And so folks can, and not just folks, but help me keep keep this straight as well, Kelly. So, the Masterpiece one, that’s the Colorado bakers, right?

Kelly Shackelford:

It is.

Rick:

That’s the one that’s before the Supreme Court right now already being argued and we’ll get a decision on that maybe March, maybe not till June. That one is somewhat similar, but you’re saying they might could find that one on some narrow grounds leaving open a lot of these other issues. And the Kleins then in Oregon, that case could potentially then end up at the Supreme Court.

Masterpiece Case

Kelly Shackelford:

Yeah, I think that’s very possible. The the oral argument in the Masterpiece Case which you know I was there at the Supreme Court. It was pretty clear that Justice Kennedy, who’s the swing vote there, saw that there was a clear bias against Jack Phillips, the baker, on the basis of his religion. And there was hostility to religion by the government.

And so if– you could easily just say, “€œHey look, in this case there is bias and prejudice. This is religious discrimination. Therefore case over.”€ And you never really decide sort of the future of how these cases are handled, you just deal with somebody very factual in that case. If that’s how they rule, which very well Kennedy is going to decide how they rule in that case, then really it sort of kicks the can down the road a little bit on the big issues of the First Amendment issues of compelled speech and religious freedom.

Again, I think the Klein”€™s case would be one of the, well, the biggest cases in the country that would be headed that direction that could be the one that solves this. Now by then, I think, you would have one or two more justices on the Supreme Court appointed by President Trump. So, you’d probably have a very different court as well. Which I think would increase our chances dramatically that we would have a good result there. But we’ll have to wait and see.

Rick:

Well, speaking of that, while I”€™ve got you, the appointments from President Trump – several confirmations even in just the last few weeks. So, while some said after the Alabama Senate defeat which was strange circumstances in many, many, different ways. But some were saying, “€œOh, that means– that’s a sign that Trump”€™s done.”€ All the while the media was obsessed with the Alabama Senate seat. Man, we got a lot of good judges approved at the federal level.

President Trump Has Set a Record

Kelly Shackelford:

Absolutely. That to me, this is one of the most important things happening. And so when, after the election, one of the things we started working on is judicial nominations. There are 160 some odd seats that the president is filling. And these are lifetime appointments and that will only increase that number as more retire and step off.

But, of the 160, he’s already set a record. Because in the first year of his presidency, President Trump not only appointed or nominated, but the Senate actually confirmed 12 Federal Court of Appeals judges. These are lifetime appointments. No president in the history of the United States has ever gotten 12 confirmed in the first year.

So, the last one was a guy by name of Jim Ho. Jim Ho was probably our most active volunteer attorney in the country at First Liberty and is a staunch conservative, brilliant lawyer, clerked for Justice Thomas on the Supreme Court. He is now going to be on the Federal Court of Appeals right underneath the Supreme Court for the rest of his life. So, these appointments, they”€™re for 30 years.

Rick:

Yeah.

Kelly Shackelford:

One of the guys, I don’t know if you know this, Rick, but one of the guys who on our staff   Mack * who’s a staff member, a lawyer, at First Liberty Institute. He went through his Judiciary Committee hearing about three weeks ago. Did an excellent job and widely reported that he will– should plow right through and be on the bench, again, federal judge. He’s very young, probably will be on the court for 30 years. And be there even when not my kids, but my grandkids have a case in federal court will have a guy who’s solid, who’s never going to turn from the Constitution.

He’s going to do the right thing and he’s going to be exactly the kind of federal judge we need. This is happening all over the country.

Rick:

Yeah, the the 8th Circuit, it was Judge, does he say, Grasz?

Kelly Shackelford:

Yes, Grasz.

The Federal Judges We Need

Rick:

Grasz, so he got actually confirmed at this point now, right?

Kelly Shackelford:

Yeah.   

Rick:

So, there’s another one.

Kelly Shackelford:

Oh yeah, absolutely. We’ve got Kyle Duncan who’s about to be confirmed. He went through the Judiciary Committee. He’ll be on the Fifth Circuit.

Rick:

These are guys, like you’re saying, that have either been champions for us as attorneys–

Kelly Shackelford:

That”€™s right.

Rick:

— fighting these battles and winning. In Grasz”€™s case, he’s been very outspoken for Constitutional principles and somebody we know has the right perspective on those things. So, this is– these aren’t like middle of the road, we don’t know what they believe or where they stand, they might be good, they– no, that”€™s not what we’re talking. We”€™re talking about good justices the kind of folks that we’ve been saying we wanted to get on the bench for decades now. So, these are huge, huge, victories.

And, Kelly, we’re about out of time, but I got to get your thoughts on– because the ABA, the media, keeps talking about Trump’s appointments are not ABA approved or says they’re not, American Bar Association says they’re not qualified. And people immediately think, “€œOh, well then what in the world is he appointing them for? Can you help put some shed some light on that?

The ABA is Very Liberal

Kelly Shackelford:

I think everybody knows the American Bar Association is very liberal. There was a takeover and it’s a massively liberal organization. And there’s a lot of politics, unfortunately, in what they do. So, really, on the conservative side, the ABA’s approval of judges is not taken very seriously.

Even in that case, I would point out that of the around 60 judges that the president has nominated so far, there’s only been two or three that I can think of that they rated unqualified. So, even with their politics, which is over the line and has been historically against conservative judicial appointments. People make make hay of the fact that they found two or three of 60 nominees. But that shouldn’t be surprising number one and it’s pretty low, actually, when you look at it. These people that they’re nominating are high quality.

These are people that clerked at the U.S. Supreme Court, they’re brilliant lawyers. I know a number of them. These are the highest caliber in the country. And unlike in the past when a president was in the– was a Republican. Instead of their political buddies, they’re not doing that.

They’re picking strong, staunch, guys with great judicial philosophy, who are never going to sort of turn and go, “€œWow, what happened to him?”€ in the future. These are people who are solid.

Rick:

And just to be clear for our listeners, when you say “€œthey”€ are are picking, we’re not talking about the ABA anymore picking. This is Trump’s team.

Kelly Shackelford:

That’s right.

Rick:

And the folks that are vetting these potential justices and that they were talking about here– and it”€™s the basically the Trump administration. And again, I”€™ve got to reiterate, we all went into this hoping for 50/50 maybe and we”€™re getting 90-95 percent. Just outstanding nominees and now confirmed judges.

Gorsuch-Type Judges on the Lower Courts

Kelly Shackelford:

Yeah, think of Gorsuch on the Supreme Court. And now multiply that times 160 in the lower courts. These are the kind of judges we’re getting on the court. I mean, this kind of solid judicial temperament judges who won’t legislate from the bench, judges who won’t take issues off the table that should be in the democratic process because they want to decide it for the country. They know that’s improper.

And these are people that are going to defend the Constitution to their deaths. These are brilliant, thoughtful, very accomplished, lawyers who are ready to– and many of them making huge sacrifices in salary. But they’re doing it because they do want to stand for those principles. They’ve seen what’s happened to our judiciary. As it has become more politicized.

And they want to make sure that we have good judges on the court. And again, when you talk about people that work for First Liberty going on to the court, I think that tells you a lot about my people.  

Rick:

Yeah, no doubt.

Kelly Shackelford:

These are these are believers who are staunch not only in their faith, but on preserving the Constitution for our kids and our grandkids. And people should be encouraged by that.

Rick:

Man, Kelly, you”€™re getting me excited, optimistic going into 2018. Kelly Shackelford, the website – FirstLiberty.org. Folks, get on that website donate, get on the e-mail list, help these guys continue to win these battles and fight for our liberties. Kelly, looking forward an update on all your cases. Let’s get you back again soon.

Kelly Shackelford:

Happy to do it.

Rick:

Stay with us, folks! Right back with David and Tim Barton.

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Rick:

We”€™re back on WallBuilders Live. Thanks to Kelly Shackelford for joining us today. We’re back with David and Tim, and guys, he’s as optimistic as we are about what’s going to happen with these judicial confirmations. We didn’t get into– didn’t have time to get into it, but really, that means good news for decades to come. He was talking about how long some of these judges will be on the bench. But let’s talk about what that means. That means more victories, that means more upholding the Constitution, that means restoration, literally of those Constitutional principles.

David:

I’ve got to stop for just a moment. This may need to turn into a Good News Friday program, but I heard him say something that, to me, is a massive, massive, statement. Because we’ve looked at that Jack Phillips case at the Supreme Court and pretty much thought that it probably will go the wrong direction 5-4. As Kelly explained, there’s a way for him to rule for Jack Phillips and not deal with the issue and get out of it. But, I’ve been pretty convinced that Kennedy is probably on the wrong side of this, but I thought that we actually might be surprised and pick up a judge.

Will Justice Kennedy End Up on the Right Side?

David:

We don’t count on. I think there’s a possibility still that may happen. However the fact that he says that he thinks Justice Kennedy was really swayed by the tone of the anti religious bias against Phillips. The fact that that really struck Kennedy, now that really kind of changes the complexion. Because if Kennedy ends up on the right side of this, then this and again they can decide it narrowly and not decide the issue of the gay marriage persecution stuff.

But that was a huge to me when he said that about Kennedy.

Tim:

Well, it was also encouraging that he pointed out that even with that, the Oregon Baker, the Klein family, that there’s a chance that whatever happens with this Phillips case that this case could be something that’s kind of almost an anomaly to the Jack Phillips. It’s different because of what happened to their family because the fine was imposed on them. And so even if this fill ups if Kennedy did go the wrong way with Jack Phillips that there’s a chance the Klein case still makes it to the U.S. Supreme Court. And if it does, at that point, there could be one or two justices different–

David:

Yeah, I thought that was a great point, too.

Tim:

— and then you could have a very, very, different outcome at that point. So there really is some positive things. Even speaking of the Klein case, one of the things that Kelly pointed out was really good news that was kind of overlooked in some of these sayings, is the fact that there was a restraining order, a gag order, put on the Klein”€™s from Oregon saying, “€œYou’re not allowed to talk about this, you can’t go on any media. You can’t do anything public with it.

“€œYou just have to sit there and take whatever we’re dishing on you. And you can do anything about it.”€ So, for them, even though they didn’t win this case, but for the federal level to go, “€œWait a second, no there cannot be a silence put on you for this. You actually can get out and speak about this.”€ One of the things we had talked about before is one of the reasons Oregon might want to be kind of squelching their ability to communicate is because it would make Oregon look very bad.

You Don’t Lose Your First Amendment Rights Because You’re in a Court Case

 

Tim:

And so now if you a federal judge saying, “€œWait a second, no you don’t lose your First Amendment rights because you’re in a court case. You can still speak about the issue, you can still talk about what’s happening, what’s going on.”€ It now has the opportunity to go to the court of public opinion. And I really cannot imagine very many people that hear their story, that see their interview, that find out that not only were they fined 135,000 dollars, they”€™re bankrupt, they”€™re out of business, the family is struggling right now financially. When you see this story and you realize it’s because you would not do a special design.

It wasn’t because you wouldn’t sell them a cake, it”€™s because you wouldn”€™t do a special design. And that’s why you lost all of your savings account. It’s why you lost your family business. It’s why you’re struggling to financially survive. It now has a chance to get before the public and the public can really sway some of what happens as far as even what justices hear, and see, and think.

And so it really is good news they can finally speak about that. Now, it’s also one of these moments that you just kind of wish that some of these justices would be held accountable for some of this very unconstitutional behavior that they enacted against the Klein”€™s. Nonetheless it’s good news that they now can speak about it.

David:

Well, it’s significant to me when you look at the Klein”€™s and what they’ve gone through. And it makes me wonder – how many Christians in America would stand up for their faith if they knew it was going to cost them what it cost the Kleins? Now granted 90,000 people a year across the world are martyred for their Christian faith. We’re not talking about martyrs here in America. We’re talking about art.

“€œIf You Acknowledge Me Before Men”€

David:

They lost their family business, they lost their income, they’re bankrupt, but they would not back down. And they have stood unequivocal start to finish through this. And I’m reminded of what Jesus says in Matthew 10:32, He says, “€œIf you acknowledge Me before men, I’ll acknowledge you before My Father. But if you deny Me before men, I’m going to deny you before my Father.”€ I mean, He said, I’m going to treat you the same way you treat Me.

Well, if you’re ashamed of Him, and you get embarrassed over Him, or you’re not going to stand up because somebody might say something mean to you on social media. Guess what? That’s the kind of reception you’ll get in heaven. And I really appreciate the Klein”€™s not backing down. It hasn’t cost them their life, but it has cost them so much else.

Support The Kleins As The Oregon Court Denies Justice to Sweet Cakes Bakery

I just kind of wonder how many Christians have the courage of their convictions to say, “€œYou know what, I’m standing. If they beat the dickens out of me, as they have for several years of social media, if I get all the bad headlines in my home state, if I lose everything, I’m not backing down.”€ And I thought that was a really, really, good lesson. By the way, another great point that Kelly points out is another one of the guys from First Liberty is now nominated and gone through the hearings for a federal judge. That’s got to be like four or five guys that have worked with Kelly, have worked through his organization, that are now sitting on courts of appeal or federal district judges.

That’s unbelievably good.

Rick:

You weren”€™t kidding, David, it does feel like a Good News Friday. Lots of great news in today’s program. Special thanks to Kelly Shackelford for joining us today. Thank you folks for listening. You’ve been listening to WallBuilders Live.