Religious Liberty Is Being Persecuted Like Never Before: In today’s episode, we talk with Kelly Shackelford, President and CEO of First Liberty Institute.  He shares how the attacks on religious liberty are increasing like never before…but we’re winning! If we’re faithful then we’re going to keep those freedoms for our kids and our grandkids. We have to stay in the fight because if we’re not faithful, we’re going to lose those liberties. 

Air Date: 10/24/2017


Guests: Kelly ShackelfordDavid Barton, and Rick Green.


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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, all of it from a Biblical, historical, and constitutional perspective.

That’s our three sources that we look at, what does the Bible say about an issue, what can we learn from history, and what does the Constitution say about that particular issue?

We’re here with David Barton, America’s premier historian and our founder here at WallBuilders.  My name is Rick Green.  I’m a former Texas state legislator.

You can find out more about us, the program, and the organization at WallBuildersLive.com.  That’s our radio site. Right there you can listen to the last few weeks.  You can also find out what’s coming up on the program, and also get a list of all of our stations around the country where you can hear the program.

Then at WallBuilders.com there is a wealth of information and resources for you there for your family, for your Sunday School, and for your schools. It will educate you, equip you, inspire you, and you’ll understand why it’s so important for us as citizens to do our part and to understand how we got this freedom and then do our part to protect and preserve it for future generations.

Religious Liberty Is Being Persecuted Like Never Before

Later in the program, Kelly Shackelford will be with us from First Liberty Institute. Right now it’s David Barton. David, obviously this is a very important part of that intersection of faith and the culture. So often people are trying to remove faith from the culture and actually try to prevent people from even being able to live out their faith or say what they believe. That’s really what this whole religious liberty debate in America is all about right now.

David:

I think we can safely say that there’s not been a time in American history that is more hostile to expressions of faith than what we see right now. Part of that comes from ignorance and part of it comes from intent and deliberate will.

I think it’s interesting, for example, that you get legal groups like the ACLU, or like Americans United, or like Military Religious Freedom Foundation, or the others like the American Humanist Association, or all of these groups that despite the fact that they have never won a single case on their claim they still say that what certain places are doing is “unconstitutional.”

In God We Trust

How can that be?  There’s never been a court to agree with you and there’s never been a law passed on that. Not the least of which is what as recently happened in Arkansas. We had Representative Jim Dotson on who talked about how that they passed a bill that if you give, “In God We Trust” to a school they then will display that in the classroom.

The group wanting to sue is saying, “that’s unconstitutional.” How can that be when every single court has upheld, “In God We Trust” is a national motto and the display of that on our currency and everywhere else in public life. So on what basis do you say it’s unconstitutional?

So, I think groups like that are out there on the side of intent. It’s a fairytale that they believe and they want everyone else to believe that their fairytale is reality and they know better because they’ve never won a case.

Every two years, Barry Lynn from Americans United for Separation of Church and State will put out this letter that says, “If you put a voter’s guide you can be sued and taken to court for that.”

Rick:

They’re trying to intimidate everybody.

David:

But it’s also true you could be sued for that because he’s the one who sued and has never won a case on it. So he’s right, you could be sued for that. But he knows that the intent of that letter is to intimidate people.

So, you have that side that is deliberately trying to mislead and then other people who will read those reports, like a pastor will go on to say that the deacons, “Oh, we can’t put voters guides out.”

Fiction of the Law

And the deacons will say this to the school board official, “Hey, we can’t put a notification out.” And the school board official will say to the teacher, “Hey, don’t say anything about-” and it just keeps going on downstream. It becomes what’s called, “The Fiction of the Law.”

You’re acting on a fiction but you act as if it’s the law so you’re living by a law that is false, that doesn’t exist. But that’s what you’ve been told. So there is some of that but there’s just some pure maliciousness that goes with some of that too.  

The fact that you want to file- you want jail time for people who don’t want to participate in a homosexual wedding, or be a photographer, or a baker or whatever, you want jail time for that. Are you kidding?

Rick:

And when you say, “malicious,” it literally springs from a hatred of religion and Christianity.

David:

Yes, it is. I think that it’s easy to say that at this point in American history there has never been such a loathing, such an open hatred, and disdain for religious expressions that had always been accepted in America but are rejected now, as there is right now. There’s never been a desire to penalize in the way there is now.

Kindergarten Aged Kids Getting Handcuffed For Praying At School

We’ve never seen, for example- what was it, last year? A six-year or five-year-old kid get handcuffed at school and taken to the sheriff’s department and then another 6-year-old kid gets a visit at home from the sheriff’s and said, “Don’t ever pray at school again.”

We’ve never seen that happen before like we’re seeing now.  So, this is a new era and it’s an unfortunate era because that should never be part of who we are as a nation.

But this is the kind of stuff that Kelly Shackelford has to deal with on a regular basis.  Hundreds, and hundreds, and hundreds of times they have had to deal with just defending what always used to be completely 100% constitutional. By the way, it still is today. It’s just that people who don’t think that it is.

Kelly keeps a report that they come out with every year listing all of these kinds of incidents because people say, “This is just a bunch of rhetoric. This is hyperbole. It’s really not that bad.” Kelly comes out with a list of court decisions and legal proceedings that of that have involved this type of hostility.

Rick:

Actual cases and actual action so this is not where, “Oh, somebody said this.”

David:

That’s right.  

Rick:

This is what’s been filed in the courts. He’s showing the actual hostility.

Hostility Toward Christians Like Never Before

David:

This is good for every single person in America to see, because the more you see how common this is, the more you’re willing to stand up and say, “This is not right. Somebody’s gotta do something.”

That’s what motivated David to go against Goliath back in first Samuel 17. David said, “Is there not a cause? Shouldn’t somebody do something? This is not right.” That’s the King James version, “Is there not a cause?”

But, “Isn’t there a reason to stand up and fight? You can’t let Goliath talk to us like this.” When you get informed and see how big the giant is then you get motivated to do something.

Is There Not A Cause?

Kelly Shackelford, great guy.  He’s on the frontlines. They are one of the premier legal groups in America. He’s argued these cases in the U.S. Supreme Court and won. A really good guy to talk about this.

Rick:

Kelly Shackelford, our special guest.  Stay with us, you’re listening to WallBuildersLive!

Moment From American History

This is Tim Barton from WallBuilders with another moment from American history. Many today assert that religion is something private, that has no place in the public square, and that it is incompatible with government.

The Founding Fathers believed exactly the opposite. They held that religion was absolutely necessary in order to maintain our free system of government. For example, John Adams declared, “We have no government armed with power, capable of contending with human passions unbridled by morality and religion.”

And signer of the declaration, Benjamin Rush, similarly affirmed, “Without religion, there can be no virtue and without virtue, there can be no liberty and liberty is the object and life of all republican governments.” The Founding Fathers understood that limited government required public morality from the people. And that public morality was produced by the Christian religion. For more information about the Founding Fathers views on religion in public life go to WallBuilders.com.

Religious Liberty Being Persecuted At Every Age

Rick:

Welcome back! Thank’s for staying with us here on WallBuilders Live! Our good friend Kelly Shackleford back with us from First Liberty Liberty Institute. Kelly, always doing great work. Got a lot of great cases out there where you guys are constantly defending religious liberty and protecting it. But you also do a report every year. Unfortunately, once again, an increase in attacks on religious liberty. Tell us about your new report.

Kelly Shackelford:

We’ve done this every year and the scary thing is that in the last five years alone the increases in attacks has gone up by 133 percent. So, that’s a real message to people that- unfortunately, the attacks on religious freedom aren’t lessening, they’re increasing.

Increases In Attacks Has Gone Up by 133 Percent In The Past 5 Years

What you realize, when you look, Rick, at this report-and by the way, anybody can. You can look at it online, you can order a copy from us.

You can go to FirstLiberty.org/Undeniable and it’ll take you right to that page or you can just go to FirstLiberty.Org and find it. But the easiest way is to go to FirstLiberty.org/Undeniable. You can just look through these.  Just peruse through all the cases, all the attacks, they’re all citable.  It is not anything anybody is making up.

We have a cite for every one of them where you can see him, where you can go to this.  What you realize quickly is this is in every part of our country.  It’s in every community, and it’s in every state.

You might think, “Oh, it’s up in Massachusetts or New York.” No, it is everywhere, and it’s every age group, and in every walk of life. Whether you’re a 5-year-old girl, for instance, Gabrielle Perez being told that she can’t bow her head over her meal because “It’s not good to pray in school.”  To senior citizens being told, “We’re going to take your meals away because their federally funded meals and you’re praying over meals and that would be a separation of church and state.” It doesn’t matter if you’re young or you’re old.

The Federal Court Of Appeals Wants To Take Down Veteran Memorial Crosses

Rick:

And military. You guys are dealing with a ton of military cases as well.

Kelly Shackelford:

It’s incredible the attacks on the veterans’ memorials. I think most people have heard about those. The one that’s at the top of the list now is Bladensburg right outside of Washington, D.C. It was put up not only by the American Legion.  He’s one of our clients, but also by money from mothers who had given money in honor of their dead children who died in the war.

That’s been up for- we’re closing in on a hundred years. Crosses are used all over the world for that. It’s sat there and now the American Humanist said, “Hey, you’ve got to tear it down.”

It’s really shocking, we just had the argument at the Federal Court of Appeals in December. Two of the three judges on our federal court of appeals panels were appointed by President Obama. One of them asked the following question- and again, don’t believe me, it’s in the Washington Post.

Rick:

Wait, are you suggesting I should believe the Washington Post?

Kelly Shackelford:

Well, they would say what I’m about to tell you, so you know it’s true. They said- and because this is true, this was the question that this judge asked at the Federal Court of Appeals, “If we just cut the arms off this cross wouldn’t that take care of any offense?”

Rick:

Wow.

Kelly Shackelford:

So, this is the attitude. We could very well have a veterans memorial being torn down because it’s a cross.  That could be the decision of the Federal Court of Appeals. Of course, if that happens we’re going straight to the Supreme Court because there are veterans memorials in every community of every state of this country.

You go to the Arlington Memorial Cemetery, you’d have to bulldoze and sandblast all kinds of things. But these are the kinds of battles that we’re now having to fight.

Rick:

And these are being fought in the federal courts and unfortunately after eight years what did President Obama get? Maybe half of the federal judiciary appointed during that time?

Kelly Shackelford:

That’s exactly right. That’s a lot of judges. Of course on the flip side, President Trump I think- when I looked last, just in the last couple of days, there are 149 federal judicial seats waiting for him to fill. So he can he can begin to catch up pretty quickly.

More Great Appointments Made By Trump

One of the things that is sort of going under the radar to the average person is he’s actually doing that. He has nominated a number of- your listeners would just be thrilled with the quality of judicial nominees that he is nominating. These are folks at the highest level- of course, Gorsuch, everybody knows about, right?

Rick:

And is already proven to be- even just some of his concurring opinions that I’ve read, I’ve had to pinch myself and go, “This is a huge victory.” This guy’s going to be great for decades to come.

Gorsuch Was A Great Victory

Kelly Shackelford:

I predicted he would be more conservative than Scalia and I think that’s probably what’s going to be the truth.

Rick:

I agree.

Kelly Shackelford:

You could look at the 2,000 opinions he had written and you could see a number of decisions on religious liberty. Which is what First Liberty, that’s all we do is religious liberty. We were reading opinion, after opinion, after opinion, every one of them was excellent. Whether he was in the dissent on the right case or the majority on the right, he was always right. What he wrote was always solidly on point and constitutional.

But that’s just the beginning. That’s what I want your listeners to understand, that’s just the Supreme Court. We’ve got federal courts of appeals across the country in federal district courts.

The people that are being appointed are the type of people that work in organizations like mine. They’re former volunteer attorneys we’ve had who- these are the top attorneys in the country who could be making a lot of money and instead to say, “You know what? I want to give my time on one of these cases for religious freedom and I’m going to give hundreds of thousands of dollars because I care about this and I care about the Constitution.”

To see people like that appointed to the highest courts, you know that those people not only are they going to be there probably 30 years from now, for our kids and our grandkids, but they’re going to preserve the Constitution.  They’re going to follow the law, and they’re not going to go with the political winds of the day.

You talk about making a difference.  Wow, that will really make a difference.

Rick:

It’s huge! I have to admit, I honestly thought back during the election- obviously, Trump was a far better choice than Hillary and a lot of things there that we were hoping for but I thought it was a gamble. I thought, “Maybe some of his appointees will be good.” But man, I am blown away at how many good ones there are and how good this looks.

In the context of our previous conversation a few minutes ago, if you’re getting more attacks, more and more religious liberty attacks, and this hostility is growing, it’s even more important that we have good judges that will actually look at history, and look at the Constitution, and come to the right conclusion on these cases. I don’t want to see more attacks. But the fact that they are happening, I’m very happy about the fact that we’re getting more good judges to deal with those attacks.

First Liberty Wins 90 Percent Of The Cases

Kelly Shackelford:

Absolutely, it’s going to be very important. Here’s the even better news of all of it.  We’ve been doing this a long time at First Liberty. Even daring the past administration, those eight years, we’ve kept the same win rate. We’re winning over 90% of these cases and we have every year for over 17 years.

Why? Number one, our attorneys who donate their time from all of these major law firms are the best of the best. They’re excellent.  

Number two, because this country is built on religious freedom. The law is on our side.

Rick:

That’s right.

Kelly Shackelford:

If people are just willing to stand up, we’ll win these cases.  And we are winning these cases.  The record shows it. I don’t want people to get discouraged.  The attacks are increasing but we’re winning.

If we’re faithful, then we’re going to keep those freedoms for our kids and our grandkids. If we’re not faithful we’re going to lose those things.    It is good news that we’re winning and it’s good news that we’re beginning to put judges on the court.

But I look at all this sort of as an opportunity but it’s an opportunity we have to take advantage of or we’re going to look back.  Well, our kids are going to look back at us and go, “Why didn’t you do anything? Why did you let these freedoms go?” Because we’re in a huge- you know this, we’re in a huge battle right now over the very issue of religious freedom.

Battle For Religious Freedoms

People question me sometimes on that. I could challenge them. Tell me one state in the United States right now where you can pass a religious freedom bill. You can’t. We’re in the middle of a real battle over whether we’re going to have religious freedom. Winning these cases, setting this precedent, and going back to the Founders is crucial in I think the next five years.

Rick:

No doubt, no doubt. What you just said almost sounds exactly like the Reverend Matthias Burnett in 1801 when he said, “Don’t let your children have reason to curse you for giving up those rights and those liberties that you’ve been given.”

It’s so true, Kelly. It’s on our watch right now as this battle rages.  And we see more of this hostility.

Undeniable

Folks, you can get that report “Undeniable” right there at FirstLiberty.org/Undeniable.  Go take a look at that and it will wake you up and you’ll see that hostility, the battle rages, but thankfully we have wonderful people fighting for us in the trenches like Kelly and his entire team of attorneys.

By the way, at that website at First Liberty you get on their email list you can be updated on these cases.  You can donate to help them fight these battles, this stuff takes money. Kelly, even when the attorneys are volunteering their time there’s still a lot of expenses and things when you have to fight these things, right?

Kelly Shackelford:

Oh, absolutely. The way it works for us is every attorney we hire on staff frees up about 20 of these national litigators to give their time. That’s how we’re able to do more and more cases is by having the support staff to support these top of the top attorneys. Because there is out of court fees. There are deposition fees, there are expert fees, and they need a certain level of support in order to do these cases.

Man, here’s the way I put it sometimes Rick.  We’ve got 100 Ferrari sitting in the garage and there are all these people that need a ride. We just need a gallon of gas in each of the Ferrari’s.

Rick:

I love it. That’s good. Alright, folks, put a gallon of gas in and go check out FirstLiberty.org. And be sure Kelly’s email list as well so you can be updated on those cases. Kelly, appreciate your, brother. Y’all keep up the great work over there! And let’s get you back again soon!

Kelly Shackelford:

Oh, I enjoy it, Rick! Thank you for all you’re doing.

Rick:

Stay with us folks, we’ll be right back with David Barton.

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No Surprise About the Increase in Attacks Towards Christianity

Rick:

Welcome back to WallBuilders Live! Thanks for staying with us and special thanks to Kelly Shackelford of First Liberty Institute. We’ll have links to their website at our website today there at WallBuildersLive.com.

Back with David Barton now. David, I know no surprise to you had the number in terms of hostility towards Christianity in the country right now. Certainly, important to have guys like Kelly on the front line, and great news from the standpoint of getting some good judges that will uphold the Constitution and protect these rights.

David:

It’s no surprise that as Kelly said- 133 percent increase in hostility cases over recent years.  So we knew it’s rising. This is the most ever.  It’s a record from that standpoint and to even think as Kelly was explaining the argument they had on that cross. To have a federal judge say, “Can’t you just take the arms off the cross? Wouldn’t that solve it?”

Really?

That’s kind of like Congressman Hank Johnson saying, “Hey, if we build a military base on Guam it’s going to capsize. The island is going to tip over.  It’ll be too heavy on that side of the island, and it will flip over and go..”

Really? That’s your thinking? That if you take the arms off a cross it wouldn’t be offensive.

Do you know what that means? That means America is really much more religious than I thought it was under these Obama judges. Because that means that every single telephone pole in America used to be a cross before the Obama judges and seculars got a hold of it and took the sides off the cross.

Really? This is a federal judge?

Rick:

Yeah, yeah! At that level, we’ve got somebody at that level saying something like this.  

David:

At that level, and they’re the ones that are going to be deciding on these issues.

Appointments of Judges

Now, you asked about appointments of judges, and got me thinking so I looked it up real quick. And what happens, because we’re talking about now- I think Kelly said 149 Article 3 judgeship positions that are open. Article 3 means these are the courts created by the Constitution, created by Congress according to the Constitution.

So there’s about 874 of those courts. With 874 of those courts, Trump has 149 vacancies. What that means at this point is about 18 percent of the federal judiciary is currently open. One out of five judgeships is open at this point.

Now that’s a lot of judgeships for him to fill- not counting those that are going to retire over the course of it. He has now submitted his eighth group of nominees. So Trump has now put his eighth group in.

And groups seven and groups eight both included folks that work with Kelly on a regular basis, and so did the other groups.  But groups seven and eight actually had folks that worked side by side with Kelly on a daily basis.

So we’ve got some really good judges in these groups. I look back to see, “Alright, what is the appointment rate?” Because you already have here eight months into Trump’s- or now 10 months- into Trump’s administration. You’re looking at having about 18 percent of the judiciary that’s wide open for him.

Judge Appointments of Previous Presidents

So how did they go with other presidents? Well, if you look back- Jimmy Carter had four years. And in four years he appointed 239 judges, or that is 30 percent of the judiciary, in four years.

Reagan had eight years, and he appointed 43 percent of the judiciary. That’s the most by any president- 376 judges.

Clinton had eight years. He appointed 43 percent- 373 judges.

Bush had eight years. He appointed 37 percent- 325 judges.

Obama had eight years. He appointed 38 percent- 329 judges. So roughly you’re looking at what would be in the vicinity of about 40 percent if you get eight years.

I think Trump is ahead of that pace right now. We’ll see. But if he keeps making appointments the caliber and the quality of what he’s done so far in the first eight batches– that’s really, really good.

Rick:

I wanted to ask you about that, if you felt the same as Kelly about- just the quality of these judges. I know you’ve been very involved in looking at them, and you’ve got a good handle on who’s going to be there on the Constitution and original intent. What are your thoughts on who he’s appointed so far?

Caliber and Constitutional Judge Appointments by Trump

David:

I’m sure there are some in there that are not what I would want- but so far all the ones I’ve looked at have been exactly what I probably would have pointed too.

Rick:

Wow.

David:

I think he’s probably appointed maybe 80 so far, and I think the Senate has confirmed about a dozen. So if there’s a hold up here, we’re talking the Senate. Oh imagine that! The Senate is the roadblock? Mitch McConnell? I can’t imagine that! It’s only been that way for the last seven or eight years!

Nonetheless, the caliber and the quality of appointments are great constitutional folks that are not hostile to religious values. Those two components together- man, that bodes really well for the future with what the president is putting on.

I was like you, hoping we would get some good judges. I knew we probably wouldn’t get any from Hillary, but I was hoping that even if we got 50 percent from Trump- that’s 50 percent better than what we’ve got from Hillary.

Rick:

That’s what I was hoping too.

David:

But we’re looking more like probably 90 or 95 percent- and man! I don’t think Reagan did that well- quite frankly.

Rick:

No. Well, he certainly didn’t with his Supreme Court.

David:

Absolutely.

Encouraging on Two Fronts For Religious Liberty

Rick:

We won’t get into that.  But no doubt- just really, really encouraging. So on two fronts encouraging: one– the fact that we’re getting these good judges appointed.  And two– that we’ve got lawyers like Kelly Shackelford out there.

That continues to grow.  All the great organizations and attorneys coming out of these Christian law schools.  And frankly, some of them come out of the bad law schools.  But they’re getting going and working with guys like Kelly and getting the truth. It’s just great to see what’s happening. This is a very, very positive response to all that hostility towards Christianity.

Thanks for listening today folks! Thanks to Kelly Shackelford and the good work at First Liberty Institute. We appreciate you listening to WallBiulders Live.