Huge Changes Happening For Religious Liberty At The Supreme Court:Â The Supreme Court has been acting like it has the power to override what”s in the constitution. However, we’re at a point now where there’s a real opportunity that the Supreme Court may go back and clean up all of this nonsense. They may rollback 30 to 50 years of bad cases that we’ve had! Tune in now to learn more!
Air Date:Â 02/13/2019
Guest: Kelly Shackelford
On-air Personalities: David Barton, Rick Green, and Tim Barton
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Transcription note: Â As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.
Faith And The Culture
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 kinds of different areas whether we’re talking about the courts or education or politics or economics.
Whatever that topic might be we always look at it from a biblical, historical and constitutional perspective.
We’re here with David Barton America’s premier historian and the founder of WallBuilders. Tim Barton is with us national speaker and pastor and president of WallBuilders. And my name’s Rick Greenham, a former Texas legislator.
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The Redefining Of The Constitution
So obviously you know one of the major intersections of faith and culture that we talk about a lot is is freedom of religion and being able to express that faith. And unfortunately, the Constitution doesn’t seem to be the final say on that anymore. It’s the courts that are redefining what the Constitution says, and that’s of course been a major area of litigation over the last 50 years.
You know the courts have definitely redefined it when you read the constitution is really simple. The Religion Clauses are very simple; Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. That’s it.
Well guys, let’s point out the words are simple but without knowing the context of history, it does make a difference because how do we determine, establish a religion? What does that mean?
And this is where courts have gone off the deep end presuming that to mean something it certainly historically never meant. But when you don’t know basic history, which most Americans today don’t it’s easy to mislead someone when they don’t know truth, and we talk about on the show often how important truth is in absolutes, and we need to know what’s right and pursue truth.
Founding Fathers Were Pursuing Religious Freedom
The reason it matters in situations like this is because when you don’t know that the Founding Fathers were dealing with; a state-established church or in this case a monarchy established church that they’re trying to find religious freedom. And you look at how many people came to America that were pursuing religious freedom that had endured religious persecution, and this is where America was so heavily populated in the early years.
Well, if you don’t know that context; if you don’t know there were state-churches that were forcing you to be part of this denomination and you couldn’t be in the state or you couldn’t be part of this nation or you were persecuted for not being part of this denomination, if you don’t know that it’s harder to understand what this might mean and how it applies.
But when you recognize oh that’s what an establishment of religion is that if you’re not a Catholic, we persecute you and kick you out. If you’re not Anglican, we persecute you and kick you out or whatever denomination. It was all of a sudden the context gives an understanding to the meaning of the words even though dad as you’re saying the words are very simple.
It’s really simple when you understand the context, and if you don’t understand the context, I do see how it can get convoluted although not as convoluted as we’ve made it today.
We Have To Understand The Context of The Constitution
Yeah. And what happens with understanding context as Tim was just going through in a good 15 to 20 minutes you can note the actual intent of what they said in that clause because it’s a real simple clause.
All you have to do is read something like Joseph Story”s commentaries on the Constitution 1833. Founding fathers helped create that and says hey you can’t set up a national denomination. Period end of story. Congress can’t make us all Catholics or Presbyterians or Baptist or whatever.
End of story then judges come along and say Well well well well what we think and that’s where they came up with what’s called the three-prong Lemon test on a case called Lemon V. Kurtzman back in the early 70s. They said we think that what establishment means is not setting up a national denomination. We think that you can’t have a policy that’s religious unless it first promotes something secular.
Which most religion does
Generally, no, that’s the antonym of religion.
So what happens is if you want to pray. The question is what is the secular purpose of prayer? Well, it doesn’t have a primarily secular purpose so you can’t pray in schools. That’s not established in a national denomination.
Theism And Denominations
And this is where they went off the rails to where it’s not just preached preventing the establishment of a religion this case right a sect of religion and domination. They’ve really made it something that you cannot promote theism. You cannot promote anything that believes in God because God is religion and no no no no.
Right again go back to the context it was about forcing people to believe in one specific thing, and this is where today the courts argue Well that’s what Christians are trying to make us all Christians.
Theism is different than establishing a denomination which is ultimately the context of what we’re talking about because the founding fathers they were from multiple different denominations, and some were non-denominations right.
They weren’t frequent church tenders although the majority were but even the ones who we would argue today or at least other people argued today were the more secular of the founding fathers, even they believed in God. You will be hard pressed to name any founding father who did not believe there was a god.
Now there might be a couple who fall in the D category, but they still recognize there’s a divine creator which is why when you read the Declaration we believe that we are endowed from our Creator. We believe there was a god, but we just thought you can’t force people to be part of a certain sect. And so that’s why even this limit test it’s more anti-God than it is anti a sect of religion or denomination which is what the first amendment was really about.
We actually have a teaching on this that you can get MP3 or CD. It’s called, God in the Constitution.
The Constitution Acknowledges God
When the Founding Fathers did the Constitution, they had no concept that this was a secular godless document.
I mean George Washington in his farewell address said the two things that have made our politics prosperous are religion morality and he wouldn’t let you call yourself a patriot if you wanted a secular government.
So there was never a concept that as the Supreme Court has made it that you have to have a religion-free constitution. Whether it be by quoting specific Bible references are using policies from the Bible.
They acknowledge God.
For example Article 7 and the attestation clause. They made it very theistic, and now the courts are saying well we think that the Lemon Kurtzman thing you can only have something about God if it has a secular purpose.
And there’s just going to lose every time. So it’s really messed up.
The other place where they messed it up as a free exercise clause where the government’s not supposed to be able to limit your free exercise of religion unless as Jefferson said you’re physically doing injury to someone else or you’re undermining the morals of the nation.
If you’re doing that and the government’s going to stop it outside of that, they’re not. And so in a case called Oregon v. Smith back 30 years ago, the court said, well we think we should be in charge of determining what your religious expression is going to be.
And we don’t think for example that you should be able to have a religious expression that says I’m not going to do flowers at a gay wedding, or I’m going I’m not going to do a cake and bake a cake for a gay wedding, or I want to kneel down as a teacher and thank God for a football game where nobody got injured. Â We’re not going to let you do that.
We’re going to decide what your free exercise of your religion can be. And so in both of the areas of the Constitution where it’s really simple to what it says, and the founding fathers were prolific writers and made abundant commentaries on what they intended.
The Courts Have Substituted Their Own Will
The courts have come and has substituted their own will. And so for the last 30 to 50 years it has been really really messed up in America as far as original intent of the Constitution goes on the religion clauses, and the price has been paid by people of faith who can no longer express their faith and the way that they see the Bible is teaching it.
So I think you guys are just misreading the clause. I mean, you’re throwing this word free exercise, it says micromanaged exercise of religion.
I forgot that to put on my tinted glasses get out the lemon juice and read the back of the Declaration and yeah
It was just it was the 28th amendment it was adopted by the states. You know just a few years ago. Right. We changed the constitution not to have free exercise of religion but micromanaged. Oh no, wait there wasn’t an amendment. That’s right. That was just the Supreme Court thinking they had the power to amend. Yeah.
But we’re at a point now where this very year it looks like there’s a real opportunity that the Supreme Court may go back and clean up all of this nonsense. They may rollback 30 to 50 years of bad cases that we’ve had.
There’s some good stuff going at the Supreme Court. One of the guys who’s arguing cases at the Supreme Court this year he’s got cases there. Kelly Shackelford good friend out of First liberty and so Kelly is going to kind of update us on what it looks like landscape at the Supreme Court this year.
And I’ve got to say this is the most optimistic look from the Supreme Court on religion clauses in the Constitution in my lifetime.
And so this really is big stuff.
Good things ahead folks. Stay with us, we’ll be right back with Kelly Shackelford from First Liberty Institute.
This Precarious Moment Book
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Welcome back thanks for staying with us here on WallBuilders Live.
Kelly Shackelford is back with us. First Liberty does fantastic work all over the country. Frontlines literally and Supreme Court cases and cases all across the country and we’re just blessed to have him and call him friend. Kelly good to have you back bro.
Hey you. It is a privilege to be on here any time with you and David.
Movements And Trends In The Courts
Well hey man you. You really probably have a better handle on kind of the movement of the court than anybody I know in terms of the trends and the new judges and what’s going to happen with religious liberty. You had so many different cases on religious liberty and seen there kind of changes over the last 20 years there.
There’s some opinion, or I guess it was a statement in the last month or so that people are saying, hey the court’s basically asking you guys bring us more cases so that we can solidify religious liberty. Is that an accurate description of what you’re seeing.
Yeah. It’s actually incredible what’s happening. And Rick I would encourage people. There’s no way I can give them all the data in our you know short interview but so if they want it later go to First Liberty dot org, and there’s a deal on the judges if they want to look at all the judicial seats they’re being filled, who these people are, which ones are up all that. If they want to focus on that.
If they want to focus on the two huge cases, then I’m going to mention. But we you know there are two religion clauses – the Establishment Clause and the Free Exercise Clause. Both of them have some really bad cases from the past that have been causing problems. And literally, it seems like we now have a court that wants to follow the Constitution.
Go Back To What The Constitution Says
They seem to be ready to get rid of the garbage and get back to what the Constitution says which will free up religious freedom in an incredibly positive way.
And you know there’s two ways this has happened. Number one the Bladensburg Veterans Memorial, the cross that case we’ll be arguing on February 27 at the United States Supreme Court, and there’s a lot of bad Establishment Clause jurisprudence as you know all this stuff on the wall of separation all that. It is not in the Constitution anywhere, and it’s creating these horrible results where like, in this case, they want to tear down a veterans memorial that’s been up for almost 100 years because it’s in the form of a cross.
Well, the founders who had never been in favor of that. So it shows that the tests they’ve created in this approach this separation church and state approach is not what the Constitution says.
And so we’ve asked him, in that case, let’s go. Let’s get rid all this stuff that’s creating all these problems and tearing down manger scenes and menorahs and all this stuff that the founders would’ve never been for. And let’s go back to what the Constitution says.
If they do that think of the difference that will make. And again we have five justices who actually now want to follow what the Constitution says how it’s written. Not you know sort of the Living Constitution approach. So that’s one, and then the other that you’re mentioning is the fact that one by the way.
Kelly where is that one in the process right now.
The Veterans Memorial
We are in at the Supreme Court, and the oral argument is February 27th. So we, you know, I would encourage everybody to be in prayer. I mean this is huge for what it would mean. Mean everybody’s looking at this about the Veterans Memorial. Because if they rule the wrong way, the Court of Appeals there said it was unconstitutional, they would have to go into Arlington National Cemetery which is not too far from this other cross. They would have to go into Arlington and tear down all the large free-standing crosses in Arlington.
And so everybody is focused on that which is very important. But this is even bigger than that.
This is about the test they use the approach they use. And we’ve asked them you’ve got to change this. You’ve got to get back to the Constitution. If they do that, that’ll affect everything. It’ll say a prayer in school it’ll affect it’ll affect everything because it won’t we won’t have this sort of situation that the founders had never been in favor of where the government is almost hostile to religion. That’s not what the religion clauses say.
Right. Right. And at the end the government is the deciding factor rather than governments not supposed to be in the equation on this, shall make no law respecting an establishment religious must be up to the individuals on that and by the way Kelly before you go to your second case, I wanted to go back to something you said about the judicial nominees on the Web site.
Pray For the Judicial Nominees
That”s really that’s another thing really to encourage people to be praying for, and it’s so easy to get to folks. Just go to First Liberty.org Â and then right there on the HomePage and Resources click on Judicial Nominees.
Kelly and his team have done a great job of helping us keep up with all the nominees where they are in the process, the confirmations that have actually already gone through.
Anyway, it’s a great paged literally just to go in and pray over and pray for God’s will and pray that the right you know procedures and rules and deals will be made to get these guys and gals through.
We”ve had so many wonderful victories in the last two years, Kelly. I pinch myself every day that Lord’s giving us a reprieve in that area but there’s so much more to be done. All right. I’m sorry man, go ahead. So you were going to you were headed to a second case.
On The Verge Of Changing 50 Years of Bad Decisions
So I really think, take the first case – Â I think we’re on the verge of possibly changing 50 years of bad case law of bad decisions that have created a government that’s hostile to religion on. We aren’t, you and I both know the Establishment Clause was about there not being a national church that’s people had to support and be a part of. It was never about sort of you know cleansing religion from our public arenas.
Rick: That’s right.
So that’s been a misinterpretation. So we’re on the verge I think, and that’s why I want people to pray for February 27th because that’s the argument probably the decision will come down in late June.
But this could have a huge impact on the future of the Establishment Clause.
Coach Kennedy Case
The other clause is the Free Exercise Clause, and there’s not a lot of Free Exercise cases. Why is that? Because there was an opinion 30 years ago the Smith opinion that really sort of neutered the Free Exercise Clause. And so a lot of you know a lot of people have to bring their claims under like free speech instead of the free exercise of religion, which is sad.
Well, we just had the coach Kennedy case go to the Supreme Court, and I think a lot of people know coach Kennedy was the guy who got fired because he went to a knee after the football game by himself and said a 15 to 20-second silent prayer.
And the Supreme Court did something very unusual, Rick. They usually cert deny, or cert grant which they get about 8000 requests and they take 7920 of them into Naam, and they take about 80 in a year.
So usually it’s just cert denied, and they don’t say anything. It doesn’t mean they agree or disagree with the case, they just they just cert deny. Well, they did something very unusual two weeks ago. They took our coach Kennedy case, and they cert denied, and you’d think well that’s horrible. They didn’t take the case, but then they did something I have almost never seen which is they wrote a statement attached to it.
The four conservative justices including Kavanaugh. And they said, look we can’t take this right now because we think there are some facts that need to be developed below. And they also said, and by the way, we find very troubling the Ninth Circuit’s opinion below saying that coaches that pray in public, you know can be fired.
It sent a strong signal there and then the shocker of all shocker this is – what you’re talking about that’s made the press and has been talked about in legal circles. And then at the end they said, we notice that while there’s a Free Exercise claim that hasn’t gotten to us yet that this was brought as a free speech claim.
They said, you know maybe that’s because of and then they name this old case that has created such…they said that drastically cut back on the protection of the Free Exercise Clause.
So on their own, they brought up this Free Exercise case. That’s been a precedent for 30 years and has created problems for the free exercise of religion. They said; however, we have not been asked to revisit that decision at this point.
So they’re basically saying, bring it on, bring it to us. Go ahead, guys.
Yeah. They’re saying, you’re saying look it’s drastically cut back and they use the words drastically cut back on Free Exercise. They said we have yet to be asked to revisit this. They’re basically saying we’re ready to revisit that.
I really believe we are on the cusp of having both religion clause, the fuzz, the junk – they are all going to be clean.
They Are All Going To Be Clean
The three-part test and the four-part test what I remember from law school. Every justice, Â they create a new test, and it changes every 10 years. It’s insane.
Yes. And you know one of the tests, for instance, the endorsement tests on these Establishment Clauses if it’s a passerby looks up, and he sees you know a manger scene, and he feels like an outsider that’s how we’re determining whether violates the Establishment Clause.
The founders would be like rolling over in their graves. This is never what the Constitution. Well, I really have great hope both on the Free Exercise Clause and on the Establishment Clause that the court is ready to move back to what the Constitution actually says.
And by the way, on this one we just mentioned the Free Exercise Clause, it’s the Smith decision that’s the bad decision that needs to be overturned.
God is Moving the Pieces On Both Clauses
We have a case right now sitting at the Supreme Court that in about a month will become ripe for the court to determine whether they’re going to take it. Our point of error number three is – you need to overrule Smith no kidding.
Oh God just moves the puzzle pieces, and it’s perfect time.
And it’s a case you know about. Â It’s the Klein case it’s the sweet cakes bakers in Oregon who were fined $135,000
Put out of business
In fact, bankrupted because they would not do a gay wedding cake because of their faith. And here’s a Free Exercise Case in the court.
So you know again, we don’t know all of what God has in play here but something, we are seeing everything shake and both clauses, both the religious freedom clauses in our Constitution, I think, are about to be improved as far as getting back to what the founders wanted – a vibrant religious freedom that our country was built on.
What You Can Do
That’s incredible Kelly. We’re so looking forward to having you back multiple times the next few months to talk about some of these things and what happens with them, praying for great victories. I really do want to encourage people I mean this is you know a lot of times people say well I can’t do anything about the courts.
There’s very specific things to be prayed for every day asking for God’s blessing on this and again want to send people to the website FirstLiberty.org, and you can actually follow the cases there as well. In fact, you’ve got pictures of the different cases on the HomePage. You can click on those and go see them. But all these vacancies be praying for those.
And Kelly, I guess you know President Trump mentioned that in the state of the Union that 300 appointments that are kind of waiting out there.
Have you seen some movement on them? I think we’ve got what ten or twelve Court of Appeals vacancies he’s trying to fill as well are there. We’ve had some good folks, guys who have worked for you that you’ve worked with getting on the bench in the last two years. Are there some more in the pipeline that you think.
Oh yeah. We expect Thursday of this week that the Judiciary Committee is going to pass out another 40 to 50 and move them to the floor.
So we’ve got 163 judicial seats is waiting to be filled right now. These are great appointments that we’ve seen the youngest ever and most solidly sort of committed to the Constitution we’ve ever seen.
It’s just a matter of getting them through and the slow tactics that have been used to try to bog things down, Â it’s going to be in the hands of the Senate Republicans who have said that they’re going to do whatever they need to do – change the rules whatever to stop the slow down tactics so that they can get these folks voted on.
But we’ll wait to see on how fast they can get these folks to move, they are moving, but there’s a lot of slots to fill, and the Senate really does need to get to confirming these folks and getting them on the courts.
Give To First Liberty Institute
Yeah man. Well, we sure appreciate your time. Again the website FirstLiberty.org.
The other link everybody that you need to go to the top right. It’s actually the brightest button on there says Give.
Make sure you’re helping Kelly and his team continue these great victories donate to these guys every year and allow them to do what they do. Believe me, it could happen to you.
You can have the government coming after you say and not to express your faith and these guys will be right there by your side to defend you and protect your rights. Kelly Shackelford God bless you. Keep up the great work pay.
Thank you, Rick. I really appreciate it. I encourage you to get that Bladensburg case, send it around they’re going to see it in the press because in the next three weeks it’s going to be argued the Supreme Court. So thanks for getting the word out.
Excellent. And we’ll do a link on that as well today. That was Kelly Shackelford. All right we’re going to jump right back in with David and Tim Barton and guys man.
That is one of the most encouraging interviews we’ve had in a long time because that affects so many different topics and issues and cases that we’ve been talking about on the program interviews we’ve had over the last couple of years.
Recap of Kelly”s Interview
Yeah. And the context is really cool because we began by talking about the Free Exercise Clause, the Establishment Clause.
Here Kelly’s got a case at the court on the establishment clause which is that Bladensburg Memorial Cross case and he’s got a case coming to the Supreme Court on the Free Exercise Clause which is the Kline case out of Oregon.
And so you know as he said we’re on the verge of change in 50 years of sad cases.
But the statement I think I loved the best was let’s go back to what the Constitution says. We have five judges who want to do that. That’s been a long time since we could say we had five judges who want to go back to what the Constitution says.
Longtime David have we ever been able to say that in our lifetime.
I don’t think so. I don’t think so.
Chief Justice Roberts & Justice Ginsburg
Well, it raises a question mark too because when you look at what John Roberts did and had done with different decisions where he cited on the wrong side in fact just recently with the abortion law coming out of Louisiana. It does make me a little nervous which is why you know sometimes I’m praying that God will just you know move on.
Justice Ginsburg to whatever next station or position might be in store for her because although we have five that gives you hope it really seems like Chief Justice could be kind of the old Anthony Kennedy situation you’re not really sure which way he’s going down.
Oh although you know even as Kelly mentioned they had four judges say
See, that”s what got me. The fifth judge would have been Roberts, and he didn’t sign on to that case about saying here’s how you get around.
Well, and I was going to the point that on second but thank you for saying hey bring this to us. Those four guys are probably not saying bring this to us. If they don’t think that’s going to be.
I agree with that. I totally agree.
A Lot Of Good Stuff Happening
So the idea that they’re even saying, hey let us let us give you a thought on this, right. Why don’t you ask us what we think about it implies in my mind that they think they’re gonna get that 5th vote. Although again Roberts is a little question mark to me on this but you know this Kelly mentioned you have all these judges now that it looks like you’re gonna get approved to the Senate and they’re going to have positions where they’re going to be able to be influencers, and so there is a lot of good stuff happening.
And really I mean Rick we’ve talked about before some of these interviews we really could make Good News Friday programs because of the great things we’re hearing come out of it.
Still, some question marks in my mind about what’s going to happen with Chief Justice Roberts but nonetheless some positive things for sure and really encouraging.
So cool to see God’s movement of those puzzle pieces. For Kelly to have those two cases in the pipeline and the timing just to be so perfect. I mean it’s going to be really exciting to watch over the over the next few months.
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