Religious Liberty At The Supreme Court – Case Update With Mat Staver – An important case for religious liberty was argued at the Supreme Court earlier this week. Mat Staver joins us to give an update on this censorship case, and also what we can expect now. Tune in for this story!
Air Date: 01/21/2022
Guest: Mat Staver
On-air Personalities: 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. 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.
Welcome to the intersection of faith and the culture. Thanks for joining us today on WallBuilders Live. Learn more at our website wallbuilderslive.com. I’m Rick Green, here with David Barton and Tim Barton. Very important Supreme Court case this week, guys, on religious liberty and our friend Mat Staver was the one to argue it just a couple of days ago.
Yeah, and Matt’s going to be the great guy to argue this because this is a passion for him, holding up the Constitution, particularly the emphasis he has is not only in constitutional issues, but particularly First Amendment and protecting our free exercise of religion protecting really what is the foundation of the nation.
And so there was a case that came out of Boston that he has been working on for a good while. I mean, he’s gone through the district court, the court of appeals, back to the district court, back the Court of Appeals, and finally, the US Supreme Court picked it up. Mat lost every step along the way in the lower courts. And it’s interesting, that court picked that up. Because if they had agreed with what the lower court had done, they probably would not have picked it up because every decision, all four were negative.
So the court picked it up, which is really, I think, a good indication we’ll see. And so this is what happened on Monday. And usually, in these things, each side gets 30 minutes to argue its case. It’s a little longer, and this one’s about an hour, 22, instead of an hour. So there were some other factors there, they’re pretty cool. But nonetheless, what we thought we’d do is before we have Mat on to talk about what happened, we’re going to play a two minute clip at the beginning of the oral argument at the Supreme Court.
So what you’re going to hear first is Chief Justice Roberts introducing Mat Staver asking for a statement, and then Mat’s going to give a two minute overview to the court, and it really lays out what this issue is all about. So this is a super important Supreme Court case. If this goes the wrong direction, we’re going to be set back for decades. If this goes the right direction, then this is going to push the anti-religious folks back decades as well, really key case. But here’s the part of Mat arguing at the US Supreme Court.
MAT STAVER AT THE US SUPREME COURT
You will hear argument first this morning in Case Number 20-1800 Shurtleff versus Boston, Massachusetts. Mr. Staver.
Mr. Chief Justice, and may it please the Court. After 12 years with 284 flag raising approvals, no denials and usually no review. One word caught the attention of a Boston official, the word ‘Christian’ on the application. The flag itself was not the problem. Had it been called anything but Christian, the same flag would have flown for an hour without incident.
The policy does not limit the flag poles to subject matters or speakers. All applicants are welcome except religious viewpoints. The 2018 codification places religion in the same category of speech deemed inappropriate offensive, supporting prejudice or discrimination. To support its admitted viewpoint discrimination, the city raises one defense that the public forum open for all applicants is really Government speech.
This court warned in Matal that the government speech doctrine is susceptible to dangerous misuse. This is such a case. The city’s flag raising forum is not government speech under Walker and Summum. The city by an unbroken history and practice and policy expressly declared that the flagpoles are one of its public forums open to all applicants. And doing so, the city long ago crossed the line from government speech to private speech.
A reasonable observer would understand this history and the policy. This observer would also see a private event coincided with a temporary flag raising event. The city exercised no control over the message the design and did not own the flags. The city never requested flags or messages to be changed and usually did not review them. The city’s application alone cannot transform private speech into government speech. In light of the practice and policy, the decision below upholding viewpoint discrimination under the guise of government speech is dangerous and should be reversed. I welcome the court’s questions.
Alright, friends, that was Mat Staver with part of his opening at the Supreme Court, we’re going to take a quick break. When we come back from the break they’ll actually be with us here on WallBuilders Live to talk about the argument before the Supreme Court and what he expects after this. Stay with us, you’re listening to WallBuilders Live.
This is Tim Barton from WallBuilders with another moment from American history. As the American war for independence began, the president of Yale was the Reverend Naftali Daggett. When New Haven, the home of Yale came under attack, about 100 citizens rushed out to meet the British, the Reverend Daggett gout by them on horseback, his clerical robes flowing behind him in the wind, and he took up a solitary position atop a hill.
The 2500 British soon put the townsfolk to flight. But the Reverend Daggett continued to stand alone, firing down on the advancing troops. A British officer confronted him, “What are you doing there, you old fool, if I let you go, will you ever fire again on the troops of His Majesty?” “Nothing more likely” was the preacher’s reply. America’s early pastors personally confronted danger and courageously led their communities.
For more information on Pastor Daggett and other colonial patriots, go to wallbuilders.com.
Welcome back to WallBuilders Live. Thanks for staying with us today. Our good friend Mat Staver back with us from Liberty Counsel, lc.org is the website. Lc.org, get on there, get on the email list, make a donation help them continue their fight for religious liberty all over the nation. Mat, so good to have you, man, thanks for coming on. I know you’re very busy right now, having just argued before the Supreme Court.
Well, thank you, good to be with you.
Big case, you’ve got a ton of cases going, but this one obviously at the highest level and any huge issue for religious liberty and free speech itself. Explain to us a little bit about this flag in Boston and kind of how this thing came about to get all the way to the Supreme Court.
Well, this is a major case. It’s going to affect everyone because it involves censorship against religious viewpoints, discrimination against a particular viewpoint. And this case began 2017 when Harold Shurtleff, the founder of Camp Constitution wanted to recognize Constitution Day and Citizenship Day and also the contributions of the Christian community from the Founders up to the present in Boston, Massachusetts, including John Adams and Samuel Adams, early Founders, of course, very influential, and Christians who made a huge impact in our country, and resided in Boston and the Commonwealth of Massachusetts.
Well, up for 12 years, Boston had never censored a flag. They had created these public forums by not only 12 years of unbroken policy and practice, but expressly declaring that some of its flagpoles are dedicated as public forms open for all applicants, not a single application that ever been denied before. 284 had been approved, no denials. The year before, this application, 39 approvals, no denials the year. After the application 50 approvals, no denials, Harold Shurtleff’s application included the word ‘Christian’, and that’s what caused the denial.
And in fact, what he wanted to do is have a one hour event with speakers dressed in costume and then temporarily raised for this one hour event, the Christian flag on the flagpole form. The flag itself was not the problem. This is the most ridiculous thing, Rick, and it’s so obvious what they did. They said you could fly the same flag. It’s not the flag that’s the problem. It’s what you believe the flag represents.
The word ‘Christian’ alone triggered the censorship. If you call it anything but Christian, call it anything, call it a Camp Constitution flag, I don’t care. Just don’t use the word ‘Christian’ we’ll allow it. But if you use the word ‘Christian’, we’re going to censor it. And that’s what happened. So it was dependent upon how Shurtleff’s particular viewpoint of that flag. And after the argument, an immigrant from Sudan who’s now a US citizen came to me said, you know, in his country of Sudan, that’s exactly what was happening to Christians. What happens now is that if they deny Christ, they live; if they acknowledge Christ, they are beheaded.
And he said what Boston wanted how shortly to do is deny Christ. If he denied that this was a Christian flag, then, in fact, it could fly. If he acknowledged the truth and didn’t lie, and was truthful, that this is a Christian flag, then it was punished, and he was censored. And so that’s the case before the US Supreme Court. And I think that the majority of justices were very receptive to this argument, because it’s very, very clear of the city engaged in viewpoint discrimination. There’s no question about that.
In fact, the city even acknowledges, yes, that’s what we did. We didn’t want the Christian viewpoint. They acknowledge it. But then they tried to justify and say, well, you know what, this flagpole forum that we’ve had for 20 or 12 years and even years beyond this application that we’ve never denied any flag, this flagpole forum where we have people that raise all kinds of different flags, it’s really our speech, and it’s not open to the public. And so, application number 285, step out of the line, your Christian viewpoints not welcome here. That’s really the issue.
If they’re going to claim it as their speech, I assumed they’re then going to claim fly in the Chinese Communist flag and the transgender flag and all the other ones they flew. Did they actually take that on?
Well, you know, it’s a crazy thing. Because I said how can this be their speech? Because one week you have this group called the Chinese Progressive Association, and they fly the People’s Republic of China flag. They are pro- Mao Zedong, pro-Communist China. And then within a few days of that, it always happens around September, October every year.
Mr. Chen, who is someone who is anti-China, anti-communism, anti-Mao, he supports the nationalist before the Mao Zedong revolution that killed so many people. He flies the Republic of China flag. So you have these competing viewpoints here. You’ve got essentially Taiwan versus China. You’ve got communism versus anti-communism. You’ve got pro-Mao versus anti-Mao. How can the government be speaking out of both sides of his mouth within a few days of each other?
Clearly, what’s happening here is this is private speech that’s taking place in a public forum that they’ve intentionally opened up. The only person, the only viewpoint they say is not welcome here are Christians. If you have a Christian viewpoint, if you want to acknowledge the Christian viewpoint, step out of line. If you will deny your Christian viewpoint, then you’re okay and you’re welcome in Boston. Well, that is unconstitutional. And that’s what ultimately caught the attention of the Supreme Court.
Yeah, that was incredibly well argued. And apparently, if it’s their speech, then they’re very schizophrenic. Let’s just put it that way. But I thought your argument was fantastic. Man, well done. One thing I was confused by was the Solicitor General being there and the DOJ arguing with him, he’s like on our side, I was really surprised by that. How did that come about?
Well, this came about last year, and the Solicitor General’s office contacted us. We spent about an hour and a half talking about the specific facts of the case. I think what originally attracted them is they have to deal with the federal parks. So for example, in the federal parks, you have both government’s speech and private speech. Take, for example, Washington, DC, you can gather in some of the federal parks for private expressive activity, it’s certainly not the government. You gather for different kinds of things. You have events on the Washington Mall.
And then the federal government also wants to have an exclusive government event, for example, like the lighting of the National Christmas Tree or the Presidential Inauguration event. And therefore they make a distinction between this is government speech now, but over here all the time, it’s open for private speech. So they wanted to be able to protect that interest. But at the same time, as they’re looking at this, they say, you know what, Boston just went too far and Boston violated the First Amendment. It’s pretty clear.
So we had the United States of America actually file a brief in support of our position and then the Solicitor General argued. And when the Solicitor General does that, usually, they take some of your time, typically, each side has 30 minutes apiece. With the Solicitor General coming on, we got an enlarged amount of time. And I had 20 minutes and the Solicitor General had 15 minutes. But we actually had more time than that because even after our time ran out, the Justice has continued to ask questions.
But it is a good thing. And I think it is a surprise to a lot of people that actually the United States of America, the Solicitor General’s Office, the Department of Justice essentially sided with us in this case, and they said, you know, Boston went too far. And what they did violated the First Amendment.
Yeah, and one area in the weeds, won’t get too far there since we have so little time, but the whole idea of the informed observer, your exchange with Justice Kagan, and then Justice Barrett got in on that one a little bit as well, she said, if somebody’s seen the government flag 1,000 times, that sounds like a pretty informed observer to be. So if they’ve seen it 1,000 times, they’ve seen all these different flags there and would pick up on that. But where does that fit into the legal theory here?
Well, it really is a really fun, the old establishment clause cases that the Supreme Court’s getting away from. And it’s a real problem because different courts can have different kinds of quantum of knowledge of a so called reasonable observer.
And for example, you could have after school Bible clubs, like the Good News club. And if you had an ignorant observer who just simply walked by, and they didn’t know about the history of the policy that the schools open it up for after school programs, like different organizations after school for the kids. Now they walked by classroom A, and there’s an adult, they’re teaching Christianity and Bible verses and singing Christian praise and songs with the little kids, and then in room B, they keep on walking, and they say, oh, here’s another adult, that’s a teacher, and she or he is teaching remedial math. They could say, oh, without knowing the history and the policy, the school must be teaching Christianity to the kids, and so therefore, I’m going to complain. That would be an ignoramus veto. That’s an ignorant observer.
The reasonable observer would be aware okay, yeah, that’s a good news club because they have a lot of these other secular groups. They’ve got soccer’s groups and baseball groups and all these other groups are the kids. Then over here is the school teaching remedial math, or remedial reading, whatever it may be. It’s clearly an open forum.
What Kagan and Barrett were, I was a little confused about or concerned about their limitation on what the observer would know. They essentially were suggesting, but I think they moved away from it later in the argument, that the reasonable observer would just have a snapshot in time. And that snapshot in time would exclude everything else. They would walk by and they would see the flag with this Christian flag and they say oh, well, the government has become Christian now. Rather than say, well, you know what, yesterday or last week or however many other times the government has allowed all these different private groups.
The problem with this reasonable observer situation is you could have anybody who’s offended ultimately stop your speech because of a very quick snapshot versus of video of the overarching multiple days of events that take place in a particular form. So that’s the question that Kagan asked. I was surprised at the more the narrower area that she was focused on. But when the city attorney got up to argue, Kagan actually made a statement. It’s very clear seems like where she’s coming down, and she believes the city violated the First Amendment by engaging in viewpoint censorship.
Yeah, so it looks like I mean, potentially, a hodgepodge of judges that we wouldn’t normally see together potentially on the right side of this thing?
I mean, even Justice Briar, at one point in time, he says, essentially, why did this case not settle? Could this case not settle? And I said, well, you know, Justice Briar, that’s a good question. I thought that it was an open and shut case. But the city really dug its heels and in the city really has religious bigotry. And that’s what they did. They made a decision they’re not going to have religious viewpoints on their property in their public forums that they’ve opened everybody else and they’re going to draw a hard line.
And unfortunately, they got their first win at the district court, that emboldened them. And when I argued the case for the first time at the court of appeals, I thought, this is a no brainer. It’s very easy. And I started off with the clear constitutional principles, and the court didn’t want to go there. And we lost 3-0. We went back down to the lower court, and we engage in more discovery, lost again. So the city was very emboldened.
Went back to the Court of Appeals, and all this new information, 284 approvals, no denials, 12 years, all these different viewpoints except for a Christian viewpoint, they admitted that they censored it on the basis of Christian viewpoint, it’s over and done with. No, we lost again 3-0 by the same panel at the Court of Appeals. And that’s what ultimately brought this case to the attention of Supreme Court because of its outrageous and, frankly, dangerous application that would have to restrict free speech.
Yeah. And take home message for our listeners. I mean, that’s really what’s at stake here are Christians excluded while everybody else is allowed to have that public forum and that speech. Timeline, you think this is a June kind of decision, you think?
Certainly, by the end of June, we’ll have a decision sometime between now, it’s not going to be any time really quick. But sometime between now and the end of June, we’ll have a decision. So keep praying for the case, because this Friday, the Justices will gather together for their conference, and that’s when they’ll vote. That’s when the case will be assigned for one of the Justices to write the opinion. And that opinion, then goes through different drafts and finally is released sometime between now and the end of June.
Okay, personal question before we go. Mat, you have been on the front lines of all these religious liberty fights for decades. The last couple of years, you’ve had to wade out there into protecting all kinds of constitutional rights. Does it feel good yesterday to be back in your normal wheelhouse, all the religious liberty issues?
Yeah, so very good to be back up there in the Supreme Court. Of course, they do it a little bit different now because there’s not a lot of people in the courtroom, basically reporters and sketch artists, and then the council. And so that’s a little different than normal. But other than that, it’s the same thing and it’s the same process and it’s a lot of preparation, lots and lots of time.
But God was really good. And I think he gave us incredible favor before the court. And so I think we’re going to have a great victory. And it’s going to really affect everyone. Because otherwise, if we were to lose this case, it means that the government can open up these forums for all kinds of expressive activities. But when someone sees that it’s a Christian viewpoint, they say, no, you’re not welcome here. Sorry, go away. That’s what happened here.
Well, God bless you, brother. We love you. We appreciate you. And I want people to know, you’re also working on all these cases, defending our members of the military that had been kicked out for the jab and all the things that you’re working on. I know, you guys are running, running, running. Donations mean a lot right now because you need more staff, more people to deal with all these things, even just intake of people that have cases. So really, when encourage people.
Lc.org is a website, get on the email list. I love reading Mat’s updates on a regular basis, you will as well, it’ll keep you informed and make those donations to help him continue to do what they are doing great work. Appreciate you, brother. God bless you. Thanks for coming on today.
Oh, thank you. My pleasure, good to be with you.
Stay with us, folks. We’ll be right back with David and Tim Barton.
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We’re back here on WallBuilders Live. Thanks for staying with us. And thanks to Mat Staver for joining us today. Back David and Tim. Guys, I’m sure he’s getting bombarded with interviews after the argument. But just great to be able to get his firsthand account of what happened. And David, you mentioned it at the beginning of the program, but he’s been after this one for years, and it was defeat after defeat after defeat, he stayed with it. And it looks good based on what the Justices were saying. And like you said, this is one that could really, really be good for us for years to come, or really, really bad for us for years to come.
Yeah, as soon as he got out, we had press conferences, and then we were texting back and forth. And so he really thinks this could be a 9-0 decision, at least a 7-2 decision. But as you heard him talk about, even Kagan Sotomayor or those that were hostile, when the city of Boston got into doing this stuff, you heard it, he said, well, even she said that’s unconstitutional. So it could be a 9-0 decision.
Just to make it real clear, people need to understand that over half the decisions at the US Supreme Court are 9-0 decisions. Now we always hear about the real controversial ones that are split. But usually, most of the time the Supreme Court is 9-0 zero, they agree this is an easy one. So that’s going to be particularly strong if you’ve had all these lower courts. Now granted, this came out of Boston and I think that puts it in the first federal circuit court appeals, which is one of the most liberal court appeals in the nation, along with the Ninth “Circus” over on the west coast. And I did say “circus”, that was by design.
I was about to say, folks, that was on purpose, just so you know.
Well, let’s also clarify that the Ninth Circuit is not quite the circus they used to be. After some of Trump’s appointments got on the Ninth Circuit, they’re actually much closer to a 50-50. I think it’s actually probably like a 55-45 split as far as your very extreme liberal judges and your more conservative constitutional judges now in the Ninth Circuit. But it’s not quite the circus it used to be.
No, it’s not. And I think as I recall, by the time Trump left, we had gained a majority and I think 7 of the 13 circuits, and we’ve lost two of those since Biden’s been in. So they’ve made ground back out in the Ninth Circuit on the Biden side. But nonetheless, this eastern Circuit Court is one of the most liberal. And so the fact that it was lose, lose, lose, lose, four times and the Supreme Court says we want to weigh in on this, pretty good indication the court thinks what the lower courts did was wrong, otherwise, it would have left it.
So this could be a really big thing. And I tell you, you can hear the oral arguments, by the way. What we played was the first two minutes, you can go through and listen all the justices, as they asked Mat questions back and forth. And then you have the Solicitor General’s arguments. And then you have the arguments of the Boston attorney. And as this thing went along, it became clearer and clearer.
Because when it first started, and I was listening to Justices quiz, Mat, it seemed like, oh, this might not be a win after all. This doesn’t sound good, because they were really given a hard time on several areas, which they do, because they push the envelope as far as they can to see what the ramifications might be on their decision. So they pushed it. But then when the other started coming in and weighing in, it was pretty clear that they didn’t like where this thing was, and that’s why they picked it up.
And just to be clear, so for anybody that was kind of listening and doesn’t know anything at all about the case, nobody here is saying that a city has to fly a Christian flag, and keep it up all the time and they had to make that their symbol. We would probably think that’s a good thing, of course, but nobody’s forcing a city to do this. Because some people will hear this and say, well, you can’t make the Christian flag be on every Capitol or every city hall or whatever. This is a pole that that anybody could fly a flag on if they just did the application, they got rubber stamped. And what Mat say 285 or 45, or whatever it was different flag…
Well, this one they rejected was 285. And I think there were 50 more after they rejected this one. So it’s 330-350, whatever it is, and only one rejection. And it’s because it had the word ‘Christian’ in the application. As they said, if you just said this is the camp flag, this is the Camp Constitution flag, they didn’t care that it had a cross on it, and they didn’t care anything about it, but you said as a Christian flag and therefore we can’t fly it.
What a great symbol of where we are, Camp Constitution and the Christian flag is what gets cancelled by these guys when those are the things we need to be coming back to and restoring. What do you think this says to Public Square folks out there, other elected leaders, political leaders when they’re afraid to have Nativity scenes, they’re afraid to do any of these things because of this supposed no religion, no Christianity in the public square? If we win this on this particular facts circumstance, does it loosen up some of this clamp down on not allowing any expression of faith in the public square all across the country?
Well, I think as Matt pointed out, looking at this notion of viewpoint discrimination, when it’s very clear that the only group you’re discriminated against is the Christian, I think that some of the pushback sometimes it comes when you do have some of these mayors or individuals and state you want to put up a Nativity scene somewhere. And you know, they have no problem putting up Santa or Rudolph or whatever else the case might be. And the only problem we have is if there’s a Christian notion to something.
So it’s certainly being able to eliminate some of this idea of viewpoint discrimination that it’s okay to discriminate against Christians but nobody else. No, if there’s a level playing field that certainly will do things to advantage things like Nativity scenes, as you mentioned.
Well, we’ll be watching for the decision. Folks, of course, normally Friday is a Good News Friday program and we have a lot of different stories to tell you that are good news. We kept this one, it’s just one story because we had the chance to get Mat on so quickly after the arguments at the Supreme Court and we’re going to be looking for a great decision out of this. Thanks for listening. You can get more of our Good News Friday programs at our website wallbuilderslive.com. You’ve been listening to WallBuilders Live.