Is Religion Essential Or Should Governors Restrict It? – With Kelly Shackelford: Should churches be allowed to meet? Should the church be treated differently than other entities? Is the government meeting the qualifications of “narrowly tailored” and “least restrictive” when restricting our Constitutional freedoms due to a “compelling interest” of public health? Tune in to hear the answers to these questions and more!

Air Date: 05/26/2020

Guest: Kelly Shavkelford

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.

Faith and the Culture


You find your way to the intersection of faith and the culture. It’s WallBuilders Live where we take on the hot topics of the day 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 is Rick Green, I’m a former Texas legislator and America’s Constitution coach.

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First Liberty

Alright guys, we got from Kelly Shackleford on later from First Liberty. All of these friends of ours, man, they’ve got cases all over the country. They’re on the frontlines of this situation, trying to protect churches and religious liberty. And of course, David, you’ve been talking to him since March and the good thing is, we’re winning a lot of these cases and people are starting to get back into their churches.


They are and this is really the reaction we saw even back in 1918 with the Spanish flu. Because when they were saying, hey, we need to close down gatherings, whatnot, they included churches in that and said, hey, let’s close churches. And after about five weeks, the churches started getting together as groups and they started writing letters to governors saying, hey, “We’ve been great citizens. We’ve cooperated with this, we voluntarily did what you want to, but the curve is flattening and we’re going back to church.”

And so that’s about when we started seeing churches here go back because all the predictions, the model was we’re going to have 2.2 million Americans die of COVID. In Texas, we were told 495,000, we’re still less than 1,500. So, all the models were wrong. And after about five weeks, it became obvious that the models were wrong.

And so, we started seeing pastors saying, hey, this is not what it’s supposed to be. I mean, we need to go back to services. We got people that really need prayer, we need to meet. We have all these biblical passages on assembling together. And by the way, you’re letting other groups get together, you’re letting big box stores etc. so no, we’re going back. And so, as that started happening, you started having a whole series of lawsuits hit.

And so, I think this was really the first constitutional right that started going to the courts earliest was churches saying we’re going back to church. So, it’s interesting. I have a stack of headlines here, actually, stack of articles, but I’m going to just read the headlines. And this gives you an indication of what’s been happening over the last three to four weeks with this stuff.

It says “Breaking: Judge Grants Restraining Order Against Kentucky Governor in Dispute Over In-Person Religious Gatherings”. And so, the Kentucky Governor, Andy Beshear had said you can’t have drive-in services, whatnot. He lost that lawsuit and he said well, in-person stuff, you can’t do.

Sixth Circuit Court Of Appeals

And so, I think it was a Sixth Circuit Court of Appeals came back and said, oh, yeah, they can have services, you can’t ban services. And they made the statement, Mat told us last week the statement was that the judge said, we’re not going to let the constitution sleep during this pandemic. Just because there’s something going on doesn’t mean the Constitution goes away. So that was from Kentucky.

Then here’s one. This is: “Breaking: Following Lawsuit, Washington Governor Agrees Bible Study Permissible”. Now, this is Governor Jay Inslee, and he had put a ban on religious gatherings of any size. And this case was actually one guy in his home, wanted to have a Bible study with one other person in his home, so two people in a home and that was even banned by the governor. So, the court said no, no, you can’t do that. You can’t ban in-person services. Here’s one saying lawsuit


Literally saying, you may not do Matthew, no two or more may gather?


That’s right. You cannot do Matthew. And by the way, the Third Amendment of the Constitution says the government can’t quarter troops in your home. And so that goes back to the American Revolution. When the British would come to town, they take over town and say, okay lady, you take these four guys and mister, you’re taking these seven soldiers. And so essentially, it is the government moving into your home.

And so, although this is not quartering troops, this is the government moving into your home. This is the government moving in and saying, hey, you can’t have these kind of services in your home. That was the essence of what the Third Amendment was about: was government can’t set up shop and your house and that’s literally what that did. So, just a one-on-one gathering, so two can’t gather in his name.

Drive-in Church

Then you have this one. It says “Lawsuit prompts Chattanooga to end ban on Drive-in Church”. So, the mayor of Chattanooga, now the governor of Tennessee has been real good, he’s been real strong. He actually went to some drive-in churches and talked about the scriptures in the drive-in churches and talked about how good it was. But the mayor of Chattanooga said not around here, you’ve don’t well. That’s now changed.

You have here a Judge overturned, Oregon governor Kate Browns’ order closing churches, but leaving abortion clinics open. So, you can’t have church services, but you can have abortion meetings. Well, the governor’s order on that got overturned, the Judge said, can’t do that.

Here’s one that says a Judge blocks governor Roy Cooper, he’s from North Carolina, blocks his order closing churches while keeping abortion clinics open. So, kind of like Oregon, you wouldn’t think North Carolina would be like Oregon. But the governor’s apparently think alike, both are ‘Blue Governors’.

Here’s one that says the Judge rules against Kansas Governor’s order limiting in-person church gatherings. So, Kansas also has a ‘Blue governor’ and the judge has said no, you can’t do that, you can’t stop the in-person church gatherings.

Here’s one says, Judge stops Kentucky police from recording churchgoers license plates to fine them. This is a mayor that says, you’re not going to have church services in our city. And he actually sent the police to take the license plate numbers of those who were in the parking lot to fine them later and they were facing charges.


And guys, in the middle of this, as dad you’re going through these articles, it just strikes me that one of the big problems is not only a hostility from some of these leaders to maybe religious activities, Christianity specifically, but also even a clarification of what essential really is. When we’re going to say that alcohol is essential, that abortions are essential, but religion is not, I don’t remember alcohol or abortion being protected in the First Amendment, although certainly, religion is protected.

Is Truth Relative?

And this to me is where some of the breakdown occurs, is that in a culture where truth has now become relative, where words mean whatever you want them to, essential has become a very subjective word and religion is just not viewed or deemed as essential by people who are largely irreligious and don’t care about religion and therefore, it’s easier for them to attack something they don’t care about, not understanding the Constitution.


Well, given the fact that all these cases are being won. We haven’t won every case. Some of them, we did not win, but we won on appeal. But given the fact that these attorneys are friends that we talked about, Kelly Shackleford and Mike Farris and Mat Staver and others are winning these cases, we’re now seeing pastors and other states have more courage to step up and say what they’re going to do in some of those states?


Yeah, actually, I have a stack of articles related to that. Where this headline says that Trump tells Gavin Newsom to let churches reopen. So, in California, Governor Newsom has just been ridiculous in some of what he has and has not let people do. And this is not just…


In fact, he kind of started all this. He was the first one to do a statewide order on the 19th, I think it was in March.


Absolutely. And he has not just been bad with religious nature where I mean, he’s just ridiculous. You can’t go outside in certain parks and blah, blah, blah, whatever. But Trump says, look, you can’t arbitrarily target churches when you’re letting some of these big box store, some of the things that you deem essential go on and not religious services.

And in California, there is a group of now more than 1,200 pastors who have made a declaration of essentiality saying that churches are essential. And so, I have this article outlining that these pastors are standing up and they’re going to have church services. They’re saying on the day of Pentecost May 31st, everybody is going to be in church to see what they’re going to do. And they’re represented by law firm, the attorney spoke out about this, the law firm is Tyler & Bursch. And so, we are seeing people stand up and this is in many States.

How Is “Essential” Defined?


Well, one of the things, let me interject here, Tim. You were talking about how that essential is defined differently by different groups. And so, this is not like we’re saying our side is essential and their side is not like they’re saying. What these pastors do is actually based on the Constitution, saying the churches are essential, because the Constitution gives churches protection, it doesn’t give businesses protection. So, when you look from a constitutional standpoint, it’s not a matter of my opinion versus their opinion. And so, these pastors, they’re understanding that.


And David, like you said for years, I mean, you know, as far as our religion, it’s actually a triple protection in the First Amendment, because it’s freedom of religion, freedom of speech and freedom to assemble and in many cases for pastors, it’s petitioning government for redress agreements from the pulpit. So, maybe a quadruple protection in the first place.


Yeah, especially in some of these states that are having these some of these ridiculous lockdown orders. we have another piece of, I just printed out. So, it’s really email that was sent to us, but it’s been a group of pastors up in New Jersey and they’re taking a stand, kind of like the Black Robe Regiment, the reference from the pastors back in the founding the American Revolution days.

But they sent a letter to Governor Murphy up in New Jersey saying, hey, here’s what the Bible says, here’s where our faith stands, here’s what the US Constitution says. They even go to the New Jersey State Constitution and they point out that religion is deemed in the State Constitution as being essential.

Pastors Taking a Stand

And so, they write this letter and say, we’re going back because clearly it’s essential on all these levels, that’s essential from what the Bible teaches us from the US Constitution, First Amendment and from our state Constitution. So, you have a group of pastors in New Jersey that are standing up.

And I have another one with a group of churches up in Illinois that are standing up to Governor Pritzker is absurd and it’s what the article says, “Absurd Restrictions on In-person Services”. So, you are seeing, especially in a lot of these liberal States where the restrictions are very extreme and many times arbitrary, you are seeing a lot of pastor stand up and a lot of churches that are now going back to starting to meet again,


Alright, guys, well, Kelly Shackleford, one of the main focus on the front lines winning these cases and standing for these churches has done it for years, but boy, for such a time as this as he needed. He’s going to catch us up on some of those cases and talk a little bit about the legal theory behind why they should be able to meet. Kelly Shackleford, when we return on WallBuilders Live.

Schooling From Home

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Welcome back to WallBuilders Live, thanks for staying with us. Kelly Shackleford with us from First Liberty and Institute. Thanks so much for joining us once again. You know, look, you’ve been on the frontlines for a long time. You’ve won so many religious liberty cases, I’ve lost count. And even now, in the whole COVID-19 situations, you’ve been protecting religious liberty for churches and others.


You’ve already had several victories in Kentucky and other places. So, Kelly, your cases are not even really necessarily argued on whether or not there’s a compelling interest. You’re saying, look, even if there is a compelling interest, this is it narrowly tailored or at least restrictive. Explain a little bit of what those legal terms mean, to a pastor in a church.


Well, you know, I mean, fundamental rights are protected and the government can only infringe those when they come forward with what they say is an interest that is compelling, it compels the government to interfere with that right. And public health and safety is traditionally one of those things. I mean, you know, for instance, if I said, hey, I’m religious and I believe in child sacrifice, I mean, the government is going to have a right to come in and protect the children.


And we’d want that.


Yes. But you can’t just say, hey, this is public health and now I can do whatever I want. It has to be narrowly tailored. The requirement in the law is the government has to have a compelling interest and it has to be the least restrictive means with regard to your freedom, what they’re doing. So, it has to be really narrow.

So, in our cases, what we’re seeing is they’re saying, well, we have this interest in public health, but 1,000 people at the Home Depot is okay. Even though they’re walking by each other, they’re touching things, nothing is being disinfected every second after people touch things.

One Hour on Sunday

But a church for one hour on Sunday, where there are social distancing and people are pews apart and things are totally disinfected, well, we’re not going to allow that, that’s going to be a crime. Well, you can’t do that. That is clearly not a compelling interest to treat the church differently than these other entities. And so, it is not nearly tailored to the public health interests.

And the most glaring example is the case we had in Louisville with, you know, drive-in. So, the idea that you can’t drive in a parking lot of a church and listen to the pastor over a radio frequency when there’s no public health danger to that makes no sense. That is not a narrowly tailored or the least restrictive means on the freedom. And especially when you look at Home Depot and there’s maybe 100 cars in the parking lot and they’re not bothered by that. So, it has to be a compelling, truly compelling interest and it has to be narrowly tailored so that as much freedom as allowed as possible, can’t be overbroad and strip away freedoms unnecessarily.


I forget the pastor’s name that you represented out of Mississippi, but I remember watching you on the news back when this happened, when the cops, literally it was like every cop in town surrounded this church and they were going to have a drive-in meeting. It was the only way that most of their parishioners could meet, they didn’t even have internet at home. Remind me about that pastor and what happened in outcome of that one?


Pastor Hamilton is a wonderful guy. This is African American church, small African American church in Greenville, Mississippi. And what they had done is, a lot of their people didn’t have streaming access, it’s a poor church. They’re elderly people that didn’t know how to use those things. The only way they were going to have a service is if they did it the way they did it, which is a drive-in service where they came in the cars.

Six Cars in the Parking Lot

They had a Good Friday service. And I bet they had a total of, I think six cars in the parking lot. They were surrounded by like eight or so police squad cars, told that they were going to be criminally charged. And then on video and this is what you can’t make up, the white police officer said on video to the black pastor, your rights are suspended. Something you never thought you would see anywhere, much less in that kind of a scenario.

And so, we filed a federal lawsuit. In that case, the order was aimed only at churches in that city, the mayor had come out with this order. And it treated churches differently than any other entity and really was aimed at them. Again, no rationale for a drive-in service where you’re in your car, without being in danger. And good news is after we filed a lawsuit, they pull the order and they have backed down and that church is certainly back meeting without those kinds of threats.


What right now do you think is the greatest threat to religious liberty in the current situation?


Well, we knew going into this pandemic that it was a real dangerous time. Because when you have something, you know, really important, like public health and you know, the danger of people’s lives, the government is going to take over appropriately. They’re responsible for, you know, public health and safety and what the government can do to help the citizens.

But we knew that there would be abuses, that there would be a temptation to hang on to that power. And so that’s why we really sort of we’re real careful, you know, there never been a constitutional case in a pandemic. And so we knew the first one was going to be really important to set sort of the constitutional limits. And so that’s why we were so careful in filing and well, we prayed a lot, said you know, we really need the right case and right before Easter, we had that case in Louisville. They were banning the drive-in services.

There Is No Rationale

And you know, there’s just no rationale for, I mean, It’s not like one car is going to pass the Coronavirus, right? And so, we won that really crucial victory, I mean, that guy just knocked it out of the park. Right? I mean, really strong opinion by Judge Walker. That sort of at least set the parameters, but we knew the next thing would be, are they going to try to tell churches they can’t go back? They can’t have in-person services.

And of course, we just had that big victory, really another historic sort of precedent setting victory where we not only won in federal court, but the Attorney General of Kentucky joined us in the lawsuit against his own governor and on behalf of the people in the State and we won a statewide injunction protecting all the churches there to go back in service, in-person again. And they’re going to it safely, they’re going to protect their people. But so that was really important too.

And so that’s just you know, we’re going to have to fight the same battle, because there are a lot of States governors that want to keep their power, right? We’ve got the Governor of Illinois who said, he’s not going to allow churches to meet back until a vaccine is found. And in Hawaii, it’s been similar, they’re even not allowing drive-in services, even now in Hawaii. So, there, these people are going to try to keep their power, they love this new power they’ve gotten. And even when the threat, the health threat is kind of dissipating or lessening, they want to keep that power and use that as an excuse to oppress and we’re not going to allow him to do that. So, I mean, to me the biggest danger is that the new normal will be a country with less freedom.

A Winning Warrior


Good. Good. Well, thank you for what you do. You said at the beginning, the greatest threat to our constitutional liberties right now is that this stuff would carry on and that we would be, you know, literally preventing churches from being able to gather and exercise their constitutional rights.

I think we’re going to defeat those things because of guys like you, Kelly. Thank you for being on the front lines, man. Thanks for being a warrior and winning and being able to take our churches and our pastors and give them support, literally locking shields with them. I mean, I know they’re scared right now and they want to do the right thing. So, thanks for the advice that you’re giving them.


Oh, thank you for what you’re doing to get the information out.


We’re going to take a quick break, We’ll be back in studio with David and Tim Barton.

One-Room Schoolhouse

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We’re back here on WallBuilders Live. Thanks for staying with us. Back with David and Tim Barton now and special thanks to Kelly Shackleford for his today and probably not much sleep, guys. I mean, these attorneys that are fighting these cases are getting calls every day to help with churches across the country.

Religious Liberty Cases


Yeah, we actually got a call last week from some stuff that was going on Friday, Saturday and Sunday, where they were wanting help, some attorneys who want to help them and they were working with the Justice Department who was staying in over the weekend to help with some of these religious liberty cases. So, the Justice Department’s weigh in on some of the stuff out on the east coast. So, they are working long, long hours to get this stuff done. I was amazed that the Judge was wanting, he was one of the arguments by Sunday at six o’clock or whatever. So, they’re working, I mean, throughout on this, which is really amazing.

But you know, there’s a couple things that really stood out. Rick, you said something about these guys are locking shields and thanks for locking shields. And I just got a letter from a pastor and he’s got a group called ‘Locking Shields’ where the 280 pastors have come together and said, we’re locking shields and we’re telling the governor. And so, this really is spreading.

And you know, interestingly, it’s not just even with churches, I’m now seeing where that small businesses are saying, how can you give the big businesses protection, but not the small businesses? Why is it that Walmart and Lowes can stay open, but we can’t stay open? We’re all businesses. Why are you discriminating against us?


Well, especially when Walmart, for example, or Target, some of these big box stores, they will sell kids clothes. And so, some of these small stores that only sell kids clothes or going, wait a second, how come you’re allowed to buy kids clothes from Walmart and Target, but we can’t sell kids clothes? And this is where it does seem that there’s so many levels of kind of arbitrary rules restrictions that have been put in place.

Recognizing the Ridiculous

Or, you have somewhere like Michigan where the governor says, well, Walmart and Target can stay open, but they can only sell what I deem to be essential and car seats and diapers and seeds to plant crops in your garden, none of those things are essential. Right? Or on the lakes in Michigan that you can go out with a paddle boat, but you can’t have a boat with a motor in it, because that violate… It’s so arbitrary.

And so, you are seeing more and more people who are recognizing the ridiculous nature of some of these arbitrary guideline restrictions that are starting to push back. And really, I mean, as we mentioned and as Kelly kind of affirmed, we’re winning so many of these cases, it’s silly that we have to fight these. But we’re winning so many of these, because this is what the constitution was largely about, was enshrining in legal code the protection of what the declaration acknowledged and those were that we have God-given rights and the role of government is to protect our rights, not to dictate or take away those rights.


And I think one of the statements Kelly made is a really profound statement that I just think it needs to be our kind of, our marching orders going forward that we don’t let it come to pass. But Kelly said, “The biggest threat is that the new normal will be a country with less freedoms. And we just can’t be satisfied with having lost some of the stuff and giving it up and this is what you have to learn to live with and we may have more epidemics.” We can’t do that. We have to stand with the freedoms.

We have to stand with the Constitution. That is the government document. The governors are not the governing authorities, the Constitution is. And so, you know, Kelly and those guys are fighting diligently for the First Amendment aspects. But all of us need to recognize what the Constitution says and fight for all of these aspects. The Constitution under God is what’s made us great. It’s what’s made us different.

The Need to Know


You know, really does begin with us, I mean, we have to know our rights. We’ve got to study the Constitution. We got to know how to properly defend and assert those rights. That’s why we talk about it so much on the program. And folks out there that are listening, you can learn so much listening to the program and we’re glad you’re doing that.

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Is Religion Essential Or Should Governors Restrict It? – With Kelly Shackelford

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