Supreme Court, Crosses, Court Rulings, And More!: Recent polling shows that the vast majority of Americans support religious expression and religious symbols in public life. However, the other side is fighting hard against this. Are you allowed to have a cross on government property? Is this a violation of the First Amendment? Tune in now as we discuss a recent court case dealing with this and more!
Air Date: 03/11/2019
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.
Faith And The Culture
Welcome to the intersection of faith and the culture. This is WallBuilders Live! Where we talk about the day’s hottest topics on policy and faith and how it intersects with the culture. We always do that from a biblical, historical, and constitutional perspective.
We’re here with David Barton, America’s premier historian and our founder at WallBuilders. Tim Barton’s with us, national speaker and pastor and president of WallBuilders. And my name is Rick Green, I’m a former Texas legislator.
You can find out more about all three of us at WallBuildersLive.com. That’s our radio site where you can get a list of all of our stations, you can see the archives and listen to programs in the last few weeks, and most importantly you can click on that donate button. As a listener supported program, this program happens because of you, because of our supporters out there. So, please consider making a one time donation today or maybe a monthly donation, maybe come alongside us and think about what you can do over the next year to help us not only have this program on a daily basis, but expand our influence on the culture.
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Did We Predict This?
Later in the program Mat Staver will be with us. We’ll be talking about some cases that are happening before the Supreme Court right now and what his reaction has been watching the justices questioning in some of those cases.
Well, David, Tim, we talked about the courts quite a bit even since last summer when we had a new member of the court in Kavanaugh, but I don’t think any of us really predicted that there would be such big cases on the religious liberty side of things so quickly.
Yeah. There’s a lot of big cases on religious liberty. And, by the way, just for context and background, you go back and the First Amendment has two religion clauses in it. You have the Free Exercise Clause and you have the Establishment Clause. The Establishment Clause, basically, is to keep the government from setting up a national religious denomination, that was its intent.
The Free Exercise Clause is to make sure the government cannot stop a person from exercising their religious beliefs, however that is, unless, as Jefferson said, it actually causes you to physically harm someone else. If I believe my religious belief is that I should kill my parents, we’re not going to let you do that under religion. Or, if it undermines the morality of the nation. So, Jefferson through those two things out. Other than that the government can’t stop your free exercise.
What’s happened is over recent years we’ve had a lot more judicial activists on the court, they’ve come up with what they consider substitutionary test for what the Constitution says. The Constitution says that government can’t establish any religious denomination. They said, “Well, let’s come up with a test, we’ll call it the Lemon test.”, because it came out of the 1973 case Lemon v. Kurtzman. They said the only way that we’ll let the government do something religious is if the primary purpose of that religious activity is secular.
The Lemon Test
Now, that’s a loser from the beginning. You can’t–
We’ll let you be religious if you’re not trying to be religious.
Exactly. We will permit your religion as long as your primary purpose for being religious is secular. So, at that point, you start saying, “Well, that’s why you can’t have Ten Commandments up because that’s religious.” No, that’s secular because we want you not to steal, and kill, and not to purger yourself. And they said, “Well, but you can’t say that the primary purpose of a graduation prayer is secular, so we’re not going let you have prayers at graduation. We’re not going to let you do nativity scenes because the primary purpose is not secular.” So, that became the test, what’s known as the Lemon Test.
On the other side they said, “Well, we will allow you to practice your religion, the free exercise of religion, as long as we get to control what you do.” And in a case called Oregon v. Smith, or Smith vs. State. They came out and came up with a new test that said, “Well, we will let you practice your religion, but we get to decide when, and where, and how.” So, since that point in time, you just basically can’t win any cases at the court.
Now, under this court, it looks like the court is willing to dump both of those tests that they created to replace the Constitution. There was actually a case just heard at the court that deals with what’s called the Peace Cross in Bladensburg, Maryland and it’s– the lower courts have ordered and it’s real simple. It’s a war memorial cross, it honors forty nine people who died in World War I, at the end of World War I, they built this peace cross to commemorate the fact they want peace and they want–
It was mothers who lost their sons who did this.
Let’s Look At The Problem
Right. So, it was mothers who lost their sons over in Europe, the standard gravesite marker was a cross, so they’re following the standard gravesite marker, they’re honoring their sons who have just died. So, they erect this cross to honor their sons that they lost in World War I.
And this cross now, the lower courts have ordered that it be torn down. It’s 100 years old this year. They’ve ordered that it be torn down because you can’t say the primary purpose of erecting a cross is a secular reason. Now, under the First Amendment that is not the government establishing a religious denomination by allowing a cross to stand as a war memorial. That has nothing to do with the government creating a denomination.
So, now we’re at the point where if you follow the Supreme Court’s test you’re going to have to get rid of every single thing that’s religious. And the problem is this war memorial cross stands very near Arlington Cemetery.
Now, it’s on public grounds, too, which is significant.
Because the argument is, well, if they move it on private grounds– and this is a massive cross to move and you shouldn’t have to move it off public grounds anyway– but the argument is you can have nothing on public grounds that has any kind of religious symbol or symbolism–
At least under the Lemon Test you can’t.
Something From Every War
Under this at least more recent interpretation of the U.S. Constitution of the First Amendment. So, as you’re indicating, that’s actually pretty close to Arlington National Cemetery where if listeners are not familiar Arlington National Cemetery, still an active cemetery today, where heroes from World War I and World War II have been buried, heroes, from more recent wars, Desert Storm–
Actually, they have something from every war. They go all the way back to every war. They have they have burials there from every war.
So, where Arlington is, at this active burial site, they have memorial crosses in Arlington National Cemetery honoring those who have paid the ultimate price for the freedom of America. And we’re saying, “Well, nope, if there’s these memorial crosses in the cemetery you have to take down those memorial crosses as well.” And this clearly is not the direction of the American people, at least based on recent polling. I actually have some numbers in front of me. Based on how Americans feel about religious expression or religious symbols–
And there was polling this specifically asked, “Should the cross be torn down?”
Yeah, and I think it was over 80 percent said the cross should remain. Only 2 percent of people surveyed thought the cross should be torn down.
Only two percent. My gosh.
Right. But this is where most American people are. In fact, 74 percent of Americans surveyed said they support praying in public schools and on school ground during free time, that’s acceptable.
Americans In Favor Of Prayer In School
Wait a minute – praying at school, prayer at school. So we’ve got–
74 percent of Americans think it’s okay, 73 percent of Americans think “In God We Trust” is acceptable to go on government buildings, on public property. 68 percent think it’s okay for high school seniors during their graduation speeches to pray, two mention God–
So, two out of three Americans.
And I can keep going down this list. But the point is that the vast majority of Americans support religious expression and religious symbols in public life. But we have a segment of culture that is so anti religion that they have tried to remove these. And, actually, we have this case at the U.S. Supreme Court that has already been heard at this point, the decision will come down this summer. But dealing with – are you allowed to even have a cross on government property?
And I would argue that it’s the court that has made the culture so hostile to religion. Because they have created these artificial tests to replace the Constitution that invite all these challenges to religious expression. And now they’ve got a chance to at least turn that back and go back to the Constitution.
And I would argue probably it’s the academics who trained the lawyers, who then became the judges, who then, right–
A Win Would Equal A Seismic Shift For Religious Liberty
–helped decide this judicial activism. So, really you do see this hostility from academics, you see this hostility from some different areas of law and litigation. But, specifically, it’s judges right now who are the most active. And, really, the activist judges that are the ones very anti religion saying these things can’t stand.
Fortunately, there are some really good people out there who are fighting to defend these kinds of situations. The Bladensburg Cross Memorial, First Liberty was the group who actually was working to do that. Kelly Shackelford is their president. We’ve had Kelly and many other guys on before. But there’s lots of other organizations that do this kind of stuff.
You have Alliance Defending Freedom, Mike Ferris is now their president. You have Liberty Counsel, Mat Staver is their president. And lots of organizations that are fighting to defend these religious liberties in a culture that oftentimes seems hostile to these very acts.
And, actually, as Kelly had the case in court this week on the Bladensburg Cross, Mat Staver was in the court watching all the arguments. And he watched the reaction of the justices, and the questions they asked, and what he saw is going to be interesting. So, we’re going to talk to Mat and see what he saw and what he predicts is going to be the outcome of this case. Because if we win this thing, this is a seismic shift for religious liberty if we win this thing.
Mat Staver from Liberty Council. It’s LC.org. Of course, he’s argued before the Supreme Court many times himself. In this case, he got to sit back, and watch, and observe, as Kelly argued this particular case. And, actually, got to really, like you’re saying David, kind of read in to what the questions were from the justices, their body language, all those things. We’ll see what his assessment of that was.
Stay with us, folks. Mat Staver our special guest when we return on WallBuilders Live.
Red, White, Blue, and Green
Hey friends, a special event is coming to you. It’s called Red, White, Blue, and Green. It’s a stage show and it’s our opportunity to bring history to life, to bring the Constitution to life, to equip and inspire you and your family, and the people at your church and in your community, to get involved and do more. To be given true action steps on what you can do right there in your backyard to preserve freedom for future generations.It’s going to be a fun evening. We’re going to laugh and learn together and get educated. There’s gonna’ be lots of great music, and presentations, and inspirational stories. It’s called Red, White, Blue, and Green. You can make it happen right there in your hometown. We’re gonna be filming live in Thousand Oaks, California, on the evening of March 23rd, and streaming it all across the nation.
You can be the one to bring it into your community by streaming it to your church, or in your home, or even just watch it individually if you like. Go to ConstitutionCoach.com today and you’ll find out more. ConstitutionCoach.com. The event is on March 23rd. We’re hoping you’ll participate with us and help us restore America’s Constitution.
Moment From American History
This is Tim Barton from WallBuilders with another moment from American history. After the final victory at Yorktown the Continental Army awaited the outcome of peace negotiations with Great Britain.
Pastor Israel Evans, a chaplain in the army, proposed to George Washington that they build a structure where church services can be held during the months of waiting. Washington approved the plan and urges officers to ensure that the soldiers attend that service.
Pastor Evans further knew if we were to secure the liberties they had fought for, sound education would be crucial.
He declared, “Every parent and every friend to the freedom of his country ought to be attentive to the improvement of our youth and the principles of freedom and good government. And then the people will stand fast in their liberty for a long time.” Our schools today need to return to teaching the principles of freedom and good government in order for America to survive and prosper. For more information about Pastor Israel Evans and other colonial Patriots go to WallBuilders.com
What Did You Think?
Welcome back to WallBuilders Live. Thanks for staying with us. Our good friend, Mat Staver, back with us from Liberty Council. Always good to have you, Mat. Thanks for your good work. Thanks for some time today.
Thank you. Good to be with you.
Hey, so we had a big Supreme Court case dealing with a cross on public land, it’s a veterans memorial. So, you were there for for that argument and saw that case take place. What did you think based on the questioning of the judges?
Well, this is a 40 foot tall 93 year old peace cross that goes back to honoring World War I veterans. And it was designed because back in the World War I time frame, these smaller crosses all over Europe were seen by our war heroes and war veterans honoring our fallen soldiers. So, this has been there for a number of years until 2014. The American Humanist Association filed suit. They want it bulldozed, frankly.
I believe, having sat through the argument, filed a brief in the case, and listening to the justices that they’re not going to bulldoze this 93 year old 40 foot tall peace cross as an honor to these fallen heroes soldiers.
The real question is what’s the implications? And two big issues come out of it. One is are they going to overrule past precedent and also ultimately make some better rulings that give good guidance to lower court judges and elected officials? Because right now the Supreme Court has made, frankly, a mess of some of these Establishment Clause claims and issues so that it’s hard for the average person to know whether this display is Constitutional or not.
The average person nothing Mat. I went to law school and I still get confused on all of these different standards. It’s crazy.
A Matter Of Pure Sheer Will?
Yeah. Like on a nativity scene it says based on the precedent that the nativity scene is Constitutional so long as it has secular symbols and the holiday like Santa Claus and the reindeer. But it never gives you the idea or any guidance as to how close does Santa need to be to the nativity scene? How many secular symbols of the holiday need to be present? So, sometimes they use a particular test called the Lemon Test. Other times they don’t. So, it just becomes a matter of pure sheer will of how many votes you can get a Supreme Court.
The other issue, and this is a big one, the Supreme Court has created over the years an exception to filing lawsuits when it comes to the Establishment Clause. In every other area of law, you have to have a direct injury. You can’t just file a suit because you don’t like someone, because you’re offended at someone, or something. But in the Establishment Clause, religious words or symbols such as crosses, nativity scenes, In God We Trust, so forth, you can file suit simply because you’re offended not because you have any personal injury.
And that issue came up and I think if they ultimately bring the Establishment Clause back into line with other general lawsuits that you have to have a direct injury, not just offence, that’ll shut down most of these challenges that we see across the country.
So, that’s kind of that Heckler’s Veto thing, right?
Where somebody– they may not even be, I think our, in fact, I think our suit in Texas years ago on our Ten Commandments at the Capitol with someone they didn’t even live here, just happened to be walking by, or maybe it was another state where that happened, but we see that all the time. They just happened to drive by and see something, “Oh, I’m offended.” So, they’re not even a resident of that community, so this whole idea of standing has been exempted for them. They’ve been able to bring those suits and you’re saying that might be a question they address here.
That’s right. In fact, in your case, remember, you had that granite monument of the Ten Commandments on the state Capitol lawn and a homeless attorney says, “I’m offended by it.” So, he brings a lawsuit and it winds up at the United States Supreme Court. Well, so what if he’s offended by it? You can’t file a suit because you’re offended that the government is spending money this way or that way, or because the government operates one way versus another way, or because you’re offended – that’s some other issue. You’ve got to have a direct personal injury.
And if the Supreme Court closes that loophole, which they created solely to open up the floodgates to have these challenges in the courts, if they ultimately bring it back in line with every other area of law, if they bring it back in line that you have to require a personal injury, then most of these challenges, frankly, very few would ever make it into the courtroom. Nativity scenes, In God We Trust, the Ten Commandments, crosses as memorials, crosses on the top of water towers, etc., or in the city seal, all of those would no longer be litigatable in the courtrooms.
Wow. That could be that could be a huge change, a very positive change, of course. Because even even in some of those cases, the right place to argue that is in the election for whoever is making the decision as the elected leader in that community for that sort of thing. That’s the right–
Gorsuch Hammering Home
Exactly. And what has happened, and this is the– coming from the activist court of the 1960s and 70s, they did not want to allow this democratic historical Judeo Christian history to continue, so they wanted to get involved, and micro manage, and frankly, eliminate religious expression from the public square. And the way they did it is they opened up the floodgates.
They said, “If you’re offended because you’re driving through the city and you look up and you see in the far distance a cross on the top of a water tower, well, you can go in court, and file suit, and get that water tower cross removed.” That’s absolutely ridiculous. And, specifically, Justice Gorsuch really hammered that issue home. So, hopefully they end up closing that loophole. And I think, I hope, that they will also overrule some bad precedent called the Lemon Test.
And you mean, by the way, when you mention Gorsuch hammering home you mean in the question. He really, that was an area he zeroed in on it.
That’s right. Yeah. He really zeroed in on that when the American Humanist Association attorney was up arguing, he zeroed in on that. In fact, he even pointed to over the head of the chief justice where Moses and the Ten Commandments is there.
Did he really?
Yeah. And I was actually waiting for him to say, “Just because you might be offended about that, does that give you the right to sue the Supreme Court?” He didn’t actually say that, but that’s what he was inferring.
Update On Liberty Counsel
Wow. Wow. That’s great. Okay, Mat, almost out of time, but I would love to hear what other cases if you got going right now? Anything that Liberty Counsel you want to update us on?
Well, two cases we just signed on and we actually filed a motion to dismiss. Two of them come out of Indiana. The ACLU of Indiana filed suit against two different counties for nativity scenes. So, our cases will be directly impacted by the peace cross.
Obviously, we have many other cases as well. Pro-life cases involving sidewalk counselors. We won a big one just recently in New York and, of course, still defending Sandra Merritt who provided the undercover videos that revealed the barbaric practice of Planned Parenthood harvesting baby body parts. That’s still going and that’s right now in the heat of the litigation battle.
And that at LC.org, you can follow each of these pieces of legislation and also get on the e-mail list for alerts of new cases and as things move through the process. And have to say to our listeners – that’s also the place you hit that donate button and you help Liberty Counsel continue to do the great work that they’re doing.
Mat Staver, God bless you. Keep up the great work and look forward to having you back again soon.
Thank you. My pleasure.
Stay with us, folks. We’ll be right back with David and Tim Barton.
This Precarious Moment Book
This is David Barton. I want to let about a brand new book we have called This Precarious Moment: Six Urgent Steps That Will Save You, Your family, and Our Country. Jim Garlow and I have co-authored this book and we take six issues that are hot in the culture right now.
Issues that we’re dealing with, issues such as immigration, race relations, our relationship with Israel, the rising generation Millennials, and the absence of the church in the culture wars, and where American heritage is, our godly heritage. We look at all six of those issues right now that are under attack and we give you both Biblical and historical perspective on those issues that provide solutions on what each of us can do right now to make a difference.
These are all problems that are solvable if we’ll get involved. So you can grab the book This Precarious Moment and find out what you can do to make a difference. This Precarious Moment is available at WallBuilders.com.
This Says Something About Where The Court Is Going
Welcome back to WallBuilders Live. Thanks for staying with us. Special thanks to Mat Staver for joining us as well. One more time, that website is LC.org. We’re back with David and Tim Barton. Guys, pretty good assessment, I’d say a positive assessment, based on what Gorsuch did. That’s pretty impressive. David, you’ve given tours in there and pointed that out to many people before. I think that’s pretty cool that a Supreme Court justice was pointing it out to one of the attorneys.
Yeah, I love the fact they did that. But that says something about where we think the court’s going as well. I think they will probably– I don’t know that I can say they’re going to kill the Lemon Test, but I certainly hope they do, I certainly hope that they reverse it. I know the solicitor general of the United States which is– the solicitor general is the attorney for the U.S. government that argues on behalf of the president and the administration.
So, the solicitor general literally asked the Supreme Court to get rid of the Lemon Test. It’s an unworkable test, so many individual justices have criticized it, it keeps leading to the wrong conclusions. Under the Lemon Test you’re not able to do things under the Constitution that those who wrote the Constitution they themselves did after the Constitution was in place. So, it causes you to call it unconstitutional what the Founding Fathers called Constitutional.
A Coercion Test
So, they’ve asked for it to be replaced and Kelly Shackelford, who, his was his case at the court, they have asked the court to come up with a coercion test. And this goes to what Mat was saying in that you have to have a direct injury. The court opened it up and this is the only area where you don’t have to have a direct injury to come in and bring a lawsuit just because you’re offended. As you said, the Heckler’s Veto, the Senator Veto.
So, if they go back to a coercion test, it’s like you have to show that you’re really, really, injured and really hurt before you can stop somebody’s free exercise of religion or the way they express their faith. And that goes back to what Jefferson said, “Look, unless what you’re doing physically hurts someone else or injures the morals of the nation, it’s okay for you to do.” So, hopefully we can get back to that position.
And, also, we may see Kelly Shackelford back at the court a little later this year. Because I mentioned earlier when we were starting, the other part of the First Amendment that the court has goofed up is the Free Exercise clause.
So, one of the cases that the court just looked at was the case of Coach Kennedy out of Washington state that after a football game his high school team went off the field and he went over by himself and knelt down and prayed. He didn’t have the team with him, it wasn’t part of any student thing, but they fired him because he went and knelt down and prayed and could be seen when he prayed. Somebody could see him if they looked at it. So, that case went to the court.
And at the court– and it’s interesting, the way that you argue cases since that Oregon v. Smith or Smith v. State case back several, two decades ago, you don’t argue for free exercise of religion anymore because you just can’t win. So, you argue that Coach Kennedy’s free speech was being violated. He had the right to have the freedom of speech to express himself and if his speech is that if I want to kneel down, he can do that, that’s freedom of speech.
This Would Be Momentous
Well, the Supreme Court said, “No, we’re not going to take Coach Kennedy’s case. We’re going to send it back to the Washington State Supreme Court. And they gave some instructions on how the court needed to look at it and how they ought to approach it. But the court also said, “We’d like to see this back with a challenge to the Oregon v. Smith decision. We think that needs to be challenged.”
So, they have– this is really unusual– the court has sent a message, “We want to see somebody bring us a case where we can dump this thing.” Because they said, “This Coach Kennedy case should have been brought to us under free exercise of religion. It came to us under freedom of speech because we have so messed up the First Amendment. You can’t even defend religious expressions anymore.”
So, that’s really, really, good news. Kelly also has the case of the Cline’s in Oregon. They were the bakers and in Oregon they were told they have to bake– do bakeries for homosexual weddings and then the state fined them 135,00 dollars, essentially closed their business down. So, that’s another case coming back. And Kelly will bring that back under that challenge on free exercise of religion and give the court something to work with.
So, we could see that happen later this year. And if so, the court has already signaled that they want to make a change there. So, this could be a year that we literally get the First Amendment back. We roll back 50, 60, even 70 years of bad decisions if you can imagine. Man, what a momentous occasion this would be.
Supreme Court, Crosses, Court Rulings, And More!
It could be incredible and this program will be a great place to stay tuned in. We’ll constantly have attorneys like Kelly Shackelford, and Mat Staver, and others, that are arguing these incredible cases before the Supreme Court, come and tell firsthand what happened there. And it’s a chance for you to learn and then share it with your friends and family. In fact, I encourage you to do that today at our website, WallBuildersLive.com, you can take today’s program and send it out to your friends on Facebook, and Twitter, and all those other social media tools. So, please consider doing that.
And then also consider making that donation we talked about at the beginning of the program. That’s a chance to help spread this good news all across the nation and help equip and inspire folks to restore America’s Constitution and be just simply good citizens. That’s what this is all about.
We really appreciate you listening today. We’re certainly thankful for Mat Staver and Liberty Counsel and the good work that they do and thank Mat for his time coming on today. Be sure to visit WallBuildersLive.com and WallBuilders.com today. You’ve been listening to WallBuilders Live.