Game Changing Victories Are Happening At The Supreme Court: We have been praying for these kinds of victories to happen at The Supreme Court! You are going to love this episode! Tune in now to learn more!
Air Date: 07/17/2018
Guest: Kelly Shackelford
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’re talking about today’s hottest topics on policy, faith, and the culture, always doing that from a Biblical, historical, and Constitutional perspective.
We’re here with David Barton, America’s premier historian and the founder of WallBuilders. Also, Tim Barton, national speaker and President of WallBuilders, and my name is Rick Green, I’m a former Texas state legislator, national speaker, and author. Today’s program is going to be talking about a history making week at the at the U.S. Supreme Court. A phenomenal—phenomenal—couple of victories we’re going to be celebrating today. They’re going to impact you, your family, your backyard, your church, your school, your children, and grandchildren, and their ability to live in freedom. This is a great, great day.
Looking forward to having Kelly Shackelford with us later in the program. If you’d like to find out more about the program, go to WallBuildersLive.com. That website will tell you about all three of us here that host the program.
For today’s program it’ll be Kelly Shackelford all day, because we’ve got some great victories to talk about. I’m telling you folks, we’ve been praying for this for years—literally for decades—to get these kind of victories out of the U.S. Supreme Court. So you are going to love today’s program.
We’ll come back with Kelly. Be sure and visit his website, FirstLiberty.org. They are a fantastic organization. They fight these legal battles at every level, all across the country for folks, and they are able to do that because of folks like you and me supporting them. I encourage you to do that today at FirstLiberty.org.
Our Guest: Kelly Shackleford
And while you’re in the giving mood here at Independence Day celebration time, just a week or so ago, while you’re celebrating freedom and liberty, and investing in freedom, there at WallBuildersLive.com consider clicking on that donate button and making a donation in celebration of our liberty this year.
We’re gonna take a very quick break. We come back, Kelly Shackelford—again, probably one of the best attorneys in the court, if not probably one of the best attorneys in the country, argued multiple times before the Supreme Court and won, which is phenomenal, and just incredible the impact that he’s had on our liberty through these efforts in the courts.
We’re thrilled to have him with us. Stay with us, Kelly Shackelford will be here when we return with WAllBuilders Live.
Moment From American History
This is Tim Barton with another moment from American history. As the American War for Independence began, the president of Yale was the Reverend Naphtali Daggett. When New Haven, the home of Yale, came under attack about a hundred citizens rushed out to meet the British.
The Reverend Daggett galloped by them on horseback, his clearable robes flowing behind him in the wind. He took up a solitary position atop a hill. The 2,500 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.
Some Amazing News from the Judiciary Branch!
Welcome back! Thanks for staying with us here on WallBuilders Live.
Our good friend Kelly Shackelford from First Liberty Institute is back with us. Kelly, always good to have you, brother. Super excited to have you today after these great victories this year you’ve had it the Supreme Court.
Well, thanks Rick. I don’t know why the Lord decided to put all the great stuff in one week, but it was definitely a historic week for us.
Well, not only not only the victories of the Supreme Court. How many attorneys that have worked for First Liberty, or that you’ve worked with in some capacity, have now been approved on the federal bench? How many is that now?
And at the highest levels! And then and then not even the federal bench. The Solicitor General of the United States is one of our network attorneys. The guy who is just Attorney General before William Barr is one of our network attorneys. So it’s just amazing.
We’re getting people on the federal bench all over the country!
But this one—the fact that one of our own employees, our Deputy General Counsel, Matt Cass Merrick, is now a federal judge for the rest of his life. That’s an example to people I think of the type of judges that are being put on the court under the President. You’re just not going to find anybody a more solid more brilliant solid committed to the Constitution than Matthew Cass Merrick and.
And to kind of make your point, Rick, Guess who is the one who swore Matt as a judge after he was confirmed by the U.S. Senate? One of our network attorneys who is a federal court of appeals judge now for the rest of his life.
So that shows you our kind of alumni network of people that work for First Liberty, they’re going on the courts for life all over the country so much so that they’re now the ones swearing in the new guys from us that are coming in. So it’s really a blessing to get these great judges on the court, and they’ll be there for 30 or 40 years.
And what that means to us and to every American is finally, we’re getting some strict constructionist, some constitutionalists, that understand the original intent and are going to adhere to that will be hearing the very cases that you and our other friends in this realm are going to be bringing in for the next couple of decades. So this means victories down the road, not just victories today. This means victories generationally. These are victories our kids and our grandkids are going to enjoy.
Absolutely. What we’re doing right now in the court is going to set the courts for the next 10, 20, 30, maybe even 40 years. So this is really long term impact. In fact, if people don’t know that, they can go to FirstLiberty.orgt. We’ve got—I think at the bottom of the website—something about judicial nominees where you can follow all that, seats that are open and how we’re filling them, the resume is on the people that are being put on there.
But I’ll tell you, Rick, this is different than we have ever done in this country. It’s always been the politics of, “I helped you get elected President.” “My brother’s a lawyer.”
That’s not what’s happening now.
Overturning the Lemon Test
Trump said, “I’m gonna pick these type of judges. These judges that are originalists, that think that they should go by the text of the Constitution, not by what politics says,” and that is a real change.
We’re we’re getting brilliant, young, committed constitutionalists on the court that are gonna be there. As you say, my grandkids’ kids are gonna go before these guys, and that’s a real impact on the future of what we’re doing in that realm.
What a difference elections make. It wasn’t four years ago, five years ago, we would just remember when so many bad decisions were coming down. In fact, there was one particular weekend right around July 4th when we got multiple decisions that were just devastating, and I was thinking, “How do you turn this around?”
And here we are, just a few years later, and you talk about decades impact one of our topics for today.
One of your cases deals with the lemon test, which is at 50—almost 50—years old now. 48—49 year olds. 1971 was a long time ago.
That has been causing defeats on original intent for religious liberty for decades, and you gave us a hint a couple of months ago.
You said, “Guys, get ready. We’ve basically been invited by the justices to bring these cases.”
So catch us up on what ultimately happened on these victories that you had.
The Sweet Cakes Case
Well, there were two victories in the same week. One was the case that everybody is aware of, I think. The Aaron and Melissa Klein, the Sweet Cakes Case out of Oregon, where these are the Christian bakers who were attacked because they could not do a same sex custom wedding cake for somebody’s same sex wedding. They ended up being fined $135,000. They ended up being bankrupt, their business destroyed, there’s been death threats against them and their children, just horrible.
But I want to tell our listeners: Kelly, on your website you’ve got a video about them that is so good, so powerful. The left is usually better at telling the stories of what’s happening out there in the culture, but you guys did an amazing job with this video. I encourage people to go to the website and watch that, because you got to realize how devastating these decisions are to families like the Klein family starting right now.
I hope people go to First Liberty and just look up Erin and Melissa Klein, and share that video with other people. People need to know what’s happening, because this is devastating. You work your whole life to build up a business, you have it going, you’re planning to pass it on to your children, and the next thing you know, you’re being destroyed by the government because you won’t bow your knee and the Bible to what they want you to do.
So it’s a really dangerous case. If the government can do that to them, they could do it to everybody. I don’t care what your business is. They can tell you, “We’re going to destroy your business if you don’t…” and then fill in the blank.
8,000 Requests Per Year
But the good news is the bad decision by the Oregon Court of Appeals—and I think you know this, but your listeners don’t always seem to understand—the Supreme Court gets about 8,000 requests a year. They only grant cert on less than 1 percent.
It’s very difficult to get them to take.
Well, they granted cert on this case, meaning the majority justices said, “We’re taking their Erin and Mellissa Klein case,” they immediately vacated the decision below and then they sent it back down and said, “You need to redo this, and you need to look at Masterpiece this time,” which is the case a few years ago that said, in this very similar context, that hostility against religion is not allowed under the Constitution.
So we’re still not done there. But it was a great victory for Erin and Melissa in that this bad decision was thrown out and we’re now going back for a do over.
If that doesn’t work, we’ll go back up.
But that was victory number one. That was on Monday. Then Thursday is when the huge decision came down which was the Bladensburg Cross, the American Legion Case, which in my view is a landmark decision that really is a shift in history towards an incredibly good way for anybody who cares about religious freedom.
Hey Kelly, we have to take a quick break, but we’re going to break on this one. This is the cross case that you warned us a year or two ago.
“Hey, if this thing goes the wrong way, we’re talking Arlington Cemetery and having to take crosses down in cemeteries all over the country.”
It would have been a very very bad situation. Fortunately we prevailed, and it’s the other side of the story.
We’ll get that we come back. Stay with us folks. Kelly Shackelford is our special guest today
We Want To Hear Your Vet Story
Hey friends! If you have been listening to WallBuilders Live for very long at all, you know how much we respect our veterans and how appreciative we are of the sacrifice they make to make our freedoms possible. One of the ways that we love to honor those veterans is to tell their stories here on WallBuilders Live. Once in awhile, we get an opportunity to interview veterans that have served on those front lines that have made incredible sacrifices have amazing stories that we want to share with the American people.
One of the very special things we get to do is interview World War II veterans. You’ve heard those interviews here on WallBuilders Live, from folks that were in the Band of Brothers, to folks like Edgar Harrell that survived the Indianapolis to so many other great stories you heard on WallBuilders Live.
You have friends and family that also served. If you have World War II veterans in your family that you would like to have their story shared here on WallBuilders Live, please e-mail us at [email protected] Give us a brief summary of the story and we’ll set up an interview. Thanks so much for sharing here on WallBuilders Live!
The Biggest Religious Liberty Victory Yet!
We’re back with WallBuilders Live. Thanks for staying with us! Kelly Shackelford, our special guest today, FirstLiberty.org is the website. You got to go to the website, you got to get on the e-mail list, because there are so many cases these guys are fighting.
You want to keep up with all of them.
But just this year two victories at the Supreme Court? Kelly, it’s like a career maker to have one victory at the Supreme Court. What are you going on now? Two in the last week, but you’ve had several in the past year too.
Well, if this is great but I tell you I haven’t seen. look I’ll put it this way. and I’ve been telling our supporters as I said there are two Religion Clauses, Establishment Clause and the Free Exercise Clause. There is a bad case under both of those clauses that has created so much problem for religious freedom, and really, a lifetime goal would have been just to kind of reduce either one of those cases and open up more religious freedom than we’ve known in our lifetime.
One of those is under the Establishment Clause is the lemon case. It’s aptly named.
It’s a horrible, horrible case.
It is what led to all these attacks on nativity scenes, and menorahs, and the Ten Commandments, and things like this cross as this veterans memorial, because it’s not what the Constitution says. The founders would be appalled that the Constitution is being used sort of weaponized to attack religion. They just didn’t want there to be established church. They didn’t want there to be a national church, or anybody coerced to support a national church.
We Blew Up Lemon
But the idea that separation of church and state is now we’re supposed to go and, anywhere government, wipe religion away. The Founders would be appalled at that. They had a chaplain, they opened in prayer, they did all kinds of things that show they didn’t believe that. That certainly isn’t in the Constitution.
But just two years ago, is there any chance we’re going to get rid of lemon in our lifetime?
I’d say “Well, probably not in my lifetime.”
Well, we just blew up lemon. That’s what happened in this Bladensburg Cross Case. Again, people who don’t know it’s a veterans memorial that was put up almost 100 years ago by mothers who lost their sons in World War 1.
It’s a cross. It was originally on private land on American Legion. What happened is they built roads around it and eventually the government took over the land, but they didn’t want to disturb the memorial.
Then here comes the American Humanist saying, “You can’t have a cross on government land.”
At the court of appeals they said, “That’s right. After one hundred years, tear it down.” And in fact, one of the judges said, “Why don’t we just cut the arms off the cross? That way we can keep it there, but nobody will be offended.”
Seriously, that’s how we arrived at the Supreme Court. If they up uphold that, as you said, think of what that means. They have to go into Arlington Cemetery, it’s only two miles away. They’ve got to tear down the large crosses there. They’ve got to come into every community of every state of this country. The religious cleansing would be beyond what we could even imagine.
But instead of a religious cleansing, horrible, nightmarish result, we went for the opposite and we said, “Not only should you uphold this, this is the time to get rid of lemon. It’s no good. It’s not what the Constitution says, and it’s caused all this damage and hostility to religion. You need to throw it out.”
And you know what? Six of the justices, in their separate opinions, wrote that lemon is no good. We are not applying lemon anymore.
So most people think—and I’m amongst those—lemon is now dead. That was their weapon to attack religion under the Establishment Clause, and everything is going to be changing in the future.
For our listeners, that means this applies not just to this case. It removes the test. So that, like you said, is a major, major weapon—perhaps the most dangerous weapon—that the left has used against religious expression in the public square, has been taken off the battlefield.
And you know what? This kind of rotates back to what you and I were talking about earlier. Why is that? Well, Justice Kavenaugh was awesome. He said, “Lemon is garbage.”
Well, having specific words used by Justice Corsets during the oral argument was he said, “Lemon was a dog’s breakfast.”
In his opinion he wrote that Lemon was, quote, “A misadventure, but is now going to be put on the shelf forever.”
So wow! These guys are they’re channeling Scalia. Remember? He called it something like, “A ghoul in a horror movie,” or something like that.
No More Following Bad Ideas from the 60s and 70s
Well, it just shows you that it’s getting good judges. Here’s what is happening here. I think it’s going to happen in all areas of law because we now have justices who think their job is not to be a politician, but their job is to follow the original meaning of the text. Guess what? We’re gonna start to see, as in this case, we’re going to see our country return to the words of the Constitution, to our first principles, not just the decisions that were written in the 60s and 70s by liberal justices.
That’s why you hear the other side try to push over and over again following precedent and stare decisis. They don’t want to move away from the bad decisions that were written that aren’t based on the Constitution. Heaven forbid we go back and look at the actual words of the Constitution, what the founders really said, and follow that.
But that’s what’s beginning to happen, and that is why we’re moving back to our first principle of religious freedom. This is a first step.
Look, there are going to be people that try to make this a narrow decision, because we don’t know where this is going in the future. This is the ship going one direction for 50 years, and the ship is now turning in the other direction. And it’s just the beginning.
It’s huge. And Kelly, I wonder how much of a—I saw an article. Clarence Thomas has never really been a big fan of stare decisis, and has been kind of publicly saying, “Hey, this is crazy for us to be held by these decisions from years ago.”
The Result of Decades of Battle
Even a liberal website did an article with a guy saying, “Hey, Thomas is right about this.” I was really shocked about that.
But that changes not only for religious liberty, but like you said, for the entire Constitution, that we’re actually looking at original intent now. We’ve been talking about this—in the Federalist Society and in conservative legal circles—for decades, hoping we get to this day.
It looks like we may be there! At least we’re moving very close to be in there.
Yeah. We’re starting to. Look, Roberts is trying to moderate things, move things very slowly. Is that frustrating to people? Yes it is.
But if you look at the direction we’re going, it’s a different direction.
The analogy I’ve given to people, Rick, is kind of like water dripping on one side or the other of the Continental Divide, that drop is going to end up in a very different place, but at first it looks like they’re very close together.
We’re seeing that movement away. We are moving away from these liberal decisions of the Supreme Court. This stuff, where court is creating rights—which it has no right to do—we’re moving away from a living Constitution where they can make things up. We’re moving back to “What does the text say? What did the founders do here?”
That is huge. And again, as you say, it’s not even just religious freedom. But what’s happening in religious freedom, we are already seeing a major move with this American Legion case.
This is a Really Exciting Time
By the way, if people want to look at this they can go to our website. They can read the opinion, they can look at the briefs, they can read anything they want. But don’t believe some of the Liberals and what they will try to write about these opinions. They are so scared of where this could go, and they’re trying to cabin all this into right that these decisions are very narrow in all this.
And anybody who knows what they’re reading knows this is big, big, big. This is a big change, and it’s just the beginning. Now we’re going to bring these other cases through and take the next step and it’s going to be great for our country. It’s a really exciting time.
I haven’t been this excited in forever! This is this is fantastic. This is a watershed moment. Folks need to celebrate! We need to thank the Lord for the victory, and a lot of people were praying for you guys and praying for him.
Obviously there was a bit was a bit could’ve gone either way. It took an effort for us to have this kind of victory to celebrate.
Looking forward to getting you back soon as things develop, especially on the Klein case. We’d love to love to follow that with you and keep our listeners updated on that. The best place for people to stay updated is at their website, FirstLiberty.org.
Go to FirstLiberty.org
And also, as I mentioned earlier, that’s a great place to give as well. I can’t stress that enough. Kelly, I know you guys have grown. You’ve got a great team of attorneys. Y’all are involved in so many cases, and I know and most of the time you take these cases for free. These are people that have had their rights violated, and you’ll step up and say, “Hey, we got your back.”
That only happens because of people that donate. I really encourage people that go to that website.
Thank you Rick. I’ll give an example, the American Legion case that we just did? That took two and a half million dollars over six or seven years. What is that worth to change our future? So I encourage everybody, if you want to be a part of change in history, get involved with First Liberty and be a part of something that’s great.
We’re living in a unique time right now.
Talk about investing in freedom! You’re invested when you invest in First Liberty, you’re investing in the next generation’s enjoyment of freedom that we have here. So check it out. FirstLiberty.org. Click on that give button and give as best you can right now, because they’ve got this matching grant going, it’s a great way to double, and you’ll also see all these great victories. They’ve got this biggest 30 thing where they’re explaining all these victories over the last few years. A lot of great things are at the website.
Thanks to Kelly Shackleford
Kelly, I’ve kept it longer than I said I would.
Thanks so much man. I know you got a lot going but we just thank the good Lord for you. Keep up the great work and we’ll have you back again soon now.
Thank you Rick. I appreciate you, brother.
Stay with us folks, you’re listening to WallBuilders Live!
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The Tip of the Spear
Welcome back to WallBuilders Live. What a great, great day. Special thanks to Kelly Shackelford for joining us today. One more time, his website is FirstLiberty.org.
Their team is incredible, they do a fantastic job not only these victories we’ve been talking about today, but year after year they have been in the trenches, fighting these fights and moving the ball down the field in the right direction.
This is a great victory week, we kind of get to celebrate this week, but that took a lot of time—even this one case as he mentioned, more than two million dollars for that one case, over six years to get there. That happens because of supporters like you, so be sure and visit their website, and get on their e-mail list, and pray for those legal teams. We see the politics all the time, we see the campaigns.
That’s right in our face.
We don’t typically see what’s going on behind the scenes on the legal front. And there are a—just an army, really—there is an army of Christian attorneys out there with the right value and the right skill set to win these battles, and Kelly’s team is right there at the tip of the spear.
So please, pray for God to continue to raise them up.
And in fact, if you’re a young person out there listening day and you’re thinking, “Wow, I’d love to do what Kelly Shackelford is doing!”
If you’re interested in that arena going that direction. I want to really encourage you to come to Patriots Academy.
Supreme Court Victories and More at WallBuilders Live
Visit PatriotsAcademy.com today. There’s just a few slots left. This summer it’ll take place July 28 through August 3rd at the Texas capital, that’s our national academy. If you’re interested in attending, if you’re interested in this arena, it’s a great place for you to get your start.
16 to 25 is the typical age of someone that comes to Patriots Academy, but we also have a military Patriots Academy, so any age, if you’ve served in any branch of the military, we’d love to give you an opportunity to experience the system that you fought for, that you were willing to die for, this Republican Form of Government that we have. You get to come to Patrick Academy and serve as a Senator throughout the week passing legislation, or killing legislation if it’s bad legislation.
It’s an opportunity for you to experience that Patriot Academy dot.com. Check it out. It would be a great way for you to get involved and start that path, especially the young people, out there towards something like what Kelly Shackelford does at First Liberty, and also be able to make the contacts and the network that you need to enter into that arena.
Thanks so much for listening today folks.
Celebrate this. Thank the Lord for the victories that we have. Tomorrow we’ll get David and Tim’s commentary on these great cases, so be sure and listen tomorrow. You’ve been listening to WallBuilders Live.