Victory For Religious Liberty At The Supreme Court With Mat Staver – Religious liberty is coming under attack more and more. A Bostonian case just won a huge victory at the Supreme Court. The victory is not only felt in Boston but around the Country. Truth will always win! Mat Staver from Liberty Counsel joins us today to discuss the victory and more!
Air Date: 05/16/2022
Guest: Mat Staver
On-air Personalities: David Barton, Rick Green, and Tim Barton
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Welcome to the intersection of faith and the culture. It’s WallBuilders Live. Thanks so much for joining us today. You are listening to a place that always takes the perspective of biblical historical and constitutional ideas. In other words, whatever the issue is, whatever the topic is, we’re going to say, hey, what’s the Bible say about this? How can we learn from God’s word from his instruction manual for life that’s given to us by the Creator, right? Whoever the creator of the vehicle or the gadget is, they know how it works. Well, the Creator of mankind, He knows how we work, folks, He knows how our brains work, our bodies work, our relationships, how society should work. And so we must go to His Word to get the best instruction, not only for our individual lives, but for our communities, and our nation.
So that biblical perspective is vital. Then that historical perspective you can learn from when other people tried certain principles or got certain results. History is a great teacher for us. And then a constitutional perspective, in America, of course, we live under the United States Constitution, we need to know how it works and we need to know what our responsibility is as citizens in that constitutional republic we’ve been blessed to live in. So that’s our kind of stick here, and in WallBuilders Live a biblical, historical and constitutional perspective.
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Real quick, before we jump in today’s program, I want to encourage you to check out patriotacademy.com today, and consider coming to one of our youth programs. If you’ve got a kiddo between 16 and 25 years old, all across the nation, we’re going to be in state capitals, our first one is in Colorado the first week of June. And then throughout June and July, we go to Arizona, in Idaho, in Delaware in Florida. And I just want to encourage our WallBuilders Live listeners to send young people to us. In fact, today I want to offer a $100 scholarship to the first 10 applicants to a regional Patriot Academy this summer that we call them Leadership Congress; $100 scholarship for the first 10 that will email Abigail@patriotacademy.com, Abigail@patriotacademy.com. You can get your scholarship and attend one of those regionals across the country. Hope that you’ll join us this summer.
Alright, guys, we’ve got our buddy, Mat Staver coming in a little later in the program. And that’s Mat from Liberty Counsel. For those that may not be familiar, Lc.org is the website. You can visit that site today and learn more about all the different cases. I mean, they got a ton of cases across the country, dealing with COVID crackdowns, dealing with religious liberty. I mean, they’ve been around a long time. But I think this is definitely the busiest they’ve ever been. And we’re thrilled to have them as friends. And Mat, of course, argued before the Supreme Court just had a big case and a big victory. So we’re going to talk to him a little bit about that. But David, you’ve known him since he was Dean of the Law School over at liberty, been working with him for a while.
Yeah, I have been and bless his heart. This last two years, I think he told us that he had litigation going on COVID in all 50 states. Now, I’m sure some of that’s been resolved. But nonetheless, I mean, try to handle 50 state and 50 state laws and 50 state Judges and getting prepped for 50 different approaches and courts, that’s got to be tough. And then we talked to him, I forget, I think he told us he had more than 10,000 phone calls that had come in with people wanting help on COVID and mandatory vaccinations and conscience and religious exemptions and military. I mean, he’s just been really, really busy. And he was always busy before COVID ever popped up. And then you throw another 10,000 phone calls, and however many cases he has. So he’s been super busy.
He’s always been really strong on religious liberty. That’s the really hard of it. And a lot of that deal with COVID as well and including government overreach cases. But he had this great case at the Supreme Court recently. And it was a religious liberty case, a free speech kind of case. And I texted him right after he did the oral arguments, and he was really favorable about the outcome. He thought it was going to be a good outcome, and it turned out to be.
But this is a really important year at the US Supreme Court. I mean, this year at the Supreme Court, I know of five potential landmark cases that could come down from the court. Obviously, the abortion case is one, but there’s for religious liberty cases at the court this year. And usually, you get one religious liberty case every four or five years, and there’s four at the court this year. I mean, this is amazing.
Not to mention some big Second Amendment cases. So thanks for people that care about the Bill of Rights, that constitution, basic kind of fundamental conservatism, there’s a lot of really, really big things. And what’s more important is not just because there’s really big things, because you have a majority of Justices who tend to lean toward the Constitution, you generally think that they’re not going to take these cases if they don’t think they can get a favorable outcome, meaning a pro-constitution, a pro Bill of Rights outcome, which is now even more fascinating that we could see some strides going forward to protect and defend some basic constitutional rights.
And this is certainly, dad, as you mentioned, with the Dobbs decision, the one dealing with the Roe versus Wade, it’s what led right now many Congress Democrat congress people to come start saying, hey, we need to expand the court because these Republican Supreme Court Justices are going to remove people’s rights. No, actually, they’re restoring constitutional rights. They’re just identifying that, for example, abortion is not an inalienable, inherent constitutional right that was fabricated out of whatever kind of atmosphere there was back in 1973.
Nonetheless, there is people now that are suggesting that the court should be expanded, which really wasn’t a serious conversation since FDR. And back then even FDR, his own party, recognized that’s a bad moving decision. But he was able to put enough pressure on the US Supreme Court to influence and impact some of their decisions. So it will be interesting to see as some of these decisions come out if there are really favorable rulings for religious liberty, for the Bill of Rights and the Second Amendment and restoring constitutional separation of powers, jurisdiction, whatever the case might be, to see how some of the extreme leftist liberals and Democrats respond, which probably will be for more and more cries to expand the court.
However, dad, as you identify this case, and Rick, you pointed out, this case with Mat Staver really exciting and encouraging what the US Supreme Court decided and not just what they decided, but the fashion in which they decided it was really interesting.
It’s going to be good, guys. We got Mat when we come back from the break, and of course, going to send people to the website, you can get all the details about not only this victory, but the other cases he’s involved in. Really encourage you to get on his list, lc.org. Stay with us, we’ll be right back on WallBuilders Live with Mat Staver.
Hey, guys, this is Tim Barton, I am interrupting the normal broadcast to bring you something pretty special. This summer, we are doing a special program for college aged students 18-25 year olds. And it’s something that is becoming more and more special based on where the climate is.
In the middle of a crazy culture, in the middle of a nation going in crazy directions and right now we’re seeing in academia where even Christian universities are promoting critical race theory, teaching the 1619 project, we want to do something to help equip young people the next generation, to know the truth, the truth of the Word of God, the truth of America, the truth of the Constitution, the Bill of Rights, the free market, we want to get into a lot of this. And this is something that if you are an 18-25 year old, or if you are a parent or grandparent, if you have an 18 or 25 year old, if you’re in church, you know 18-25 year olds, this program is something that can be life-changing for them, you want them to be a part. Go to wallbuilders.com and look for the summer institute to be part of this program.
Welcome back to WallBuilders Live. Thanks for staying with us. Always great to have Mat Staver from Liberty Counsel, so thankful for what they do at Liberty Counsel. I mean, they are on the front lines all over the place leading the way as well. Mat, God bless you, man. Thanks for all you all are doing. I enjoy your emails every time I get them. I love being caught up on all the cases you got. You got some big, big cases going right now and just your willingness to take on the fight in areas that, frankly, a lot of people weren’t willing to do. I just love you, brother. Thank you for what you do.
Well, thank you. Certainly, we just follow the Lord’s direction. And we don’t put our finger up in the wind to see which way the winds blowing or even which way our donors are wanting to go. We’re wanting to follow the truth. And we seek the Lord with regards to that. And that certainly has been the case with all of these COVID mandates, whether they began in 2020 on churches or these other vaccine so-called mandates. We’ve been litigating them, sometimes they’ve been unpopular at first, but people have ultimately decided as they’ve looked at the situation that you know what, we’re right.
Yeah. Amen. No doubt about it, and just a stellar job of doing exactly that. And speaking of donors, by the way, I mean, it’s the car that move without fuel in the tank and it takes that. And so thankful for all the folks out there across the country that donate, but consider doing that again today. Lc.org is the website. Lc.org. Mat and his team are quite literally all over the nation fighting these battles and that takes fuel on the tank. So appreciate your support. Mat, great victory at the Supreme Court. We had John months ago about this particular case. But some of our listeners are new. So remind us about this Christian flag case out in Boston and why you guys had to litigate to get basically equal footing for folks that wanted to flag Christian flag when everybody else was allowed to fly their flag.
Well, it goes back to 2017 with Harold Shurtleff was the founder of Camp Constitution, he wanted to celebrate Constitution Day, which is annually September 17th and he wanted to do it in the cradle of liberty where he was a resident. And he applied, there had been for 12 years of not only a practice unbroken history, but also an express policy that said that one of the flagpoles including the City Hall Plaza was a “public forum open to ‘all applicants’”. That’s the city’s words that was specifically stated in their policy.
And for 12 years, they did not deny a single application to an ad for applications for private flag raisings to coincide with different private events. These were temporarily raised on the flagpole. During that event, not a single denial, though review to speak up. Then Camp Constitution’s application said that along with having the event with people in costume at the base of the flag to celebrate and acknowledge our Judeo-Christian heritage and history in Boston, the Commonwealth and the founders. They wanted to temporarily raise the Christian flag only about an hour event, then it would be done.
The problem was not the flag. He got denied. And the denial said it was because you refer to it as Christian in the application. It was one word ‘Christian’ in the application that cause that denial. In fact, they said, if you call it anything, but Christian, call it Camp Constitution flag, just don’t call it Christian, then we would grant the approval. So in other words, if you deny that it has a Christian component or perspective, then it’s okay. The same symbol can fly. But if you think that or say that it has a Christian perspective of viewpoint, it’s banned from this public forum.
We thought it’d be a no-brainer case, we send a demand letter, they dug their heels in. We litigated it. We lost twice at the lower court, lost twice at the court of appeals, very crazy that we would lose. We just couldn’t understand how these judges can be so far off. And now we got a 9-0 victory at the United States Supreme Court. The real issue about this is it’s much bigger than a flag. It certainly involved that as the facts. But what it really involves is Christian viewpoints cannot be censored under the Constitution from the marketplace of ideas, from these public fora across the country.
I have to just pause on where this is taking place. I mean, this is Boston. I was just there Thursday and Friday, walking in the footsteps of the founding fathers, walking where the Boston Massacre took place, went into Old South Meeting House where Dr. Warren gives that great address on the anniversary of the Boston Massacre and countries not to be despaired of, we’re in danger, but not to be despaired. I mean, this is a place where America began. And the fact that you wouldn’t be able to have freedom of speech and freedom of expression and fly these flags in Boston, it’s kind of like not being able to carry my gun in Massachusetts, I’m thinking wait, this is Lexington and Concord and I don’t have reciprocity where I can carry… It’s just I can’t believe the places where it all began are where this kind of nonsense happens.
And I have to say also, same with you, I was shocked when the losses at the local level, usually you do this all the time. Usually, when the precedent of the law is so clear, and the Constitution is so clear, you guys send a demand letter and they may not want to, but they go talk to their lawyers and they go yeah, we’re going to lose this and they’ll back off. But in this case, they fought it all the way in Supreme Court. Well, what they mean for evil, God turns into good, 9-0. Mat, have you ever had a 9-0 before?
No, in fact, they’re very rare for any case, let alone one that would otherwise be sort of controversial, so to speak, of religious speech or religious symbol case. Usually, it gets split opinions on that. So this was 9-0. The next day, the Boston Herald, this was very interesting, on the very front page, took up three quarters of the entire page. The big bold, all capital letter said “Supreme Spanking”, and then superimposed over the Supreme Court was the Christian flag.
So exactly what you said, what Satan meant for evil is turned around for good, God turned around for good. So instead of having a few passersby see a Christian flag for an hour back in September 2017, now it’s all over the country, and frankly, it’s all over the world, the Christian flag and the fact that you can’t censor Christian viewpoints. The great thing is that there’s no dissenters. If there had been dissenters, the liberal media would have focused on them and they would have quoted them, they would have gotten all the press. But there’s no dissenters. There’s no shadow in which some of these dissenters and these naysayers that don’t want religious viewpoints in the public marketplace can take solace and because not a single Justice of the United States Supreme Court agreed that censorship is permissible of religious viewpoints.
I mean, you can’t go up from there. That’s like a complete victory, complete victory. What do you expect? I just asked you on a personal level, after the arguments, after the questions from the court, what was your expectation of how it would go?
Well, amazingly, I rarely predict anything from the Supreme Court because you just never know which way it’s going, notwithstanding their comments during arguments. But after that argument, I came out I first thing I told some of our staff as they were waiting outside the Supreme Court is we won this case. I think we wanted to big time. But I actually said, I think we possibly have an opportunity to win 9-0.
Did you really?
I even put that in print. Yeah, I said, now, that’s a step. But I think we certainly win super, super majority. But we could possibly win 9-0. One of the things I didn’t envision is that Justice Breyer would be the one to write the 9-0 decision. I never thought he get a decision written by him in favor of our case, with regards to religious free speech, or religious symbols. But here we go. And this really goes back to decades of legal strategy and building this house one brick at a time. That began in the 1990s when we began to focus on religious speech, when the Free Exercise Clause was dinged in 1990 by the Supreme Court. And some of those cases that have been built one brick at a time were cited in the Shurtleff v. City of Boston.
So it’s a great victory. It probably would not have happened in the early 1990s where it would have gone the other way. So I think that is a good sign to show the changing of the guard. And in fact, Justice Gorsuch in his concurring opinion, he said not a single Justice raises the Lemon test in defense. He said that was written back in 1971. That was a bygone era, he says, where the Justices were more freewheeling and not consistent with the original understanding of the Constitution. That’s a bygone era. He said, we’re past that and we’re moving on to more consistency with the Constitution. So that’s a good sign.
The Lemon test is this terrible decision from the Supreme Court in 1971 that had been used to censor religious speech and religious symbols and they would bring it out as a shorthand to censor. Not a single Justice relied upon it. The lower court Judges did, the city did. But you know what, complete rejection of that by nine justices of the United States Supreme Court.
Wow! So I mean, it could be a new error that, maybe the “courtstitution” is finally getting replaced with the Constitution. Even Alito’s leaked majority opinion, so much in there about the same kind of thing you actually returning to the Constitution, and that has to give you hope for this new era as well.
Well, it does. In fact, when I read it that morning, this decision came down at 10:05 and I began reading it and I came to that particular decision and that concurrence by Justice Gorsuch, and I thought before the leaked opinion came out, because it came out the same day in the evening, when it was published in Politico. And I asked the question to some of our staff, I said, I wonder if this is a good portent of the Dobbs abortion decision. Because what else was in the 1970s? Not just Lemon V. Kurtzman 71, 73 was the Supreme Court Roe v. Wade decision. And so is he forecasting something that may be coming down the pipe? And sure enough, look what we got, a draft opinion that soundly rejects that era of judicial activism, and particularly the abortion decision.
Yeah. Before I let you go Mat, kind of thinking ahead to other religious liberty areas, do you think this will mean then an expansion of religious liberty and a push back on some of that hostility that’s been out there, whether it’s student papers on religious topics in schools or wearing religious jewelry at work and government offices, I mean, all those types of things that we’ve had to fight over the last few years, do you think we’ll see changes there as well that this case will be cited for?
Yeah, I think we will. I think this is just a continual building of this structure back, the constitutional structure that should have never been dismantled. And the court did that in massive bulldozer faction back in the 50s, 60s, and particularly the 70s. So that, I think, is a changing of the pendulum, changing of the guards. And I think it is a good portent of things to come. So there’s a lot of other cases out there.
I think this is a good one. I think we’re going to ultimately see a victory in the Coach Kennedy case. Interestingly, the Supreme Court decided to take that case on the Friday before the Tuesday that I argued it the following week. And I think the reason why they did is they were looking at our briefs. And the same kind of issue takes place in the Coach Kennedy prayer case. They said, oh, well, now you can’t pray after the game. That’s not your private speech. That’s government speech. So we’re going to censor you because we believe you’re thinking silently to God if you think silently to some general secular idea or concept, it’s okay. Just don’t have God in your mind. And I think it’s the same principle that we have here in the Shurtleff’s case.
Oh, wow! Well, and I bet you’ve got cases at the lower court level and appellate court level coming down the pike as well, that this would make impact as well. So we’re looking forward to quite a few interviews with you in the coming months and years with victories. Just excited about this. This was 9-0, Mat, let’s just celebrate for a minute, I’m telling you. Just incredible! Good stuff, brother. God bless you. Thanks for Liberty Counsel. Thanks for what you all continue to do. Again, Lc.org, folks, donate, go get it on the email list. Believe me, you will get an education, really good stuff from Mat on a regular basis. So make sure you’re on their list. Appreciate your time, brother. Thanks for coming back on WallBuilders Live.
Thanks. God bless. My pleasure.
Stay with us, folks. We’ll be right back with David and Tim Barton.
Hi, friends, this is Tim Barton of WallBuilders. This is a time when most Americans don’t know much about American history or even heroes of the faith. And I know oftentimes we, parents, we’re trying to find good content for our kids to read.
And if you remember back to the Bible, to the book of Hebrews, it has the faith Hall of Fame where they outline the leaders of faith that had gone before them. Well, this is something that as Americans, we really want to go back and outline some of these heroes, not just of American history, but heroes of Christianity in our faith as well.
I want to let you know about some biographical sketches we have available on our website. One is called The Courageous Leaders collection. And this collection includes people like Abigail Adams, Abraham Lincoln, Francis Scott Key, George Washington Carver, Susanna Wesley, even the Wright brothers. And there’s a second collection called Heroes of History. In this collection, you’ll read about people like Benjamin Franklin or Christopher Columbus, Daniel Boone, George Washington, Harriet Tubman; friends, the list goes on and on. This is a great collection for your young person to have and read and it’s a providential view of American and Christian history. This is available at www.wallbuilders.com. That’s www.wallbuilders.com.
Welcome back to WallBuilders. Thanks for staying with us. And thanks to Mat Staver for joining us as well. One more time, that website is lc.org. David and Tim, course, Matt, of course, talking about the case itself and the victory there, but also just the direction the courts going, just a lot of good news for today.
Yeah. And man, when I heard that report, I think the biggest good news I heard was that Breyer is the one who wrote the decision, and that it was a 9-0 decision and that in that decision, Breyer talked about that this is no longer the freewheeling days of the court from previous generation. I mean, even he is a liberal, acknowledge that what they did back in the 60s and 70s was freewheeling, and we don’t do that anymore. And then the fact that the Lemon test was not mentioned a single time, I cannot tell you how many literally, hundreds, if not thousands of court cases have used Lemon test. So let me give a little context on how big an earth shattering decision this is.
The Lemon test came in 1971. And back in 1962, 1963 is the first time the Supreme Court started stopping traditional religious expressions and saying you can’t do that. We’ve had prayer in schools for 340 years under the Constitution for 175 years. But we’re stopping now. And the Court said that it had neither historical nor legal precedent for stopping school prayer and Bible reading, but it did. That’s a freewheeling days. Here’s what we’re going to do.
The same with abortion, all these issues that were freewheeling, well, because the court started dumping traditional religious activities with no basis at all, you start having everything being sued against; any kind of religious activity at all, you get sued. And it gets so bad that the court in 1970, just eight years later said, look, we’ve got to come up with a standard for how you know whether are the religious activities constitutional right. And that was the case, Lemon V. Kurtzman, and they came out with what they called a three prong test, and Lemon V. Kurtzman now known as Lemon test. And the fact that is not cited by any the Justice, this is huge. But here’s what the court said.
In 1970, they said, if you want to know whether your religious activity is constitutional or not, the number one purpose of your religious activity has to be a secular purpose. Well, that’s crazy. How can the number one purpose of prayer anything else be secular? It’s not. But that was the new test. The second thing, they said that we have to determine whether the primary effect is to advance or inhibit religion. If praying to schools would advance religion, then we can’t do that. Or if having a religious display would advance religion like an [inaudible 24:08], can’t do that. And the third prong was we can’t have anything that creates an excessive government entanglement. In other words, if government gets involved in it, that makes it unconstitutional.
So those are the three tests and under those three tests, you can’t win hardly anything. And for that test to be gone, you’re going to see religious liberty start being restored now that we have not seen for decades literally.
And to that point, as you’re saying that you can’t win anything that Lemon test. Obviously, dealing with religious liberty, and you alluded to this, this is one of the things that the US Supreme Court and many lower courts have pointed to as the reason that basic things could not happen, whether it be religious displays in public libraries or students at graduation. And certainly, they had other arguments as well. But the Lemon case is one that’s been referred to for a long time.
And this is something we’ve talked about before. One of the decisions that we’re very excited to see it come down and excited and in a very prayerful way and we’ve said several times before, make sure you guys are praying for some of these decisions that will be coming out. But the Coach Kennedy case, from First Liberty where when this initially went before the US Supreme Court and they said, we’re sending this to a lower court because there were some issues they need to resolve. But if this makes it back to us, make sure you guys, when you come back, let’s talk about the Lemon case, the Lemon test next time if this comes back again. Because the US Supreme Court at that point identified that there was at least enough justice there that knew this Lemon test was a faulty flawed mechanism for measuring if something was constitutional or not.
So, dad, to your point, when you have a secular leftist, liberal justice, writing a decision and not referencing what has been a tool of the Left for literally decades to attack religion, meant could signify a pretty significant shift coming from the courts.
Hey, guys, just put a fine point on just a victory itself. Everything you’ve been describing about the Lemon test, in our biblical citizenship courses and constitution courses a lot of our listeners have been through, we talk about the “courtstitution”, and that’s decisions like we even talk about the Lemon test and how it’s these crazy court decisions that you have to try to figure out what’s legal, what’s not legal. What this case does, again, is restores the Constitution and overrules those “courtstitution” ideas. Little by little we’re getting there, folks, good victories happening right now. Thanks for listening today. You’ve been listening to WallBuilders Live.