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Kelly Shackelford heads First Liberty Institute, a Texas-based nonprofit dedicated to defending religious liberty. First Liberty has aided the American Legion in its fight to keep in place the Peace Cross, which stands 40 feet tall on state-owned land in Bladensburg, Md. The Supreme Court will be issuing an opinion on that case sometime in June. Here are edited segments of our Q&A in front of students at Patrick Henry College.
Before we get to the main event, the Bladensburg cross case, I can’t resist asking about a couple of odd cases. Tell us about the Charlie Brown Christmas censorship at a senior living center. A couple of elderly women who live in a government-run senior living facility had some kids come through. This facility is their home. One of them starts to read A Charlie Brown Christmas. Some official realizes that would eventually get to Linus mentioning Scripture, so he shuts down the event.
Just a one-time extreme reaction, or is this becoming common? We’re getting a lot of cases where senior citizens want to use their common room for a Bible study. One retired minister, 80 years old, asked permission to use the common room. The reaction: “Not if you are going to use it for religious reasons.” He thought, “A lot of these people can’t go out. I’ll just hold a Bible study in my apartment.” He received a letter saying he would be evicted if he does that.
And the case of the postage stamp? On the internet you can pay to turn a photo into a stamp to put on an envelope. One person had a family picture taken in front of Moscow’s famous St. Basil’s Cathedral. He was told he couldn’t use that picture because it shows a religious building. We are going after this regulation because it’s clearly unconstitutional—the kind of nonsense we see sometimes from people who think religion is not allowed in public in the United States.
‘Let’s go back to the Constitution. If a religious symbol is not establishing a national church, if the government isn’t coercing people regarding their religion, then it’s OK to have religious symbols through our landscape.’
That case impressed me because I went in St. Basil’s when the Soviet Union was still around and the Communist authorities had turned it into a museum of atheism. A photo then would have been OK. But let’s move on: Please tell us about the Bladensburg cross. It’s a memorial put up almost 100 years ago partly by mothers who lost their sons in World War I. At the bottom of the Bladensburg cross are the names of local men who died. One cool fact: Despite the segregated units back then, and the Ku Klux Klan about to march on D.C. with 30,000 people, the memorial has black and white soldiers listed in alphabetical order with no delineation.
The American Humanist Association doesn’t want it on state land. During the appeals court oral argument, one of the judges said, “Why don’t we just cut the arm off the cross because that way, we won’t have to destroy it and it won’t offend anybody?” This was the mindset we were dealing with as the appeals court said 2-1 it’s unconstitutional. So we’re off to the Supreme Court.
If the high court decides against you … Not only this memorial will go down. They’d have to take down large free-standing crosses in Arlington National Cemetery. They would have to go into every community that has religious symbols.
Are you hoping the court will restore the “compelling interest” test regarding religious liberty? The normal approach in fundamental rights, whether speech or religion, had always been that if the government burdens your religion, the burden of proof shifts to the government. It has to show a compelling governmental interest requires it to burden your religion, and that the burden is the least restrictive means possible to meet that interest. It’s a heavy burden because we so treasure religious freedom. The Employment Division v. Smith case in 1990 threw out the “compelling interest” test and said any law or government action not specifically aimed at religion is neutral, unless you can prove something very special is at stake. The government no longer has the burden.
Could this case also affect the Lemon Test and the “offended observer” approach? It is a lemon of a test for sure. It’s also called the endorsement test: If a passerby were to walk through your community and look up and see a religious symbol, and if that person felt like an outsider, that’s a violation of the Establishment Clause. We said to the court: Let’s go back to the Constitution. If a religious symbol is not establishing a national church, if the government isn’t coercing people regarding their religion, then it’s OK to have religious symbols through our landscape. We’ve got religious and secular symbols everywhere you go because we’re religious people with a religious heritage.
What’s your prediction? At the oral arguments it was clear that the five conservative justices will not favor tearing down the memorial, so you began to see Justice Stephen Breyer saying, “How about we keep all the ones that are already up but we don’t allow any new ones?” That’s problematic because the 9/11 Memorial would have never been allowed to come into existence. Plus, that would be discriminatory against minority religions because let’s say the city of Pittsburgh wanted to put up a Star of David at the site of the synagogue shooting there.
So if Breyer and maybe another justice join the majority, it’s likely to be a narrow decision? If this decision is 7-2, it’s probably not a very significant decision. If it’s 5-4, it will likely be more significant in cleaning up the complete chaos that exists right now. If I were a justice on the Supreme Court, and I had to figure out whether a Nativity scene is OK based upon whether Rudolph the Red-Nosed Reindeer is within 5 feet of it, I’d be embarrassed. So I think the court is ready to clean this up and stop a lot of crazy attacks that are going on around the country against the 9/11 Memorial, against veterans memorials.
But hasn’t the court already had many chances to clean it up? As with pornography, the Supremes have had opportunities but have left it muddled. I’m optimistic because several justices have written that the religious liberty issue is in hopeless disarray. They said during the oral argument that this is a mess. The only issue to me is they’re not sure what the new solution is, but they’ve got to move away from the Lemon Test because if you’re a lower court judge you need a guideline, or else a local official might just shut down all the religious stuff. That creates a government hostile to religion, which is never what the Founders wanted.
Are we seeing a new problem as Google, Facebook, and Twitter act in religiously discriminatory ways? They currently have protection that doesn’t make them responsible for what people post or tweet. If they want the freedom to ban people because they’re conservative or religious, then that protection should be taken away. We need to be careful that all our information isn’t being funneled through a couple of companies: While we don’t want government regulation of private groups, we do want to make sure that people aren’t censoring by algorithm. If they don’t police themselves properly, I think the government will end up coming in.
—For Shackelford’s thoughts on several other issues, please go to wng.org/shackelford_extra