From the Soviet Union to Communist China, one of the first things many authoritarian regimes do is extinguish religious freedom.
There is a deeper reason for this, says Kelly Shackelford. And that’s why increasing government restrictions on religion in America are troubling indicators for the future, he argues.
Shackelford is the President and Chief Counsel of First Liberty Institute, America’s largest legal firm focused exclusively on safeguarding religious freedom.
This is American Thought Leaders 🇺🇸, and I’m Jan Jekielek.
Jan Jekielek: Kelly Shackleford, it’s such a pleasure to have you back on American Thought Leaders.
Kelly Shackelford: It’s great to be back.
Mr. Jekielek: Kelly, I want to start by talking about some of these recent Supreme Court decisions, specifically around religious freedom in the time of Coronavirus, or CCP virus, as we call it at the Epoch Times, I know this is something you’ve been following very closely. And actually, you’re in the middle of a case that is at the Supreme Court as well. Tell me, what does this mean for the Supreme Court and for religious liberty, what you’ve seen over the last few weeks?
Mr. Shackelford: I’ve been doing this kind of law for 31 years. And so when we saw this occur, we immediately stopped everything and re-evaluated what we thought was coming during the pandemic. At the beginning, we knew people would want to cooperate and churches would cooperate, and in fact, also many of the houses of worship or places where people get food and get served when there’s a crisis.
But we knew that with this new power, there would be governors, mayors, and people that would love this new power and would start to abuse it. And so we waited for the right cases. We’ve had ten different cases now during the pandemic on behalf of churches—we want every one of them.
But what we’ve been seeing happen around the country has been very disturbing. And that is that a lot of other lawsuits being filed have been losing, and then the Supreme Court has been failing to step in.
We’re literally in the middle of a battle about whether the government controls our houses of worship, which I think to most Americans would be a shocking thought. But that’s what we’re in a discussion about, because in state after state with some of these abusive leaders, they’re clearly treating churches, synagogues, houses of worship differently than similarly situated secular activities.
So, for instance, take our case involving religious schools in Kentucky. Our particular school, Danville Christian School, has 12 to 15 children in these classrooms. They’re socially distanced. They use every precaution imaginable. Everybody’s seen the CDC data that says children are the safest from the virus. And yet, they are being shut down. I mean, all the religious schools across the state being banned, while at the same time, it’s okay to have 3000 people at the Kentucky basketball game. It’s okay to have strip clubs open, to have gambling parlors open, and to go into a movie theater.
Just think about a 12-year-old child. Let’s say a parent wants their 12-year-old child to go to their religious school to learn the religious teaching and values. These are our most fundamental rights—the idea of a parent inculcating the values, the beliefs, the faith of their family to their children. That is sacrosanct. These are our most fundamental rights in the First Amendment. So those that have to be protected. But you know what? The strip club is not so protected. The bowling alley is open and is not so protected.
And the idea that you close the one that’s really even safer? Dr. Fauci himself just said, “Close the bars, open the schools.” So there’s no data, there’s no science, and yet they’re shutting them down. They’re doing the same thing to churches and synagogues. Of course, the New York decision that just came down from the Supreme Court—very significant, because finally, the court stepped in and said, “Okay, this has gotten out of control.”
Of course, that’s in part because Amy Coney Barrett is a new Justice on the court. And that now leads to five Justices who really understand the need to protect the First Amendment. I mean, I understand judges wanting to be deferential to government officials to some extent. But we’re at a point now where if they don’t stand up for the people, the people have no freedoms, because it’s the court’s job to protect and to speak for the Constitution. And if they don’t, nobody will.
And you have officials across the country with unfettered power—with the Constitution, as Justice Gorsuch said, “on vacation.” That’s not how this country is supposed to work. So that was a really important decision that said, “No, the Constitution is not on vacation. The First Amendment applies and is alive and well.”
I think that’s just the beginning. We saw California just a few days later, a church out of California that went up. They sent that back down. They said we’re going to vacate this decision below. Why don’t you redo this, now that we have the New York opinion? And then of course, our case out of Kentucky. So I think we’re going to see some change. I hope we’re going to see some change.
This battle is really important because this pandemic is going to end. When it’s over, what is it going to be the rule of law? Is it going to be that the government can control the houses of worship if they declare an emergency? Because climate change will be an emergency. I mean, you can come up with lots of emergencies.
That’s not what our system was supposed to be. These are fundamental rights. If the government infringes upon those, it has the burden under the law to prove that it absolutely had no choice but to burden them, and it’s doing so in the least restrictive means. You can’t say that when the movie theaters open, the bowling alleys open, the strip clubs open, there’s basketball games with 3000 people. But yet, you won’t let the little Christian school with 12 kids in their classroom meet. That’s irrational, it’s discriminatory, and it violates our most fundamental rights.
Mr. Jekielek: So explain to me in layman’s terms and for the benefit of our audience as well. What is the significance of the California decision? People are quite familiar with the decision about New York. It’s very clear cut. What about California?
Mr. Shackelford: What happened in California is that you had the same kind of abusive things in California that were happening in New York. But those cases were working their way up through the Court of Appeals—they’re shuttering the churches, they’re saying you can’t meet, you can’t have your worship. Meanwhile, other things are open across the state of California.
And, of course, people are getting on airplanes and sitting right next to each other. But yet you can’t sit socially distanced at your church or your synagogue. So what’s going on has been troubling. But what happened in California is they didn’t have the benefit of those decisions below where the judge and the District Court said, “Yes, I will support the mayor’s order shutting down the houses of worship.”
Well, the Brooklyn decision, the case out of New York, had not come down yet. So when it got up to the Supreme Court, they said, “Well, there’s no reason for us to rule on this because they haven’t had a chance to look at it in light of our decision.” And so that’s what they did. But they wouldn’t do that, usually, unless they’re somewhat sending a signal that something has changed. And you might really want to relook at your decision saying that it’s okay to shutter the churches and synagogues and houses of worship. So it really is a signal that things are changing.
And the problem with a lot of this is—and people don’t understand this is typically—the Supreme Court looks at these emergency motions with heavy disfavor. It’s maybe one out of 1000 times that they issue a positive ruling. The reason for this is the Supreme Court is used to getting a lot of time and a lot of briefing and full argument—briefs filed with 50 to 60 pages from each side, another 30 page brief for reply, numerous outside groups filing briefs, all making all the arguments you could possibly think of.
The justices get a chance to look through all that with their staff, with the brilliant lawyers who work underneath the justices. They get to have an oral argument where they get to tease this out and really ask tough questions. Then they get to start writing opinions. That takes them months and months to finish the decision.
So for them to take these weighty issues really quickly and have to issue decisions—they don’t like that. And so it’s more difficult to get them to do that. They only do it in something that they feel is really a very severe emergency. That’s why the Brooklyn decision, the New York decision was significant, because they saw that this is dangerous.
Right before that, Justice Alito had spoken at the Federalist Society, and expressed alarm, and said that if we don’t do something soon, religious freedom is going to be a second class right in the United States of America. I think the mood around the country was realizing the danger of what was happening. So the decision was a good turn in New York. That was reaffirmed a little bit by what happened in California.
And now we’ve got to go to other areas, like our case involving religious schools. Because houses of worship are right at the center, right? If you’re telling people they can’t meet for worship, how much more extreme do you get from that? Well, probably the next step is telling people they can’t put their children in religious schools. We’re going to have to tease these issues out and find out whether these really are fundamental rights that our country is built upon, or whether they’re going to be watered down for the future and for our children and our grandchildren.
It’s really interesting that earlier you said when you were seeing this whole COVID CCP virus situation unfold, you were already thinking to yourself there’s people that are going to try to take advantage of it to grab power. I didn’t want to put words in your mouth, but something in this vein. Now so, you have a bird’s eye view of 31 years of having worked on this stuff. Why is that so obvious? What do you think people are seeking in these situations? Why would a strip club be okay? And a house of worship, not okay? How does that work exactly?
Well, typically, in the cases we have, we have all kinds of religious liberty cases. There’s a couple of different motivations from people who act in a way when the government acts in a way to restrict people’s religious freedom. Sometimes it’s hostility. They’re anti- religious. And they do so for obvious reasons, they shut things down because they’re against [religion.]
A lot of times though, they don’t understand, and they don’t have the respect for religious freedom. They don’t understand that it’s our first freedom. It’s a part of why this country was formed. And if you lose it, you’ll lose all your freedoms—all your other freedoms. A lot of people have never thought through that even if they’re not religious, they should treasure religious freedom.
Because if the government can take away your religious freedom, it can shut down your free speech, your political freedom, your economic freedom, and everything else. So most people just don’t understand that. If you watch what’s happening with the governors, even the ones that we give every benefit of the doubt, what they’re doing is just incredibly foolish.
Because they think that churches and religious groups are not “essential.” They see the strip club and the liquor store as more “essential” than the synagogue and the church and the houses of worship. It’s just a very bizarre, but wrong view, as far as the United States of America [is run].
The most important things aren’t just the things you can touch. The church deals with things, it’s not just the material world that is the most important. That’s the thinking we’re dealing with here with these governors.
If you ask, what is America really about? What are the most important things? They wouldn’t tell you it was the money, it was the goods, it was the material things. They would say, it’s about freedom, and liberty, and things that are intangible. Those are the things that the church teaches. Those are the things that you get when you go to your house of worship. Those are the things people need in the middle of a pandemic. With the suicide rates that are going through the roof and all the things that people are going through, you’ve never had churches more needed than you do right now. But governors don’t understand that.
It’s like the cities we have to fight around the country who want to close the church or don’t like that the church is not being taxed. They don’t understand that that church is going to save them so much money by the lives that are changed, the crime that goes down, the children who are taken care of by families. There’s just so much positive. There have been all kinds of studies on the economic benefit, but they don’t understand that. That’s a lot of what we see; we’ve seen both of those.
The example would be New York. Clearly, there is an antagonism there against Orthodox Jews. We’ve had very overt statements by the mayor and by the governor that really made it clear that these regulations shutting down houses of worship were in part focused on going after Orthodox Jews. And so that was a hostility.
The reason they were being discriminated against and treated differently than other secular activities is partly because of their [the government leaders’] anger and their hatred for a group of people.
But there are a lot of people and other governors who just think that churches or religious groups are non-essential—while the liquor store and the bowling alley and in Kentucky in our case, the strip club, the racetracks, the Kentucky basketball game—those are essential. That’s somebody who doesn’t understand the United States of America and the United States Constitution.
Mr. Jekielek: I’ve got two things now that are on top of my mind—this question about targeting the Orthodox Jewish population in New York, something I’ve been following closely. You know, I have a brother-in-law that is actually Lubavitcher. What makes it so clear to you that there’s hostility and targeting and it’s not just the other option that you described in this instance? I’m very curious.
Mr. Shackelford: Well, there were specific statements, for instance, by Mayor de Blasio, specifically going after Orthodox Jews and saying that they were going to shut down their synagogues permanently and Tweets. He tried to roll those back, pull those back afterwards, but there were specific statements on that.
We’ve got cases in New York that are just unbelievable. We have a case in Airmont, New York, where in the former lawsuit before our current lawsuit, the Justice Department had to get involved. The result of the lawsuit was that it was proven that this village was formed for the specific purpose of getting rid of Orthodox Jews. They came up with zoning regulations where people who would live a life like an Orthodox Jew—like having synagogue, and where you can walk on the Sabbath—couldn’t live in the area. And so they won that lawsuit.
We’re having to redo it 30 years later. We’re now in the same kind of lawsuit, where they clearly discriminated in a way to try to push the Orthodox Jews out of the community. It got so bad, we actually sent this information to the Justice Department. Just last week, the Justice Department announced they’re filing a lawsuit, and they’ll be joining our side in this because the evidence is so strong of what’s been going on.
So there’s a history out there. Then we see recent statements by the mayor even specifically tied to these new orders and regulations that the Supreme Court has now struck down. I don’t think it takes a lot to see what’s going on there. There are people that definitely have those types of anti-religious motivations. They don’t like groups, they don’t understand. They have their own beliefs about that.
But it doesn’t really matter why people are doing it. The point is the government cannot restrict people’s religious freedom. The burden’s on the other side. Even if the government accidentally burdens your religion, the way our law works, these are the most fundamental rights we have. So we put this high burden of proof on the government.
Okay, if you’re going to burden their religion, you better have a compelling governmental reason that requires you to do that. You better be doing it in the least restrictive means possible. If you had a religious group that thought child sacrifice was great, then the government could come in and say, “We’ve got a law that says you can’t do that, and our interest is protecting children.” They could do that.
But you can’t come in and say, “Hey, we’ve got this virus that’s going around the country, and we want to shut you down. By the way, we don’t want to shut down all these other secular institutions.” And, you know, what you’re doing is really safe and you only do it for maybe an hour or two on a Sunday. But we’re going to allow the Home Depot to be open and people to walk up next to each other all day.
We’re going to allow the grocery stores, and we’re going to allow liquor stores because people need liquor in tough times. But evidently, they don’t need a spiritual life. It doesn’t matter if it’s intentional or not, the heavy burden is on them. And they can’t meet it in the way that they’re doing right now in a number of these states, where they’re literally discriminating and acting irrationally with how they’re treating churches and religious institutions.
The New York case is a good example of this. The Catholic Church there that was involved, in the diocese that was involved, there was one of the model citizens—how careful they were in wanting to protect their people. The idea that then you would tell them they can’t have more than 10 people at their mass at their church service was just completely unacceptable. It didn’t make any sense in light of everybody else who was allowed to be open. There were hundreds of secular uses that were very similar and that were okay. But the church and the synagogue were not.
Mr. Jekielek: The second thing that was on my mind is theoretical, and maybe it’s not obvious to everybody. Why do you say that if your religious freedom is violated, it opens the door for all these other violations, which was your contention earlier. How does that work, exactly?
Mr. Shackelford: The founders put religious freedom in our first two clauses of the First Amendment, and they called it our first freedom for a reason. That is they understood that if you lose religious freedom, you’ll lose all your freedom.
This is the best way I can describe why is that the one thing a totalitarian regime can never allow is for citizens to hold an allegiance to one higher than the government. So whenever that type of oppressive regime comes in, the first flashpoint is always going to be these people who won’t bow and kneel to the government. If you lose at that point, if you can’t worship your God, if you can’t talk about what happens after you die and how you live your life—do you really think they’re going to allow you to criticize the people running the government? It’s kind of obvious. It really is the first flashpoint.
I can’t tell how many people I’ve had come up to me from other countries who came to the United States after speeches or talks or whatever. I’m thinking of people from Czechoslovakia, Romania, a number of different places that have come up to me and said, “You know, I saw this happen in my country. I watched them take the religious symbols down. And a month, two months later, we all lost our political freedoms.”
A number of these people have literally handed me a check and said, “I’m going to be supporting you from now on. I’m not religious at all. But I understand what this means. I think that what you guys are doing is the most important thing anybody’s doing in the country.” There are a number of people sending in checks to support us to represent people free of charge, not because they’re even religious, they just want their freedom. They understand that if you lose religious freedom, you’ll lose it all.
Anybody who’s lived through the rise of communism, or other other totalitarian countries can tell you the main thing that these totalitarian states have to do first is to get rid of the church. They have to get rid of organized religion, because it is an authority structure that they don’t want to compete with, and that they can’t compete with.
If you look at the Soviet Union, Poland, look at look at any of these places, the first thing they do when they come in is they get rid of the religious leaders, they murder the religious leaders. If you look at history, and the people who are the dissidents, the ones who are standing up, the Aleksandr Solzhenitsyns and everybody else, these are religious people. They refuse to go along with lies, the propaganda of the state that says, “You will say this whether you believe it or not.”
These people who won’t [go along] tend to be heavily religious, because their first allegiance is to one higher than this government that’s doing evil. They can’t call evil good. There’s an intolerance for that in the government. It’s a natural battle—if religious freedom flourishes, this type of oppression can never live in that type of an atmosphere. The founders understood that, and that’s why they so wanted to ensure that we had religious freedom in the United States of America.
Mr. Jekielek: You mentioned Justice Amy Coney Barrett joining the Supreme Court, and the significance of that. Obviously, this is one of the significant developments of the Trump presidency and the Trump administration. I’m wondering if you could offer a roundup of what the impact of the Trump administration has been on this issue of religious liberty and religious freedom.
Mr. Shackelford: The Trump administration—again, I’ve been fighting in the field of religious freedom for 31 years. It’s been my entire career. We tried to go back through and just list all the accomplishments under this administration, and I had forgotten more things. When we did that, I realized I had forgotten more things that this administration had done pro-religious freedom than maybe all the other administration’s combined had ever done. It’s that dramatic.
It started with executive orders on religious freedom. Those were followed by the DOJ opening up a special division to protect religious freedom and to go into all the agencies and make sure that they had guidelines and understood the necessity of protecting religious freedom as federal departments and agencies.
It was followed by judges being appointed who had an originalist understanding, which meant they were going to go back to the words of the religion clauses instead of what people wanted or maybe what was politically correct or popular or some past decision that wasn’t tied to the Constitution at all. The Justice Department in all the major religious freedoms cases that have come to the Supreme Court, they file, they take a position. The government has always been on the side of religious freedom under this administration, which is really rare.
We’ve got some really positive rulings as a result of that—major precedent setting things. There’s so many of these things as I go through them. Just take day one, when this administration took over. There were about 100 lawsuits going on with religious entities because of the Obamacare law, like the Little Sisters of the Poor. They were being told you’re going to have to violate your faith and provide abortifacients for your employees. Well, this is a group of nuns. They’re not going to purchase abortion-causing drugs for the nuns.
But it wasn’t just the Little Sisters of the Poor. It was like our client, Insight for Living, one of the largest ministries in the country on the radio. There were over 100 of these lawsuits, they were all ongoing. As soon as the Trump administration came in, they said, “That’s over.” All those lawsuits ended. So that’s just one little thing, but you can go through [and see examples].
The Office of Management and Budget sent out a memo on Religious Freedom Day, which I thought was interesting. They sent out a memo saying that every federal agency that provides money to states, you are banned from doing so if the state is engaging in any religious discrimination against religious institutions. Well, 31 states have Blaine amendments that require them to discriminate somewhat. So that’s a very strong memo.
We could go on and on and on. There’s literally hundreds of things, some of which a new administration in the future would probably try to undo. Executive Orders are easy to undo. Some I don’t think you can undo. You certainly can’t undo over 230 judges appointed for life. And I can just say this, the best summary I can give people as a person who’s been doing religious freedom for so long, is the judges that are now in the Supreme Court, and the judges below, I’m watching the whole paradigm of religious freedom switch in a way that I didn’t think possible in my lifetime.
And I really do believe that within the next five years, maybe 10 years, every American alive is going to have more religious freedom than they’ve ever had. Because these justices are going back to the original founding documents, and our founders wanted religious freedom. And so our Bladensburg Cross case, was one of the first cases to show that shift. And we’re seeing the lower courts follow that and we’re watching religious freedom being opened up.
So if somebody were to ask me, how is religious freedom going? I’d say the short term is really full of conflict. I mean, it’s pretty ugly as we’re watching. But long term, I’ve never been more optimistic about where I think we’re going. And a lot of that is because of these great judges and justices who’ve been put on the court.
Mr. Jekielek: Tell me a bit about this Bladensburg Cross case that you’re describing as precedent setting.
Mr. Shackelford: The Bladensburg Cross is a cross that’s right outside of Washington, DC. It was put up almost 100 years ago by mothers who lost their sons in World War One, along with the American Legion. It was … to honor the 29 young men in Prince George’s County who died. It was originally on American Legion property, but because it was right outside of DC, they eventually built roads around it and the government took over the land.
When they did, they didn’t want to tear down a Veteran’s Memorial and so they left it there and respected it. Then wait a few more decades, and the American Humanist Association comes along and says, “Hey, wait, you can’t have a cross on government property. That’s a violation of separation of church and state and the Constitution.” Of course the constitution doesn’t say separation of church and state. It says you’re not to have a government establishment of religion, like the Church of England telling you that you have to support the Church of England.
But what happened was 50 years ago, in the Lemon case back in the late ’60s, early ’70s. They said, “No, the Establishment Clause means more than not establishing national religion. It means separation of church and state. It means that if you’re offended by religion, you can bring lawsuits. It means all these things that you can’t do in any other areas of law.” And that’s why most of our lives we’ve seen attacks on nativity scenes at Christmas or menorahs or ten commandments’ monuments.
You name the religious symbol, it comes under attack. Why? Because the founders thought there was a problem with religion in public? No, because they were following this Lemon decision. So then we got this Bladensburg Cross case. It went to the Court of Appeals, we won below. It said, “Don’t tear down this cross that would be outrageous.”On the Court of Appeals, one of the judges said, “Why don’t we just cut the arms off the cross that way, nobody would be offended. We won’t have to tear it down.”
So we realized at that point, we’ve got a problem. And sure enough, the decision came down two to one, after 100 years, this veterans memorial was unconstitutional. So we went to the Supreme Court. But instead of just saying, let’s defend this cross, we said the only reason we’re here is because of this Lemon case.
We’ve had 50 years of chaos, and wreckage and hostility to religion by the government, which was never the founders’ intention. And so we didn’t just ask the Supreme Court to uphold this memorial, which they did. We said “It’s time to get rid of Lemon.” And the decision was seven to two, upholding this memorial, this cross. It still stands. If you come to DC, I suggest you go to Bladensburg, Maryland to look at that wonderful Veterans Memorial.
But more importantly, five Justices said, we’re not following Lemon, that was a sea change. For 50 years, we’ve been going in this hostility to religion direction. We just turned; we’re now going in a totally different direction. And the lower court decisions are now all starting to follow and change.
That whole atmosphere of hostility to religion, which many of us have endured our whole lives, right? If you think of something religious in public, everybody kind of tenses up and goes, is that okay? Well, that’s not because of the Constitution. That’s because of this bad case. That has now been wiped away. Slowly, people are realizing it, and freedom is being really released. That is a huge shift in precedent that is going to take us in a much freer way in our country.
That’s just the beginning. With the Free Exercise Clause, the same kinds of things are happening. We’re seeing what I think long term will be really positive for religious freedom, because we have Justices who think their job is to look to the original meaning of the text. You’d think, “Well, don’t all judges do that?” No, they don’t! It’s been since the 1930’s that we’ve had five Justices, a majority, who think that’s their job.
Now that we’ve got a strong majority that think their job is to figure out, “What does the text say originally?” Let’s keep that in place. If the legislature wants to change it, it’s up to them. When you do that on religious freedom in this country, you’re going to get a vibrant, protective, religious freedom for all Americans. And that’s the direction we’re heading right now.
Mr. Jekielek: That’s absolutely fascinating. So are you concerned about this whole talk of prospective court packing?
Mr. Shackelford: Yes, court packing would destroy the Supreme Court. It’s a horrible idea. It’s been tried once before. And even though at that point, you had a Democratic president, and a heavily Democratic Congress, not only could they not pass it, it was incredibly damaging for both the president and his party, because the people immediately understood what this would mean.
If people don’t understand what court packing is, it means we’ve had nine Justices on the court for 150 years, but the constitution doesn’t say it has to be nine. So the idea is, well, if a president comes in and happens to have the House and the Senate in his party and he says, I don’t like the Supreme Court and the rulings. I’m going to add four or five, or however many I need to to get them to rule the way I want them to rule.
If you do that, then the next administration who comes in will add four or five, or however many they need to add. The court is no longer an independent judicial body. It’s now just a political body, and adjunct of Congress, and it really destroys a third of our government. It would be a horrible thing for our country. But there are people who don’t like the decisions of the Supreme Court. They think they’re going to come in, and if they get power do that, it would be really a savaging of our institutions. I don’t think Americans would put up with it.
Even if you had one party takeover, the Senate, the House, and the Presidency, the idea that they would have to throw out the filibuster, which is incredible. That would be an incredible change for our country—to really destroy the Supreme Court and to politicize and make it a political body. The American people would react to that.
We saw a poll, we actually helped to commission a poll before the election, because they were talking about this court packing idea. Even among independents, not Republicans or Democrats, a heavy two thirds said. “Absolutely not. No court packing. It’s a horrible idea.”
It’s something that you can only find in the people who are out of power, who want to yield power in a very inappropriate way that’s damaging to the country long term. So I think that the people—if we ever get to that point, which I pray we don’t, if somebody tries this and thinks that this is a good idea—I think that the people will react, and I hope they will strongly make sure it doesn’t happen.
Mr. Jekielek: You have another case that’s heading up to the Supreme Court, the Coach Kennedy case. It’s a fascinating case that’s been going for a while. I’m wondering if you could talk about it and its implications.
Mr. Shackelford: Coach Kennedy was a Marine for 20 years, got out of the Marines and went to be a coach. He made a pledge to God that at the end of every game, when you go to the center of the field and shake hands with the other team, the first thing he would do is go to a knee and thank God for the privilege of coaching the young men that he got to coach. That’s what he did for seven years, until somebody saw him and said, “Hey, what’s going on?”
And they told the school, and the school then sent him a letter and said, “If you go to a knee again, we’re gonna fire you.” And, you know, he’s a Marine. He said, “Look, I love those kids, and I want to be with those kids. But what kind of example am I, if as soon as somebody tries to take away our freedoms, I just tuck my tail and run?” And so he went to a knee. And went 20 seconds, silent prayer all by himself, and they fired him.
So we filed a lawsuit against the school district saying this is a violation of his rights under the Constitution: free speech and freedom of religion. We went up to the Ninth Circuit, which is a circuit, unfortunately, in San Francisco. It had been known as the most liberal circuit in the country. They ruled that coaches are not allowed to pray in public if anyone can see them, like a spectator.
Again, this is partly because of this warped understanding of the Establishment Clause. They said, “Well, if a spectator were to see the coach praying, and since the coach works for the school, and the school is a government school, then maybe the government is pushing religion.” That is just ridiculous. I mean, nobody’s that dumb. They know that’s coach Kennedy going to a knee because he says a prayer by himself, not coercing anybody. Everybody’s free to do what they want. That’s how the country works.
So we went up to the Supreme Court. The Supreme Court didn’t take the case, but they sent it back down for more development. And they actually sent a really strong signal in it. They said, by the way, we noticed that—and this is the four conservative justices in their opinion that they wrote—we noticed that the first claim to reach us here was a free speech claim, not a Free Exercise claim.
Maybe that’s because of the Smith decision, which was handed down 30 years ago, that has caused so much damage to religious freedom. But we haven’t been asked to review that decision yet. So not a subtle hint—go back down, develop the case, come back, and maybe we’re ready to get rid of this bad precedent that has been so hindering to religious freedom and the Free Exercise Clause.
It kind of sent happy shockwaves throughout the religious liberty community, because they said, “We didn’t know if we would ever be able to do anything about this bad decision that has really caused so much damage to the Free Exercise Clause.” But we’ve got Justices now who are ready to look at it, and hopefully restore religious freedom to all Americans. So we’re really hopeful about the case.
We’re now going back up. The argument is January 25th, back in the Ninth Circuit. We don’t necessarily expect a very friendly decision from the Ninth Circuit, but we know this is all because we’re on our way back to the Supreme Court. This is about every coach around the country. And many coaches have come to coach Kennedy’s defense—the famous coach Bobby Bowden, pro coaches, and college coaches all across the country.
If you can’t have coaches be people of faith, we have real problems. But it goes further than that. How many people work for the government, for the federal government, the county government, and the local government? Are you saying that anytime anybody works for the government, they can never be religious in their own personal life—that somebody might see them? It would have a huge effect on all of them. But I think even more than that it’s really on the whole country.
If the government can tell you people can’t pray in public, there’s really very little left that they can’t tell you. What else can they say? Can they tell me I can’t pray in public because I’m on their property, or I’m on their sidewalk, or their street or park? This is a pretty big power play, if the government were allowed to have this kind of power.
We feel really strongly that when we’re over with this case, when we’re done—and coach Kennedy, he’s a fighter and he’s not going to give up—we feel like we’re going to get a victory for not only coach Kennedy, but really for the country. Everybody kind of looks at that and says, “Would I go to a knee, if it meant I have to lose my job for my freedoms?” I’m glad God picked a Marine to be in this situation, who didn’t fight all those years to let the constitution be watered down. He’s been standing his ground now for gosh, it’s probably been six or seven years. In the next few years, hopefully, we’ll be back to the Supreme Court. And it’s a pretty significant decision for the country.
Mr. Jekielek: So we’re in a situation right now, where it’s as of yet unclear who the next president is actually going to be. Obviously, you’ve been thinking about this. What would be the impact on your work and on religious freedom of a prospective Biden presidency?
Mr. Shackelford: That would be a pretty significant change. Number one, a lot of the religious freedom Executive Orders and other things would be undone and a lot of the protections that were put into place. Then we also expect that there would be a flurry of attacks on religious freedom, because now there would be a lot of people with very anti-religious freedom ideas coming into different government agencies and power structures that could use the power of the federal government.
Again, take just the one issue of Obamacare. And the fact that there were 100 different religious ministries and organizations that were in lawsuits, because of Obamacare. Take the refusal of the Obama Biden administration to respect religious freedom—which is why the Little Sisters of the Poor were being told no, there’s not an exception for you. You nuns have to buy abortion-causing drugs as part of your health care plan. That’s just incredible.
But that’s where we were. 100 lawsuits just on that one agency, HHS, and that one situation. Now multiply that times a lot of different agencies and departments, federal departments. We expect if that occurs to have to just really engage in a lot of litigation, protecting religious freedom around the country. Because the most powerful force, really, in our country, as far as money and resources, the federal government, would be armed with people who have a very different understanding of religious freedom, and really don’t see it as very important. And as a result, they think that it should kind of step to the side while they do what they want to do.
Mr. Jekielek: So would it necessarily be the same approach as the Obama administration?
Mr. Shackelford: Everything we’ve seen so far says it would be the same. Joe Biden, for instance, has already said that he would do the same thing with regard to Obamacare. So all those battles and lawsuits, Little Sisters of the Poor and others, those kinds of things would start back. But I think it would be more because it would be a lot of different other agencies. And we would be in a battle in a lot of different areas.
We could go through lots of examples. I’ll just give one. I don’t think anybody doubts, because Biden as a candidate said what he would do with regard to transgenderism. He was asked about changing the sex of a 12-year-old child in one of the last town halls. So what would a Biden administration do with regard to males, people born males, being able to say they’re transgender and transitioning and being able to compete in women’s sports?
I don’t think anybody doubts what would happen. They would advocate for those males being able to participate in women’s sports. Well, it’s going to create conflict all over the country. Number one, there are no women’s sports if the people with physical male bodies can participate in the women’s sports. We have seen this state after state. All records get wiped out.
But think about the religious freedom aspects to these, okay? A lot of religious schools are in these athletic associations. Now they’re being told what they have to do with regard to their athletes. No, you can’t discriminate by saying that a male can’t participate in your female sports, and their opponents the same thing.
The Department of Education will be heavily involved in this, and it will immediately create problems in every school district across the country, with all the religious schools across the country. Again, that’s just one example of where you will see things that will flare up and will cause conflict with religious freedom and with groups that have very different ideas and beliefs about human sexuality, how God created people, what is appropriate, what is moral, and what is in line with their religious beliefs. And you’ll have a government that has a very different set of beliefs.
Mr. Jekielek: As we start to finish up here, I also wanted to talk a little bit about some of these very interesting religious freedom in the military cases that you’re specifically involved in. Maybe you can give me a quick overview of where things are at.
Mr. Shackelford: We’ve had a lot of religious freedom cases in the military. We’ve had chaplains being told that they basically can’t be chaplains. Just stuff that really is shocking. The military, unfortunately, is becoming more infected with politics and political correctness and things that take away people’s freedoms.
These people are giving everything for us. The idea that we would take away their freedoms in the process is really inexcusable. They can’t really defend themselves, because they’re in a hierarchical structure. So if somebody doesn’t come in with them, then they really have nowhere to go.
During the pandemic, when it just started, a lot of the chaplains had their chapels closed down. They wanted to make sure and get a message to the people who were serving. So they would just post their homily or prayers on the internet. And believe it or not, some people complained. “Oh, you can’t do that. They’re the government and they can’t put their prayers on the internet.” Like what? They’re chaplains! Yes, sure they can.
And so we actually had to go to Congress to get it reversed. They were actually being told by base commanders that they could not put anything religious on the internet. Probably the most well known case right now—we’ve had a number of POW cases and we’ve gotten some others—but probably the most well known is the Shields of Strength case.
This is a guy by the name of Kenny Vaughn, who was a champion long water ski jumper. It’s pretty scary. I mean, it’s pretty dangerous. So he would get scared, and his girlfriend gave him scripture verses that he would put on his arm and his wrist to get his courage back. And it gave him an idea. He thought, people are serving us in the military. I bet they get scared. And I bet a lot of people have faith.
So he came up with this idea of doing these dog tags that had scripture verses on it, like God’s saying, “Be strong and courageous, I’ll be with you.” And, boy, you can’t go into any unit of any branch of the military without finding people that have these. They need to look at it every once in a while. They’re scared, they’re in a tough situation. They need that.
And really, it goes all the way back to George Washington. The first thing he did as the general for our very first set of troops was give everybody a Bible and establish chaplains, because he knew when people are in this situation, they need to be able to rely upon their faith, or you’re not gonna have good soldiers.
Kenny Vaughn has these, and it’s such an incredible thing, and he’s a great guy. Somebody complained after like 10 years of this. Somebody complained. One person. And they have now shut down the ability to provide these—nobody’s required to have these—for Kenny to provide these to people who serve in our military. The idea that they can’t have this around their neck to remind them, all because somebody complained and somebody’s scared in the bureaucracy at the DOD.
So we’re in the process now of getting that reversed. And we’re not going to stop until it’s reversed, because this is a clear violation—the idea that they can have things, but they can’t have things that are religious. The government can’t do that. That’s religious discrimination. And Kenny, he’s in shock. I mean, it’s been such a blessing to so many people.
And it’s free for anybody who wants it or doesn’t want it. Nobody’s being forced by anybody to do it. The idea that you would rob them of the ability to have this makes no sense. So Shields of Strength is an important case for everybody in our military, and really for religious freedom, period.
But the military cases used to be something we didn’t have to worry about. Now we have a lot of them. The good news is that we’ve won almost every case we’ve ever had in the military. They do have protections under the Constitution. There’s a federal act called the Religious Freedoms Restoration Act. It fully applies to those in the military and gives them full religious freedom protection. So that’s the good news.
If they’re willing to stand up, they win. It’s just that we’re really going to have to stand with them in a lot of these cases. Because more of the attacks and the politics have unfortunately seeped into the military. And unfortunately, the people who have been hurt by that are people who are serving and trying to follow their faith.
Mr. Jekielek: This is just an incredible situation to me, because you would think you would want people to rely on their faith. They’re putting their lives on the line, what is going to carry someone through that? Fascinating. Any final thoughts before we finish up?
Mr. Shackelford: The encouraging thing is that we’ll be able to keep our freedoms, as long as people are willing to stand up for their freedoms. I do feel right now in the country, more people are willing to do that than I’ve ever seen. And if people are willing to stand up, then those freedoms won’t be taken away. That’s why we’re here to stand with those people.
We get to stand with heroes every day, whether it’s Coach Kennedy, whether it’s Kenny Vaughan with the military, or whether it’s a case we just won with a blind woman who was actually banned from sharing her faith in the public park for two years. She stood her ground. She’s going back to that park now, and she’s sharing her faith.
If Americans are willing to stand, they will get their freedoms back and more than that, they’ll be standing for millions of other people. So I see more Americans not willing to put up with having their freedoms taken away. It encourages me about the future of the country.
Mr. Jekielek: Kelly Shackleford, such a pleasure to have you on again.
Mr. Shackelford: It’s a pleasure to be here.
This interview has been edited for clarity and brevity.