Defending Religious Freedom | Kelly Shackelford

FULL EPISODE TRANSCRIPT:

Rebecca Weber: Hello, everyone. Welcome back to AMAC Podcast, Better for America. Joining me now is the President, CEO, and Chief Counsel of First Liberty Institute. This is the largest legal organization in America, dedicated exclusively to defending religious liberties for all Americans.

Kelly Shackelford is with me now, sir. Thank you so much for joining me. Welcome to the show. 

Kelly Shackleford: Thanks for having me. 

Rebecca Weber: Sir, you’re a constitutional scholar, and you’ve argued before the United States Supreme Court, you’ve testified before the U. S. House and Senate, and you’ve won numerous landmark First Amendment and religious liberty cases.

I do think today, more than ever, it seems that our religious liberties are under attack, and I loved what your organization has done and what you’re doing. Your organization published information regarding religious liberty in the states. And you did this by ranking each state based on legal safeguards.

Now, in 2023, my home state of New York was ranked number 46. Can you share a little bit about how this project came about and what are some of the legal safeguards that American people should be aware of? 

Kelly Shackleford: Yeah, we, we do cases. And so most people know of us like winning big cases at the Supreme Court and all this, but Really, we had the idea, a think tank that we have, had the idea, let’s do something academic that helps people understand state by state how their state is doing.

And so what they did is, we brought on econometrics experts and everything so this is totally objective. And we, all they did is list all the types of laws that states have passed. to put extra protections in their state laws for religious liberty. And then once they had that full list of all of those, they compared every state and they said, who has the most of these protections?

Who has the very least? And we release that every year now. It’s the Religious Liberty in the [00:02:00] States index. And for instance there are states that have what’s called a Religious Freedoms Index. Reformation Act or Restitution Act, basically an act that simply says, in our state, if the government interferes with somebody’s religious freedom, they can only justify that and we will only allow that if there’s a compelling governmental interest that’s requiring them to do that and they’re doing it in the least restrictive means possible.

That’s a major approach or test that we’ve had in our law for, over a hundred years. And so a number of states have that, and if you have that, you can imagine the extra protection that gives you as a citizen to the government coming in and really infringing upon people’s religious freedom.

So some states have that, some states don’t. Some states have protections for religious conscience in health care. Can you force a doctor or a nurse to participate in some procedure, abortion, [00:03:00] etc., that they have a religious objection to? And some states have those protections in the law and some don’t.

You can see how there’s a lot of these types of things where some states have passed and not. And one of the fun things to watch over the past three years is to watch the states see how badly they’re doing versus other states and start to pass. New laws to provide, they don’t want to be behind in providing freedom for their people.

And so it’s fun to watch and we’re going to be announcing in fact, in the coming days, which states are rising the quickest and realizing, hey, we’re going to pass that law and that law to make sure that we have more religious freedom in our state than other states. 

Rebecca Weber: Just terrific.

And people can check out more at religiouslibertyinthestates. com, I believe is the URL. But terrific work that you’re doing, and I encourage people to become more aware of what’s happening in your state so that you can be sure to vote on the issues and understand the issues and the threat against your individual liberty.

Now, sir, we’re seeing a big push from progressive Democrats on the attempt to restructure the court. We learned that Joe Biden has plans to support sweeping changes to the Supreme Court, and it includes term limits to remove the longest serving justices, starting with Thomas and Alito. He wants to enforce a code of ethics.

How would transferring transforming, rather transforming the Supreme Court into another partisan body, how would that destroy the independence of the judiciary and really threaten our civil liberties? 

Kelly Shackleford: This is really dangerous and most Americans don’t completely realize because they haven’t been through this.

If we have, we went through when they were talking about hacking the Supreme Court, there was actually a bill to add four justices, to add 200 lower court judges. These were the more extreme leftists who wanted, didn’t like the fact that, there weren’t, they weren’t controlling the courts with people with their liberal ideology, which is not what judges are supposed to do anyway.

And they offered these things. And so we did a lot of education. And people can go to First Liberty. org and get to our website. We have a website called Supreme Coup. And we talk about other countries, Venezuela, Argentina. If you look at countries who have moved into tyranny fairly quickly, you’ll find that they often will pack their court, they’ll take over the Supreme Court, the rule of law is gone at that point.

There was an attempt to do that in the United States, also, 1936 37. You had FDR, a very popular president, but he didn’t like what the court was doing on a few decisions, so he tried to pack the court. The response was just overwhelming across the country. Again, this is in the 1930s, and they were averaging 1, 200 letters a day coming into the Senate, saying this is tyranny.

Because what happens is when the other bodies take over the court, the independence of the judiciary is gone and really it’s just another political body. And so you might think you have freedoms, but you really don’t because whatever freedom that is, all they have to do is add justices until they have enough to rule differently on that freedom.

So this type of an approach of restructuring our Supreme Court, and I know President Biden, one of the things is. We’ll just put term limits. That’s really fake. It’s not about term limits, it’s about the fact that the older justices right now are conservative, and so if you do term limits, you throw the conservatives off first.

This is all because they don’t like some of the rulings, and therefore it’s totally partisan, and that’s a really dangerous thing because once you lose your courts, once you lose the rule of law, You really don’t get it back, and so it’s something that Americans, and the great thing is the polling we’ve done show Americans don’t want this, that a high percentage, in fact over 90 percent of Americans, think that the independence of the judiciary is of supreme importance.

So people are going to have to speak out against this and make sure that something really horrible doesn’t happen to our country. 

Rebecca Weber: Yeah very important. Important to understand the motives behind why progressive Democrats are really aiming to destroy the judicial system. And it really is all about gaining more power and control over your individual life.

And so here at AMAC. us, we will do everything we can to support our constitutional republic and what that means for we, the people. Now, sir, given you have a tremendous expertise in constitutional law a lot of people are talking about the recent federal judge’s ruling that Jack Smith’s appointment as special counsel violated the appointments clause.

Can you speak to that just a little bit to inform people on how valid do you think that ruling was and what that means? 

Kelly Shackleford: Yeah, there’s obviously going to be disagreement about that, and I’m sure there’ll be future cases where that’ll be fought up through the system, but the concept, I think it’s a very good concept, is that if you’ll notice, our district attorneys in this case, our federal prosecutors are they are all, they all have to go through a confirmation process, right?

They have to, Congress, it’s not just the President that is picking, saying, okay, I don’t want. I want this federal prosecutor to be the head prosecutor in this area and in this area and in this area because presidents get to pick that person, but they have to be approved by the Senate.

And that bicameral or in this case, two of the branches being involved is very important. What happened in this case is you had the federal government, in this case the executive branch. The DOJ, there is a special counsel law that they could have followed, but that goes through again, the Senate, and there’s an approval.

What they did here is they appointed a special counsel with no congressional interaction to it. It was just them. Those, this, when you do that person doesn’t even go through the appointments process. If they wanted to pick one of their already approved federal prosecutors around the country, they could have done that, but they didn’t do that.

And that is a violation of law. Justice Thomas mentioned that in the presidential immunity case in a concurrence. And so when that got back down to the district court, it’s something that the district court judge looked at and said, this is a problem. This was not done properly. This prosecutor has no authority here.

And that’s one of those things where if we want to. If we want to go outside of our system, if we want to go outside of the people who are already appointed and approved, then you’ve got to go through Congress in that situation. And while we understand how executives like to do things on their own without following the rules and involving Congress, you can’t do that.

That’s unconstitutional. 

Rebecca Weber: Yes. And again, earlier this month, Congresswoman and progressive Democrat Alexandria Ocasio [00:10:00] Cortez, better known as AOC, she introduced articles of impeachment against the United States Supreme Court justices, both Clarence Thomas and Samuel Alito. Again another attack against our judicial system.

Tell me a little bit more. Is this for show in your view? How in fact does that play out? And is this, in your view, another dangerous attack against our freedom and rule of law? 

Kelly Shackleford: It’s incredibly dangerous. We have a list. I won’t go through them all now. But again, at firstliberty. org, we talk about the judges part.

People can look at that and see the list. There’s a lot of things that people have forgotten. Chuck Schumer. Literally standing on the steps of the Supreme Court and threatening the justices. We’ve got somebody who was trying to assassinate one of our justices, if you’ll remember Justice Kavanaugh.

We’ve got a lot, and then, and yet, the law not being enforced in that, in those situations with regard to Being able to have people right in front of a justice’s home. There are a number of incidents where we’ve seen this ratchet up in the last few years. And it’s very dangerous because, for a couple reasons.

Number one if they succeed, again, we’re going to lose, we’re going to lose our country. You’re going to be a third world country because the rule of law is not going to win. It’s going to be, the judicial branch is just going to be an appendage to the Congress. They’re going to be a political body.

And we’re going to see what we see around the world. But also, just the intimidation that, for instance, I mentioned earlier that FDR tried to do a pack the court. And while the people objected, and there was a rout, that, that bill not only didn’t pass, the Senate sponsor died of a heart attack.

And when the next election came, it was a, it was really a massive change because the people did not like this, and they threw lots of people. But, the justices were intimidated by this, and they started to actually change their opinions in a way that was more favorable to FDR. So this is really dangerous, these kinds of baseless attacks, like AOC’s attack.

She was wanting to go after and impeach two justices because of their travel records. And again, if you look at what even she criticizes Alito and Thomas Boer, the liberal justices do the same thing, but she’s only focusing on the two more conservative justices. And again, they’re baseless charges anyway.

So this, even worse Senate White Senator Whitehouse actually referred criminal charges. To the DOJ to allegedly go after Justice Thomas. They are really trying to politicize the judiciary, and that is very dangerous. And let’s hope that the American people continue to just reject that completely and find that unacceptable so that politicians won’t think this is a good move.

Rebecca Weber: Yeah, very important. And we understand that they can’t [00:13:00] use, we want to make sure people understand that the judiciary can’t be another political tool of whoever holds power. This is really dangerous for Americans. It will really destroy the Constitution’s founding principle of separation of powers.

So we here at AMAC are entirely in support of ensuring that we don’t politicize the high court. Public confidence we know is already dipping and certainly I see the Supreme Court as the last line of defense these days. So I thank you, sir for your perspectives there. I, before we let you go, sir, I do want to talk a little bit about the First Liberty Institute and some of your recent wins.

I just think what you’re doing and your organization is so desperately needed, especially today with everything happening. So tell us a little bit more about what people should know. 

Kelly Shackleford: It’s been an incredible time, and we have about 350 cases a year that we do, but there are a rare number of cases that the Supreme Court takes every year.

They get about 7,000, maybe 8,000 requests, and the last couple of years they take about 60 cases a year. So your odds of getting them to take your case are not real high. And so if our goal over the past two and a half years was for them to take one of our cases, that would be a pretty heady goal. They didn’t take one, they didn’t take two, they didn’t take three.

We won four separate major religious liberty cases in the last two years. All very important. One really important for religious freedom in the workplace, the Groff case. One a lot of people heard about the Coach Kennedy case, the coach who was fired for going to a knee and saying a prayer after the game was over by himself.

We won that case and it changed some major precedent. One. On whether a state, like in this case Maine was saying we’re going to let parents have school choice and they can pick whatever school they want, but they can’t pick a religious school. Again, court declared that unconstitutional. So we had some really major wins, and some of these are really going to shift what we see in our society as soon as people begin to understand what these wins are.

For instance, in the Coach Kennedy case, there was a precedent that had been on the books for 50 years. It’s been cited over 7, 000 times to really make the government hostile to religion. And it’s the reason why nativity scenes, we, our whole lives, we’ve seen nativity scenes come down, menorahs come down around Hanukkah Ten Commandments pushed in the closet panic if there’s any sort of religious expression by a student or anybody at the school.

Why? Because any of those things are in the Constitution? No, because of this case called Lemon that was handed down 50 years ago. In the Coach Kennedy case. That precedent was reversed and all 7, 000 of those citations are now have a red check next to them, which means you can’t follow them.

Everything really shifted. You’re going to start to see the TV scenes, around Christmas, you’re going to start to see a manure around hockey, those 10 commandments monuments that are in the closet can come right back out and who we are as a country. The fact that we have religious and secular people.

And that can all be celebrated. It’s going to change in a really positive way. If you watch football season this year, you already began to see this. Coaches, players, people coming together after the game to pray together. That is totally protected. And this is a good change, the kind of things that our Supreme Court justices are doing.

They’re restoring that First Amendment right to free speech and free exercise of religion. And I think it’s going to change our country. I think the problem is, it’s been 50 years and they’ve been trained you can’t do any of these things. And it’s going to take a little while for people to understand that the landscape of freedom is different.

And I’ll say something that might sound radical, but after all what I just said, I think people can know it’s true. Every American alive right now has more religious freedom than they’ve ever had in their lifetime. And we’re just at the beginning of that because we’ve got justices. Who will actually look at what the Constitution says instead of [00:17:00] some, political or legislative policy they’d like to support.

Rebecca Weber: Yes, Kelly Shackleford. Thank you so much. You are a true hero. Thank you for protecting our religious freedoms and all of our cherished liberties. God bless you and thank you for the great work. To all of our good listeners out there, please go ahead and visit FirstLiberty. org. Check this website out.

Learn and understand how your state operates. Be educated on the issues. Sir, again, thank you for being here and I do hope to have you back with us again real soon. 

Kelly Shackleford: Thank you and thank AMAC for all you do. 

Rebecca Weber: Excellent. And to all of you out there listening, be sure to tell a friend or family member all about AMAC.

Go ahead and renew or join online. Visit us at AMAC.US. Have a great day, everyone. God bless you.