SCOTUS Unanimous for Religious Freedom

Welcome to Family Policy Matters, an engaging and informative weekly radio show and podcast produced by the North Carolina Family Policy Council. Hi, this is John Rustin, President of NC Family and we're grateful to have you with us for this week's program. It's our prayer that you will be informed, encouraged, and inspired by what you hear on Family Policy Matters, and that you will feel better equipped to be a voice of persuasion for family values in your community, state, and nation.

And now here is our host of Family Policy Matters, Tracey Devette Griggs. Thanks for joining us this week for Family Policy Matters. While the U.S. Supreme Court has been front and center in the news in recent weeks, many of us may have missed an important unanimous ruling the High Court issued on May 2nd. That case has important religious liberty implications. Well, we're joined today by attorney Matt Staver, who successfully argued this case at the U.S. Supreme Court. He is founder and chairman of Liberty Council, a Christian ministry working to advance religious liberty, the sanctity of human life, and the family through several outlets, including strategic legislation. Matt Staver, welcome to Family Policy Matters. Thank you.

It's good to be with you. Well, first of all, tell us a little bit more about what your organization's goals are and what are some of the outlets that we just mentioned that you all work through to achieve those goals? Well, our organization's mission has always been the same since 1989, and that is to advance religious freedom, the sanctity of human life.

And then later in the 90s, we added the third prong, which is the family, threats to God's natural design for family and husbands and wives, male and female. And we do that through litigation in the courts all over the country, as well as public policy, giving information and guidance to legislators so that we can have good laws that actually align with good society and are in consistent alignment with our values. Let's talk about this case that I mentioned in the opening. It's Shurtleff versus the city of Boston. So what were the circumstances that led to this lawsuit against the city of Boston? Well, this began back in 2017 when Hal Shurtleff, the founder of Camp Constitution, wanted to have an event in the city of Boston on the public policy and by the flagpoles, both of which were considered for 12 years by the city of Boston as public forms. That's their term, open to all applicants.

Again, that's their term and their policy. And he wanted to, as well as have an event for one hour, talking about the Judeo-Christian history of the history of Boston, the Commonwealth of Massachusetts and the founders, including John Adams, John Quincy Adams and others. He wanted to temporarily raise the Christian flag on one of the flagpoles that they designated as a public forum open to all applicants. For 12 years, the city of Boston did not censor a single flag of private flag-raising applications.

They had 284, no denials, virtually no review. But then Hal Shurtleff's application came across the desk and they censored it. They censored it not because the flag itself. The flag itself is not the problem.

One word on the application caught the attention of a Boston city official who was approving or reviewing these applications. And that is the word Christian associated with the word flag. He denied it solely because of the word Christian. He said to Hal Shurtleff, if you called it anything but Christian, call it the camp constitution flag, call it anything, just don't call it Christian.

We would grant your approval. But if you call it Christian, we're going to deny it. And so that's how it actually began. So it's very clear they didn't hide the fact that indeed they were censoring the Christian viewpoints. They tried to defend themselves, but they clearly admitted that it was the Christian viewpoint that was not welcome. So really, it wasn't a policy that they wanted to open to all applicants. They only wanted to open it to people that they agreed with. But that was the constitutional violation that this nine to zero to Supreme Court decision ultimately shot down. So this always amazes me. It's like, how can these people get into these positions and not understand what some of the legal precedents are that have already been in place?

Can you talk a little bit about those? I mean, he should have known better, right? We thought it was going to be an easy issue when Hal Shurtleff got the denial. We said, surely there must be a mistake.

Let's send a demand letter. We'll clear it all up. No, they dug their heels in. They said, no, this is Christian speech viewpoints. We're going to censor it and we can and we must because of the so-called establishment clause. And that they said, no, it's really government speech, which makes no sense because for 12 years they included private displays of pro communist China, Mao Zedong. And about a week later, anti communist China, anti Mao Zedong. And those were by private citizens who was the city speaking out of both sides of its mouth. One week it's pro China, pro communism, pro Mao.

The next week it's anti China, anti communism, anti Mao. Now, it was clearly private individuals speak on a speech on a public forum, but they said, no, they're going to censor it. We filed a lawsuit. We thought surely this would be easy to resolve. Now, what happened is you realize how far off the constitutional platform these judges have gone. And in fact, in this case, we lost in the lower court. When we appealed to the Court of Appeals, we thought surely we'll win here. And we lost three to zero. We went back down for additional discovery, found more applications that they had granted, not a single denial.

Two hundred eighty four over 12 years with no denials except for Howells because of its Christian viewpoint. We thought surely this would win the case. No, we lost again. Went back to the same Court of Appeals panel.

Three to zero loss another time. And so it was stunning how off base these judges were. We asked the Supreme Court for review. They saw the significance of the case, of course. And now we've got a nine to zero decision, which really is great in the sense that there's no shadow under which these judges or some of the naysayers can hide and say, well, I agree with this dissent.

There are no dissents. It was a slam dunk, huge win. In fact, the Boston Herald the day after this decision on the very front page took up the entire front page regarding this case. And in bold letters, they said supreme spanking. And they talked about this case with the Christian flag. So these lower courts, what were their arguments for denying this?

What did they say? Well, I think they got caught up with the idea that you don't typically fly a Christian flag on a public flagpole, that there's just no way you could actually do that. That would be an establishment of religion. And we said, well, look at the policy, look at the practice.

Twelve years. We also have a policy that says it's a public forum, that it's open to all applicants. You can't exclude religious viewpoints from a public forum. They were so much against religious speech, so much anti-Christian animus, I think, coming from these judges that they ended up reaching a result that they wanted to without even addressing the core issues. And so they said, no, we're going to assume that this is Boston speaking and Boston can say whatever they want to.

So they can exclude you, although they don't exclude anyone else. We thought that would win the day. That's pretty obvious. But no, we lost. And obviously that's what caught the attention of the U.S. Supreme Court and why we got a nine to zero decision.

All right. So talk a little bit about how that decision came about. What were some of the comments made during the argument? The interesting comment was first by Justice Breyer. He asked me as I was arguing and this question was followed up by Justice Kagan to the city attorney after my argument. And that is, why did the case not settle? I said, well, you know, we thought it was going to be an easy situation, but the city dug its heels and would not budge. And you don't want if you're defending and you're at the Supreme Court. The last person you want to ask you this question is Justice Breyer and Justice Kagan. Why didn't you settle the case?

In fact, Justice Kagan said to the city attorney after you made a mistake, why didn't you settle move on? It looks like you have flags go up, flags go down. The only flag you didn't allow.

That was this Christian flag. That looks like a violation of the free speech clause. Those were the kinds of comments that came out during the argument. The good thing is that when the decision was actually written, it's not only nine to zero, but Justice Kavanaugh has a great concurrence. He says specifically that religious persons, religious organizations, religious symbols, they are not.

You cannot censor them under the Constitution when you allow these other secular symbols, speech and organizations to have their own viewpoint. And Justice Gorsuch said, with regards to the so-called Lemon Test, he said, how did the city get this so wrong? Well, they relied upon this outdated, terrible Lemon Test going back to 1971. He says that came about during an era where the justices were more freewheeling and not consistent with the original intent and understanding of the Constitution. Those days are long gone. He called it a bygone era. And he noted that none of the nine justices raised the Lemon Defense.

He noted how this is now a new era. And in fact, the Lemon Test has been the favorite weapon of people who want to censor religion and religious viewpoints or religious symbols like nativity scenes. They've raised that to ultimately intimidate government officials and use that as a defense to censor. And the good news is over the years, we've chipped away at that. We've moved forward with this religious free speech and viewpoint litigation.

And this is a culmination of many years of litigation and strategy that started back in the 1990s. So this is a very significant case far beyond a Christian flag, because somebody might say, well, I don't fly a Christian flag or there's nothing like that in my county or my city. Right. But the fact is there's after school programs, there's renting of facilities, for example, churches in schools on Sunday, there's public band shells that are in the public parks that you might want to use for an event.

There's library community rooms. There's all these public fora all over the country. And what this case stands for is that you cannot censor religious viewpoints from these public forum or marketplace of ideal locations. So how common is a unanimous ruling?

It's very rare. I'm very ready to get the unanimous ruling by the justices on any issue, certainly a non-controversial issue, but even more so a controversial issue, one that typically would perhaps split votes and religion always splits votes, whether it's a religious symbol or religious speech. And in this particular case, to get a nine zero decision on this issue is an incredible situation. And I think it really silences the critics. In fact, the one nice thing about it is if there was even one dissenter that raised the sky is falling kind of argument, it would have been that which had gotten most of the print in the newspaper.

They would have quoted that person. There's not a single justice that's a naysayer on this case. So all of the dissenters that otherwise would not agree with religious free speech, they had nothing to hang their hat on.

They have no shadow to hide in. So it is very unusual and it has a very powerful opinion. I think for that reason alone, it magnifies the impact of the case. Now, you mentioned earlier the anti-Christian animus and how you found that to be stunning, especially from so many different panels of judges. Is this a wake up call for us?

Should we be alarmed as Christians in the marketplace? Well, I think it is a wake up call because it shows you that some of these judges below, whether it's in the district court or the court of appeals, that is a problem. Most of these cases don't ever get to the U.S. Supreme Court. So those that ultimately lose and the Supreme Court doesn't take up the case, the fact is that, you know, you've got to have some changes. And consequently, what happens is that we need, you know, elections matter because it matters who's in the White House, who's nominating these judges at the federal and state level.

It matters when we're electing state judges or having state judges appointed because they're the ones that are out there making a lot of these decisions, good or bad, consistent or inconsistent with the Constitution. Many of these cases that otherwise should be winning, like the shirtless case here, they don't ever make it to the U.S. Supreme Court. So it's a big issue and we have to be cognizant of it.

I think the one thing that we want to certainly emphasize is don't give up. If you've been discriminated against, censored in your viewpoint, like in this particular case, don't just simply walk away because more than your speech is affected. If you don't challenge it, you don't move forward with this kind of a challenge and right the system, then someone else is going to be censored. And by lack of challenging, it becomes a policy and a practice of these government officials and they think they can get away with whatever they want to. The recourse is for people to go to organizations such as yours or what do you recommend?

Yeah, absolutely. They need to go to Liberty Counsel's website, lc.org. We evaluate these cases.

We don't charge for anyone that we decide to take. We can't take every single case, but we'll send out demand letters or we'll, in this case, take it all the way to the U.S. Supreme Court, whatever is necessary. But this is a great example. It's a great example that Hal Shurtleff just didn't give up when he got denied. He ended up contacting Liberty Counsel. We looked at his case, we evaluated it and we didn't give up, neither did he, any step along the way and have that great victory now with this precedent that will echo through history.

Okay. And of course, you just gave us your website and that's very simple, lc.org. And you can go there to follow the good work that Matt Staver and his colleagues are doing. Matt Staver, founder and chairman of Liberty Counsel, thank you so much for being with us on Family Policy Matters. Well, thank you so much and thank you for what you're doing.

God bless you. You've been listening to Family Policy Matters. We hope you enjoyed the program and plan to tune in again next week. To listen to this show online and to learn more about NC Family's work to inform, encourage and inspire families across North Carolina, go to our website at ncfamily.org. That's ncfamily.org. Thanks again for listening and may God bless you and your family.