By Kelly Shackelford
In 2004, I was honored to be invited to give testimony to the U.S. Senate Subcommittee on the Constitution regarding attacks on religious liberty in America. During my remarks, I cited numerous examples from around the country, which prompted an important question from Sens. John Cornyn and Ted Kennedy: “Are these isolated incidents or an indication of a larger trend?”
In order to answer, my firm, First Liberty Institute, conducted exhaustive research and published the results in the first edition of “Undeniable.”Since then, we have regularly updated this resource with the latest examples from our cases and others around the nation.
This week, we released the latest edition of “Undeniable.”
I have spent the last 30 years defending religious freedom for people of all faiths in America. This experience has led me to two fundamental conclusions that at first glance might appear contradictory: the frequency and intensity of attacks on people of faith are increasing, and yet there is more hope for the future of religious liberty in America than at any point in my career.
In 2018 our firm engaged in over 400 legal matters; with only a few days left in 2019 we’re well on our way to surpassing that mark. Attacks on religious freedom have been growing.
More important than the raw numbers is the increasing ferocity of the assault on our most fundamental rights. I never thought I would live to see the day when a retired pastor would be threatened with eviction from his senior living apartment community for leading a Bible study in a private residence, but that is exactly what happened to our client Ken Hauge in Fredericksburg, Va.
When I began my legal career, the prospect of an unelected state bureaucrat imposing a financial penalty large enough to close down a family-owned business and attempting to impose a “gag order” on the owners to prevent them from publicly speaking their religious views would have been preposterous. But Aaron and Melissa Klein’s bakery, Sweetcakes By Melissa, no longer exists because they dared to hold to their religious beliefs when Melissa was asked to bake a custom wedding cake that would violate her faith.
Despite these and scores of other Americans facing unheard of consequences for living according to their deepest held convictions, there is cause for optimism. In June of this year the U.S. Supreme Court’s decision in The American Legion v. American Humanist Association upheld the constitutionality of a nearly 100-year-old World War I memorial, the Bladensburg Peace Cross, and in doing so declared that all other monuments, symbols, and practices that are in keeping with the history and tradition of this country now enjoy a presumption of constitutionality. The decision effectively abandoned the disastrous Lemon Test, which for nearly 50 years had transformed the Establishment Clause into a weapon of religious hostility used to purge all vestiges of faith from public life.
In the case of coach Joe Kennedy, who was fired for kneeling in silent prayer at midfield after his high school football games, four justices sent a clear signal that they are willing to reconsider Employment Division v. Smith, a case that has rendered the Free Exercise Clause dormant for decades.
Moreover, these are merely the first indications of the direction of the Supreme Court with its newest members, Justices Bret Kavanaugh and Neil Gorsuch, who are committed to the Constitution. With the record pace of nominations and confirmations of federal judges to the District and Circuit Courts of Appeal, a renewed respect for the text and original intent of the Constitution promises more protection of religious liberty than at any point in recent history.
With history as our guide we know that some of the fiercest battles occur just before a war is ultimately won. So, even as the attacks on religious liberty intensify there is room for hope. My hope is that future generations will look back at this moment in time as a turning point for our nation, a time when people of all faiths or no faith, from points all along the political spectrum made the decision to stand together for the notion that none of us are truly free until all of us are free. And though it may at times try our patience with each other, respecting the right to live according to our differing beliefs is the price of admission into a free and civil society. It is a lofty but achievable goal and when we achieve it, the results will be undeniable.
Kelly Shackelford is president, CEO, and chief counsel for First Liberty Institute, a nonprofit law firm and think tank exclusively dedicated to defending religious freedom for all Americans.
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