NICK EICHER, HOST: Today is Tuesday, June 11th. Thank you for turning to WORLD Radio to help start your day. Good morning. I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Coming next on The World and Everything in It: The Olasky Interview.
Today, a conversation with Kelly Shackelford. He heads First Liberty Institute, a Texas-based nonprofit that defends religious liberty. His group is helping the American Legion fight its case against the American Humanist Association over the “Peace Cross” memorial.
EICHER: The monument stands 40 feet tall on state–owned land in Bladensburg, Maryland. The Supreme Court heard the case in February and is expected to issue an opinion sometime this month.
Here’s an excerpt of Marvin Olasky’s interview with Shackelford before a live audience.
MARVIN OLASKY: Let’s go back four decades to the Lemon Test, which I’ve always thought was an appropriate name, generically, but it’s as clear as a specific.
KELLY SHACKELFORD: It is a Lemon of a test for sure. It goes back to what does the Establishment Clause really mean. Congress shall make no law respecting an establishment of religion.
What was Congress trying to do there? They didn’t want there to be a National Church and for people to be forced to support that church. That changed with Lemon Test. The Lemon case, Lemon Test used all kinds of different concepts like separation of church and state, which is nowhere in the Constitution, and what it ended up in is anywhere government is religion can’t be.
Well, government’s everywhere, and so this is why you now see all these attacks on nativity scenes, menorahs, and 10 Commandments, a Veterans Memorial that has a religious symbol on it.
The founders, I think, would be appalled at this that the government has been turned into some sort of anti-religious liberty or anti-religion entity, like it’s supposed to clean the landscape of religious history or vestiges or whatever. It’s not what the Establishment Clause says.
OLASKY: That’s the French Revolution versus American Revolution.
SHACKELFORD: Yes. And it got even worse. They added to it more recently what’s called an offended observer approach, which means, under this Lemon Test—and 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 they felt like an outsider, that’s a violation of Establishment Clause.
And numerous justices have written about how Lemon has thrown the Establishment Clause jurisprudence in hopeless disarray. And even the oral arguments, Justice Gorsuch referred to Lemon as quote “a dog’s breakfast.” Justice Kavanaugh said something similar.
And so I think they know this has got to be taken care of. And so, in the case we didn’t just ask, just preserve this memorial, because there will be another one against this memorial, and this will never end. We asked them, let’s get rid of the Lemon Test and let’s go back to the Constitution.
OLASKY: So, just so everyone’s familiar with it—if you haven’t heard of it—and it’s been well publicized, but give us a little of the facts of the case.
SHACKELFORD: Yeah, this is a memorial that was put up. A World War I memorial, put up almost 100 years ago, in part by mothers who lost their sons in World War I, along with the American Legion.
It’s a cross, which if you look back to World War I, all over the world that was a symbol that was used and so they picked that symbol, which again you’ll find all around the world. They put it up, again, almost 100 years ago and it has on the bottom a list of 19 young men from Prince George’s County, Maryland, which is right outside of D.C., who were honored there.
I kid you not, during the oral argument at the Fourth Circuit Federal Court of Appeals, 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, and we can keep it there.”
So, this was the mindset we were dealing with, and so their final opinion was 2-to-1 that it’s unconstitutional and went to the Supreme Court. And the Supreme Court understands that not only will this effect of that memorial, but Arlington is just a few miles away and there are large freestanding crosses in Arlington as well, and they would have to come down under any logical extension of this.
OLASKY: Well, you can leave it up and you can leave up others, including an Arlington, but no more.
SHACKELFORD: So, you saw Justice Breyer say, for instance, “How about this? How about we keep all the ones that are already up, but we don’t allow any new ones.” Everybody knows this is a mess. And so I think they’re ready to clean this up and really stop a lot of these kind of crazy attacks that are going on around the country against the 9/11 memorial, against veterans memorials, against, you know, you name it, that’s occurring in different cases.
OLASKY: So, what do you think is going to happen here?
SHACKELFORD: I’m more optimistic here because a number of justices have written in their opinions that this is in hopeless disarray.
The only issue to me is they’re not sure what the new solution is and some different things were proposed which they can modify how they want. But I think they know they’ve got to move away from Lemon because it’s just not working, and again, if you’re if you’re the lower court judge, what do you do? You could come down any way you want and so there is no guidance for the lower court judges and guess what that means if you are a local official, you don’t know how it would come out either so guess what you do, you shut down all the religious stuff and so it creates a government that is hostile to religion which is never what the founders wanted.