Midterms: Religious Liberty Momentum at Full Steam

Midterms: Religious Liberty Momentum at Full Steam

Many religious Americans are asking themselves what impact the recent election will have on religious liberty. As president of a national law firm devoted exclusively to protecting our first freedom, I consider that question to be of supreme importance as well. After nearly a decade of religious liberty being relentlessly attacked and relegated to little more than the “right to worship,” the good news is, regardless of Congress, religious liberty is making a comeback.

This is unlikely to change because of one midterm election, and I actually see signs of great hope.

Historically, midterm elections rarely go well for the political party that occupies the Oval Office. In fact, the party of the sitting president has lost seats in the House of Representatives in 36 of the last 39 midterm elections. Since 1862, the sitting president’s party has lost an average of 32 House seats at midterm. Thus, Republican losses this election were typical for a midterm. Despite some claims, the media’s predicted “Blue Wave” didn’t happen.

The results in the U.S. Senate were much better for conservatives. There, Republicans increased their majority. Given that this Senate has been confirming excellent constitutionalist judges to our courts over the past two years, keeping and increasing that current majority in the Senate was great news for religious liberty.

When he ran for office two years ago, then-candidate Donald Trump promised the American people he would nominate constitutionalists to the federal bench. That issue alone motivated large swaths of evangelicals to go to the polls and vote for someone whose demeanor and personal life were not representative of theirs. The reality that the courts under President Obama had been slowly dismantling religious liberty protections by ignoring the clear text of the First Amendment’s guarantee of the free exercise of religion was enough for many to take President Trump at his word. He has more than delivered on that promise.

Starting at the top of the federal judiciary, his first two nominees to the U.S. Supreme Court have impeccable records and promise to be true constitutionalists.

Justice Neil Gorsuch has already indicated strong support of the Constitution’s protections for religious liberty. In his concurrence in the Masterpiece Cakeshop opinion, Gorsuch said, “In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.” He added, “The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.”

He was also one of the five justices who protected religiously based pro-life pregnancy centers from being compelled by the government to carry a message promoting abortion that was contrary to their religious beliefs in this year’s crucial NIFLA v. Becerra opinion.

To understand the critical importance of these nominations, one need look no further than the vicious, politically motivated attacks on the president’s second nominee, Brett Kavanaugh, from those who find his constitutional philosophy threatening. My firsthand experience working with Brett Kavanaugh on a religious liberty case years ago taught me we can trust him with the defense of our first and most sacred right. He is a man of faith himself and his opinions have consistently adhered to our founding principles and a belief that the Constitution exists to prevent government from infringing on the God-given rights it is entrusted to secure.

It is probable that we now have a high court more committed to the Constitution and their proper role as judges than any in nearly 80 years.

And this is just in time. First Liberty Institute alone has three important religious liberty cases before the Supreme Court.

First, the high court recently announced that it will hear our appeal asking the justices to overturn an appalling decision out of the U.S. Court of Appeals for the Fourth Circuit that endangers the Bladensburg WWI Veterans Memorial in Maryland. Humanists want to bulldoze this monument of service and sacrifice because the memorial is in the shape of a cross. The implications for tearing down crosses in Arlington National Cemetery and across the country is chilling.

Second, we’ve filed a petition with the court asking the justices to hear arguments to reverse the Ninth Circuit’s dangerous decision upholding the firing of Coach Joe Kennedy and banning coaches from praying a silent prayer after football games if they are visible to anyone in the public.

Finally, we recently appealed an Oregon state court decision to the Supreme Court on behalf of cake designers Aaron and Melissa Klein. The State of Oregon forced Aaron and Melissa out of business by penalizing them $135,000 for refusing to create a government-approved message. This case can clarify whether speech is truly free if it is government mandated.

But it’s not just the Supreme Court that matters.

While the Supreme Court will hear fewer than 80 of the 8,000 or so cases filed there, nearly 400,000 are filed in federal district courts and courts of appeals annually. Consequently, it is often here where religious liberty cases are decided. Given that this year alone the Supreme Court reversed 75 percent of the decisions by circuit courts of appeals, who sits on those benches has profound implications.

Here, too, the president has a remarkable record, including stellar nominations of outstanding jurists to federal courts, like Jim Ho, Don Willett and Amy Coney Barrett. Already the Republican-controlled U.S. Senate has confirmed 29 Trump nominees to federal appeals courts. Trump-appointed judges now represent one-sixth of the sitting, active federal appeals court judges in the country. This is a remarkable number just two years into office.

Yet, there are still more than 140 vacancies on federal district and appeals courts left to be filled. And more, additional vacancies will arise each month.

It is the U.S. Senate that confirms these nominees. Now, given their increased majority—and since Senate Republicans can accomplish little else given the make-up of the House—we expect the Senate to focus much of its time confirming excellent judges.


The Trump administration is also reversing eight years of anti-religious administrative acts by the executive branch that jeopardized religious liberty.

Since entering office, President Trump has signed an executive order on religious liberty, resulting in excellent subsequent guidelines issued by then-Attorney General Jeff Sessions. The Department of Justice now has an office specifically assigned to investigating cases of anti-religious discrimination. The president’s commitment to religious liberty was also evidenced by the creation of The White House Faith and Opportunity Initiative, reaffirming our national commitment to welcoming the full participation of religious individuals and organizations to serve their local community, just like everyone else.

Religious liberty is the foundation of all liberty. The Founding Fathers placed it first in the Bill of Rights because they knew its primary importance. If government can be allowed to try and force its way between man and God, there is no limit to government authority and no bulwark against tyranny.

We don’t necessarily need a bevy of new religious liberty laws, and a divided Congress is unlikely to pass any protections for our first freedom anyway. We simply need the First Amendment and existing religious liberty protections enforced. That is the job of the executive and judicial branches of government. The advances for religious liberty we have seen in the last two years have been unprecedented. With the executive branch still in place, and the Senate increasing the numbers of excellent federal judges on our courts for life, the next two years offer great hope.

Regardless of who is in office, defending religious liberty laws and the First Amendment’s promise of free exercise is as vital as ever. Having an ally in the White House and judges who abide by the Constitution simply makes that job a little easier.  ©2018 Kelly Shackelford


Kelly Shackelford is the president and CEO of First Liberty Institute, the nation’s largest law firm dedicated exclusively to protecting first Amendment religious freedoms.

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