History Began to Change Last JAN 18

Jan 18, 2023

One year ago today, as Anita and I prepared to appear before the U.S. Supreme Court, I captured a photo of the sun breaking through the early morning clouds. As we watched the day dawn on January 18, 2022, two vibrant red beams formed the shape of a cross right over the Supreme Court building. In just a few hours, I would enter that stately building to present oral argument regarding Boston’s censorship of the Christian flag in the case of Shurtleff v. City of Boston. We later entered the courtroom with hope and a desire to finish the fight we started nearly 33 years ago.

Four months later, the High Court delivered a ruling that would fundamentally change America. Read on to learn more about our decades of legal battle, and what we must do now to protect our precious religious liberty. —Mat

Liberty Counsel fights every day, in courtrooms around America and at the U.S. Supreme Court, defending life, God’s design for marriage and the family, and religious freedom. Our legal services are always free. Now, a special Challenge Grant has been established to DOUBLE THE IMPACT of every donation made today. Please, help us fight for freedom in 2023!

Thirty-three years ago, when Anita and I founded Liberty Counsel, we faced an uphill battle. In 1971, an activist U.S. Supreme Court invented the so-called “Lemon test,” which was used to eliminate Christianity and Judeo-Christian viewpoints from the public square and government property. Then in 1990, the High Court issued a ruling that substantially weakened the free exercise of religion under the First Amendment.

The activist Justices had created a completely subjective test, determining whether religious expression was “allowed” based solely on whether someone witnessing the event might be offended.

The Court’s rulings at that time not only perverted the intention of the Establishment Clause, they also effectively became wrecking balls to religious symbols, displays, speech and other forms of expression.

Using arguments from the civil rights battles of the 1960s, we began exploring ways to tear down the artificial wall the Justices had propped up to stop religious expression.

One year ago today, on January 18, 2022, I entered the Court, prepared to argue on behalf of Hal Shurtleff and Camp Constitution. As the case was called, I began my argument and never looked at my notes. Instead, I believe the Holy Spirit led the way.

On May 2, 2022, the Supreme Court issued a rare 9-0 unanimous ruling in our favor sending a clear message: Government may NOT discriminate against Christian viewpoints!

The Court stated that the City of Boston violated the Constitution by censoring Camp Constitution’s private flag in a public forum open to “all applicants” merely because the application referred to it as a “Christian flag.”

Contrary to the City of Boston’s position that flying the Christian flag violated the Establishment Clause, the Supreme Court ruled that censoring the Christian flag was, in fact, religious viewpoint discrimination and violated the First Amendment’s Free Speech Clause.

Months before the Court issued its unanimous decision, I predicted a favorable outcome. I wrote, “Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional. This case will set national precedent.”

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The High Court agreed. In the opinion for our Shurtleff case, Justice Gorsuch aptly wrote: “Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own ‘reasonable observer’ avatar. In this game, the avatar’s default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable.”

“To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it ‘endorses’ religion. If so, game over,” Gorsuch opined.

Besides triggering review of local and state government flag-flying policies nationwide, the Shurtleff decision was cited in the 6-3 SCOTUS ruling in favor of high school football coach Joe Kennedy, who was fired for silently praying on the field after games. We filed an amicus brief in that case.

The late Justice Antonin Scalia once compared Lemon to a “ghoul in a late-night horror movie.” For 51 years, Lemon had been used to censor religious words, symbols, images and displays. The dreadful Lemon test is now no more! The Shurtleff decision combined with the Coach Kennedy ruling set a new standard that provides greater protections for Christian and religious viewpoints.

In the opinion, the High Court finally buried the Court-made Lemon test, citing Liberty Counsel’s 9-0 Shurtleff v. City of Boston decision.

The facts in both cases were essentially the same — the government used Lemon to censor Christian viewpoints. Those days are gone. 

The Justices referred to our Christian flag case in the Coach Kennedy opinion, saying: “In fact, just this Term the Court unanimously rejected a city’s attempt to censor religious speech based on Lemon and the endorsement test (See Shurtleff, 596 U.S.).”

Praise God the Supreme Court has reversed the errors of previous “activist” Justices! The Court has restored the First Amendment, preserving the right to religious freedom and speech!

We won all four cases we argued or briefed before the U.S. Supreme Court last term. These victories will have generational impact.

Please help us continue fighting for life and freedom by supporting our legal fund. Every donation made will be DOUBLED IN IMPACT by a generous Challenge Grant. Please give today!

Mat Staver
Founder and Chairman
Liberty Counsel




Sources:

“SCOTUS Rules in Favor of Coach Kennedy.” Liberty Counsel, June 24, 2022. Lc.org/newsroom/details/062422-scotus-overturns-roe-v-wade.

Staver, Mathew, Anita Staver, Horatio Mihet, Roger Gannam, and Daniel Schmid. “Supreme Court of the United States on Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF of AMICUS CURIAE LIBERTY COUNSEL in SUPPORT of PETITIONER Counsel for Amicus.” March 1, 2022. Lc.org/PDFs/Attachments2PRsLAs/2022/030222KennedyAmicusBrief.pdf.

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