Why I’m more hopeful than ever on religious liberty
Kelly Shackelford serves as President, CEO, and Chief Counsel of First Liberty Institute, the largest nonprofit legal organization in the country focused solely on protecting religious freedom. Under his leadership, First Liberty has won major cases at the U.S. Supreme Court and in courts across the nation, defending the rights of individuals, houses of worship, and faith-based organizations. A constitutional scholar, Shackelford recently spoke with American Habits Editor Ray Nothstine.
You’re a member of President Trump’s Religious Liberty Commission. Can you give a brief explanation on why the commission is needed and its purpose?
Kelly Shackelford: This is the first time the U.S. has ever had a Religious Liberty Commission, and that alone makes it historic. Unlike most commissions, which typically report to a government agency or department, our task is unique and under the charter, we report directly to the president. Our job is to provide recommendations on how to best preserve and advance religious freedom going forward.
It’s a timely project for America, especially as we approach our 250th anniversary of our Declaration of Independence. Our founders called religious liberty our “first freedom,” and it’s important to make sure we’re headed in the right direction.
We’ve seen a troubling rise in the number of violations across the country. For example, in the last administration, the FBI investigated the Catholic Church and even tried to recruit priests as informants. People have been arrested for praying outside abortion clinics, grandmothers jailed, and SWAT teams sent into people’s homes — all because of their faith. That should never happen in a country built on religious freedom.
The commission is about studying what’s really happening and then offering concrete recommendations so everyone can enjoy the fullest, freest expression of religious liberty. And this isn’t a partisan issue, freedom of conscience and freedom of religion are values nearly all Americans support. That’s the heart of the First Amendment.
We often think of the battle of religious liberty taking place at the U.S. Supreme Court cases or the federal courts. How can state legislatures and even municipal governments better safeguard religious liberty in everyday civic life? In other words, what are some of the most pressing threats happening against religious liberty in many states?
Shackelford: States can do a lot on religious freedom protections. We even have an index. It’s the only peer-reviewed, academic, objective index in the country. It tracks all the laws each state has in place to protect religious liberty. We then compare them across the board and rank states from 1 to 50 based on how strong their protections are.
Lawmakers are starting to recognize they can do much more, and it’s creating a healthy spirit of competition.
Probably the strongest protection a state can adopt is a Religious Freedom Restoration Act. It adds an extra layer of protection for religious liberty by requiring that if the government burdens someone’s religious practice, it must prove two things: first, that it has a compelling interest for doing so, and second, that it is using the least restrictive means possible.
In other words, if the state can achieve its goal without infringing on religious freedom, it must take that path. The burden is on the government to prove that when it imposes something that seriously affects a person’s faith, there truly was no other option. That’s why it’s such an important law. Many states have adopted it, but more than half still haven’t. If I lived in one of those states, my first question to lawmakers would be: why should we have less religious freedom than others? It just doesn’t make sense.
Many do not understand RFRA laws. That was a helpful explanation. I’m in North Carolina, which I believe is ranked 44th. We’re sandwiched between California and New York. North Carolinians should be asking their legislators about that ranking.
Shackelford: It does surprise people. You might assume conservative states would rank higher and liberal states lower, but that’s not always the case. Take Illinois, for example. They’re ranked high. Why? Because years ago, Catholic groups in the state, especially around Chicago, saw hostility on the horizon. While they still had the chance, they worked through the legislature to pass laws protecting religious freedom. That put them in a stronger position.
At one point, Illinois even ranked ahead of Florida. But recently, Florida has been very proactive. After seeing churches locked down during COVID while Walmart stayed open, lawmakers there started passing additional protections. As a result, Florida just surpassed Illinois and now ranks first in the nation for religious liberty safeguards.
The lesson is simple: states that feel complacent because they “seem solid” shouldn’t take that for granted. You never know who will be in control in the future. The time to put these safeguards in place is now, so that people of faith remain protected no matter who holds political power down the road.
I watched the press conference with Gov. Ron DeSantis where he celebrated Florida being ranked #1. He even took a jab at West Virginia for being last. But I thought, given West Virginia’s largely Protestant makeup, maybe they figured they didn’t need these laws. You don’t hear as many of those “bake-the-cake” type cases there. As you noted, states need to plan for changing populations.
That leads me to a cultural question: when states feel the need to pass more laws protecting religious liberty, does that reflect deeper cultural problems? In other words, is it a sign of fragmentation, less respect for neighbors, weaker community bonds, or a decline in the shared understanding our founding generation had?
Shackelford: There’s truth to that. When I started working on religious freedom 37 years ago, the cases looked very different. They weren’t as extreme, and there were far fewer of them. Now, at First Liberty, the number of cases we handle grows every year, and the attacks are beyond anything we could have imagined back then.
Right now, we’re handling multiple cases where pastors are being criminally charged for simply doing what pastors are supposed to do: feeding the homeless, sheltering people on freezing nights, or helping the poor. One pastor in Ohio, Chris Avell, was sentenced to 60 days in jail for refusing to lock his church doors at night when it was 30 below and people were freezing outside. These are not the kinds of cases we ever expected to see.
Part of this goes back to the cultural shifts we’ve seen. For years, the rise of religious ‘nones’ brought a decline in respect for faith and religious liberty. That trend seems to have slowed, but its impact remains.
The Constitution gives a baseline of protection, but states can build on that.
What people often miss is that religious freedom isn’t just important for people of faith. It’s the most fundamental freedom for everyone. If you lose religious liberty, you lose everything else like property rights or freedom of speech. Our founders understood that totalitarianism can’t survive if people hold allegiance to something higher than the state. That’s why religious freedom is always the first target when oppression sets in.
We often hear from supporters, even those who aren’t religious, who get this point. Many come from other countries and know firsthand that when religious liberty is lost, all other freedoms soon follow. Sadly, that understanding has been lost for many Americans, even people of faith, who often see it only as the right to live out their beliefs. But it’s so much bigger than that.
The good news is that the law is still on our side. Religious freedom is protected in the Constitution, in state laws, and in federal statutes. At First Liberty, we win more than 90% of our cases. But the key is that people must be willing to stand up and fight when government overreach occurs. If they do, the protections are there, and we can win.
In an era where the very definition of rights is often being rewritten, many times to include claims never recognized in our constitutional tradition, how should courts weigh these against the long-established right to religious liberty, particularly when state laws and federal standards could be at odds?
Shackelford: The whole point of the Free Exercise Clause, and of free speech as well, is that they are deeply individual rights. The Constitution was written to protect individuals when those in power want to silence or crush them. That’s exactly what our founders intended: the fullest protection of free speech and religious liberty possible.
Remember, many of them came here as Congregationalists, Baptists, Quakers, and other faiths. They simply wanted to live out their beliefs without government interference. That’s still what we’re fighting for today.
Even with today’s diversity, the principle remains the same: you don’t have to agree with another person’s beliefs, but you also don’t have the right to silence them. The First Amendment exists to protect people’s right to say things or hold beliefs we may think are odd, wrong, or even offensive. That’s what it means to live in a free country.
You’ve had notable success winning religious liberty cases before the Supreme Court and other federal courts. But if cases that seem so clearly in favor of religious freedom are even making it that far, what does that say about where the breakdown is occurring?
Shackelford: First, I’d say there’s a lot states can do. That’s why we created ReligiousLibertyInTheStates.com — to show the laws each state has and the protections they can add. The Constitution gives a baseline of protection, but states can build on that. Every state should, because why wouldn’t you want to provide the fullest religious freedom possible? Unless you want government control over religion, and I’ve never met many people who do.
Second, it’s important to remember that very few cases ever reach the Supreme Court. Out of roughly 7,000 requests last year, the Court heard only 56. So, while we’ve had success there, most religious liberty cases never make it that far. For the people in those cases, the process is incredibly tough. Take the Sweet Cakes case out of Oregon. That baker has been in litigation for 13 years because she declined to make a same-sex wedding cake. The case has gone up to the Supreme Court twice and been sent back down. That’s not real religious freedom if you must endure over a decade of lawsuits just to defend your beliefs.
And that doesn’t even count the many cases that never rise high enough. Judges often look for procedural reasons to dismiss them, because they know these cases are controversial and could anger half the country. That’s a serious problem.
This is one of the issues the Religious Liberty Commission is already addressing. Religious freedom isn’t meaningful if cases drag on for 14 years or get dismissed repeatedly without ever tackling the core issue. We need to ensure the system can deliver justice, not just prolong battles until people give up.
That’s a good point, even if you have an advocate who is handling all your legal fees for free, your livelihood could be destroyed and blowback in the community. You can’t really experience it unless you’re living through it.
Related to that, do you ever feel like there are moments that you are a civic educator to a judge or a court?
Some might not realize this, but it’s possible some judges are not deeply educated in America’s tradition of religious liberty given changing cultural norms and a loss of our heritage on religious liberty.
Shackelford: I think that happens quite a bit. At First Liberty, all we do is religious freedom. It’s our specialty. We’ve been doing this for decades, so we know the history and the law inside and out. But for most judges, this isn’t their everyday work.
If you’re a state judge, you’re usually handling car accidents, insurance disputes, or contract claims. Religious liberty cases are an entirely different animal. The same goes for federal judges. They rarely see these cases compared to the many other types that fill their dockets. So yes, it’s usually an education process, helping them understand what the law says and the history behind it.
That’s why the Supreme Court’s decision in the Kennedy case was so important. The Court clarified that in Establishment Clause cases, the standard is history and tradition. If a religious practice has been part of American life since the founding, it should be presumed constitutional. That makes sense. How can anyone argue against prayer at an event when the very founders who passed the First Amendment opened their own sessions with a chaplain, and even paying him a salary?
Most judges aren’t historians, and they certainly aren’t experts on America’s religious heritage. That’s why part of our work will always involve teaching and reminding courts of that history, not to mention grounding them in the tradition that shaped our country.
You brought up the Declaration of Independence anniversary coming up. How optimistic are you about the future of religious liberty in America?
Shackelford: I’m more optimistic now than I’ve ever been. After 37 years in this work, the victories we’ve seen recently at the Supreme Court are nothing short of landmark.
Take Carson v. Makin. That case established that states can’t bar parents from choosing religious schools in school choice programs. From now on, every school choice program must allow families to pick the school that’s best for their kids, even if it’s a Christian or another faith-based school. That’s huge.
Or look at the Groff case, which reset the standard for religious freedom in the workplace for the first time in 50 years. Thanks to that ruling, employees now truly have protections to live out their faith at work.
Then there’s the Coach Kennedy case. Most people know it as the case that let a high school football coach return to the field and pray on one knee after games. But what often gets overlooked is that the decision also overturned the Lemon precedent. For decades, Lemon fueled hostility toward religion in public life, forcing schools and cities to take down nativity scenes, menorahs, or even hide the Ten Commandments. None of that came from the Constitution or the founders. It all stemmed from the result of Lemon. With that case gone, we’ve erased more than 7,000 citations that distorted religious liberty over the last half century.
When you step back, these are dramatic shifts in favor of religious freedom. And what’s especially encouraging is that this legal momentum seems to be happening at the same time as a spiritual renewal among young people. We’re seeing numbers we’ve never seen before — more young men attending church than young women for the first time in American history, and Generation X showing explosive growth in church participation.
To me, it feels like we may be on the edge of a third Great Awakening. On one hand, we’re opening the doors wider for religious freedom under the law. On the other, we’re watching a renewed hunger for faith and worship in younger generations. That’s a powerful combination.
