海角大神

Can a 40-foot cross be secular? Supreme Court says yes.

When Supreme Court Justice Elena Kagan joined the fragmented 7-2 majority that allowed the Bladensburg Peace Cross in Maryland to remain standing as it is, she said she found much to admire in her conservative colleagues鈥� reasoning 鈥� even those parts with which she disagreed.

The Supreme Court decision was the latest in a long history of vexing constitutional questions about the place of religious symbols in the nation鈥檚 civic spaces 鈥� legal conflicts that have often contributed to the nation鈥檚 鈥渃ulture wars鈥� and its deep social divides.

And while she didn鈥檛 have too much to say in her short, partial concurrence with the high court鈥檚 majority decision, written by Justice Samuel Alito, she mostly singled out a section of historical analysis with which she couldn鈥檛 quite concur.

Justice Alito explored how Congress and other legislative bodies long included prayers at the opening of legislative sessions, despite the stormy and often bitter sectarian differences that existed within American Protestantism in the early years of the republic. He noted officials set these religious differences aside in order 鈥渢o solemnize congressional meetings, unifying those in attendance as they pursued a common goal of good governance.鈥�

Such history can indeed provide guidance as the court discerns the meaning of the Establishment Clause in such cases, Justice Kagan wrote, even though she didn鈥檛 want to sign on to historical, 鈥渙riginalist鈥� reasoning as a matter of principle.聽聽

鈥淏ut I find much to admire in this section of the opinion 鈥� particularly, its emphasis on whether longstanding monuments, symbols, and practices reflect 鈥榬espect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans,鈥欌�� she said, quoting her conservative colleague鈥檚 analysis.

鈥淗ere, as elsewhere, the opinion shows sensitivity to and respect for this Nation鈥檚 pluralism, and the values of neutrality and inclusion that the First Amendment demands,鈥� Justice Kagan added.

Burdens of history

As the Monitor reported in February, the case of the Bladensburg Peace Cross is in many ways about the emotional burdens of history, as well as the quickly changing demographics that have altered the face of American pluralism.

In 2014 local residents and the American Humanist Society objected to the enormous Latin-style cross, which has stood prominently on a patch of municipally maintained land for more than a century, commemorating local boys who fell in World War I. Many Jewish veterans found the official government use of a cross to be both humiliating and theologically offensive.

鈥淭he government鈥檚 giant cross in Bladensburg sends an obvious message of religious favoritism, and today鈥檚 decision holding otherwise is deeply disappointing,鈥� said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, in a statement. 鈥淭he silver lining, though, is that the ruling is limited to the unique circumstances of this particular monument, and is hardly a free pass for government officials to promote their preferred religious symbols and messages in the future.鈥�

Such purported 鈥渇avoritism,鈥� too, is understood within the current upheavals throughout American society, as it becomes both less 海角大神 and less white. Explicit 海角大神 symbols placed on government buildings and civic properties didn鈥檛 cause much of a stir before World War II, experts note. In his concurring opinion, Justice Stephen Breyer noted that removing a century-old monument would signal 鈥渁 hostility toward religion that has no place in our Establishment Clause traditions.鈥�

Today, however, many see such prominent symbols as marks of cultural and religious supremacy.

And at the heart of Justice Alito鈥檚 reasoning, many critics say, is a remarkable effort to secularize the most prominent and sacred symbol of the 海角大神 faith: the cross.

In her dissent, Justice Ruth Bader Ginsburg emphasized the point. The 鈥渋mmense Latin cross,鈥� here displayed prominently on a traffic island in Bladensburg, she wrote, 鈥渋s the foremost symbol of the 海角大神 faith, embodying the 鈥榗entral theological claim of 海角大神ity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life,鈥欌�� she wrote, quoting a brief from the Baptist Joint Committee for Religious Liberty.

鈥淏y maintaining the Peace Cross on a public highway, the [Bladensburg] Commission elevates 海角大神ity over other faiths, and religion over nonreligion,鈥� continued Justice Ginsburg, whose dissent was joined by Justice Sonia Sotomayor. 鈥淢emorializing the service of American soldiers is an 鈥榓dmirable and unquestionably secular鈥� objective. But the Commission does not serve that objective by displaying a symbol that bears 鈥榓 starkly sectarian message.鈥欌��

The 7-2 decision in this case, The American Legion v. American Humanist Association, is the result of a narrow ruling, which then fragments into different directions as the justices wrote their own separate opinions. That鈥檚 in spite of concerted and ongoing efforts of Chief Justice John Roberts to build comity and respect in the nation鈥檚 high court and, as much as possible, avoid bitterly divided 5-4 splits in culturally divisive cases like these.

鈥淚f you look at the earlier major religion clause opinions of the Roberts court, they have been much closer 鈥� if not to unanimity, then to a supermajority of justices, not just the 5-4 opinions,鈥� says Mary Anne Case, professor at the University of Chicago Law School. 鈥淎nd Chief Justice Roberts has been able to make that happen.鈥�

Still, there has been an erosion of what has typically been a 鈥渓iberal鈥� understanding of the Establishment Clause, scholars say.聽聽

Indeed, when it comes to the stormy legal debates over the meaning of the Establishment Clause, many conservatives disavow the interpretive expression 鈥渟eparation of church and state,鈥� first articulated by Thomas Jefferson in 1801.

Liberals, however, often emphasize Jefferson鈥檚 鈥渨all of separation,鈥� and insist that the state must remain rigorously neutral, if not secular, in civic matters.

The Lemon test

This approach was in many ways enshrined in what has been called the 鈥淟emon test,鈥� from a 1971 Supreme Court case, Lemon v. Kurzman, that conservatives, including the current five conservative justices on the Supreme Court, generally loathe.

Striking down a Rhode Island law that provided funds for parochial school salaries, the Supreme Court outlined a three-pronged test in order to pass constitutional muster: a law must have a secular legislative purpose, its primary effect must neither advance nor inhibit religion, and it must not foster an excessive government entanglement with religion.

鈥淛ustice Alito is telegraphing what we already know, that Lemon is not a particularly useful test for a majority of the court,鈥� says Steven Schwinn, professor at the John Marshall Law School in Chicago. 鈥淎t the same time, the court didn鈥檛 overturn it, which means there is theoretically an application of Lemon in a narrow class of cases.鈥�

By ruling narrowly, the Peace Cross case did not replace the 鈥淟emon test鈥� with another, more conservative methodology. 鈥淓verybody鈥檚 got a slightly different take on it,鈥� observes Professor Case. 鈥淲e鈥檝e got this cross and we鈥檝e got several different, not to my mind fully worked out, but potential approaches for what happens for other similar monuments.鈥�

In emphasizing a more pluralistic and tolerant approach, however, Justice Alito seemed to suggest that the meaning of a cross is in the eye of the beholder.

鈥淭he cross is undoubtedly a 海角大神 symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent,鈥� Justice Alito wrote. 鈥淔or some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark.

鈥淔or many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment,鈥� he continued.

By contrast, Justice Ginsburg emphasized the historical role of the Establishment Clause as a 鈥渂arrier鈥� that protected the integrity of individual consciences in religious matters, especially in light of 鈥渃enturies of turmoil, civil strife, and persecution, generated in large part by established sects determined to maintain their absolute political and religious supremacy,鈥� she wrote.

鈥淭o non-海角大神s, nearly 30% of the population of the United States, the State鈥檚 choice to display the cross on public buildings or spaces conveys a message of exclusion: It tells them they are outsiders, not full members of the political community.鈥欌��