Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty, which submitted an amicus brief in support of the respondents in The American Legion v. American Humanist Association.
When the U.S. Supreme Court granted certiorari in the Bladensburg cross case, many church-state separationists feared a sweeping decision that would fundamentally alter the court’s religious liberty law in harmful ways. The Baptist Joint Committee for Religious Liberty (BJC) was particularly concerned about arguments that would desacralize the pre-eminent symbol of Christianity in order to justify its display on government land. In a brief written by church-state scholar Douglas Laycock and joined by Christian and Jewish organizations, BJC urged the court to reject the radical arguments of the government and its allies. Simply put, “The cross is not a secular symbol, and neither the Commission nor the Court can make it so.”
After briefing and oral argument, it seemed the court might take a narrower path — one that would retain this particular decades-old cross without clearing a constitutional path for similar government monuments today. That is exactly what the court did in a splintered 7-2 decision that reflects sharp divisions on the court about the history and scope of the religion clauses. The court ruled that this particular cross can remain in place on government property. Importantly for our pluralistic society and the promise of equality without regard to religion, the decision does not support the constitutionality of Christian-only monuments sponsored by government today.
Avoiding religious divisiveness has long been a concern of the First Amendment, which prohibits any law “respecting an establishment of religion” and protects the free exercise of religion. These religious-liberty provisions are credited for keeping the government itself from advancing religion, as well as for preventing the government from undue interference or involvement in religious matters. In general, they protect religious liberty by keeping government out of religion, at least for the most part.
But the Supreme Court is often deeply divided on the meaning and application of religious-liberty law, as this decision illustrates. The separation of the institutions of religion and government, which encapsulates our constitutional design, harkens to experience from the founding era, including the mistreatment of Baptists and other religious dissenters. It has provided religious freedom often envied by those in other countries. But in public debates, separation is also routinely denigrated as hostility toward religion, particularly by the Christian majority that in many cases has taken its freedom and privilege for granted. Justices have often noted the difficulty in striking the right balance and avoiding public misperceptions.
The Supreme Court’s establishment clause jurisprudence is also famously complex. The court applies a variety of tests to different types of cases. The best known is the three-part Lemon test, which has been the target of critics on and off the court. That criticism is now catalogued in the court’s opinion, an opinion that thankfully does not disregard the relevance of government purpose and effects in deciding the constitutionality of a government-sponsored religious display.
Instead, the majority decision, written by Justice Samuel Alito, relies heavily on the longstanding nature of the memorial to uphold its constitutionality. Alito emphasized the facts of this particular memorial that warranted a finding of constitutionality when weighed against the divisiveness of removal. The memorial was dedicated more than 90 years ago and remained unchallenged for decades. The memorial’s design stemmed from the context of World War I. It was dedicated to a particular group of individual soldiers from the area (at least originally); its history lacked proof of explicit intent to disrespect diversity and divide citizens; and its longstanding presence made it a recognizable community landmark valuable to the community’s identity.
Under these circumstances, the majority found that removing the cross would not appear neutral toward religion, but instead would appear to evince hostility and threaten divisiveness that the religion clauses are meant to avoid, especially to the local community.
While the decision maintains a massive Christian symbol on government land, two explicit threats were avoided. First, the court rejected arguments to abandon all concern for neutrality among competing faiths by limiting its holding to the past. Second, the court avoided relying on false claims that the cross has an objective and secular meaning as a universal symbol for sacrifice.
It is foreseeable that advocates who favor government-sponsored religion will use the court’s decision upholding the 90-year old Bladensburg cross to reach for greater changes in the law. They will confuse the role of the facts in this case with the proper role of history in establishment clause jurisprudence to continue to argue for a “history and tradition” test. The decision, however, does not clear a path for similar monuments in the future. The majority opinion states: “Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.”
Justice Ruth Bader Ginsburg filed a powerful dissent, joined by Justice Sonia Sotomayor, from which she read a portion from the bench. By documenting the massive nature and undisputed prominence of the cross in a busy intersection, she countered any notion that this particular memorial can be seen as having only some incidental religious significance. Neither its context nor its symbolism is analogous to cases involving the Ten Commandments. She aptly described the majority’s decision as eroding the court’s commitment to neutrality, at least with regard to longstanding monuments, symbols and practices that now appear to enjoy a presumption of constitutionality.
The dissent reiterates and expands upon what the majority acknowledges: The cross is a Christian symbol and has been since at least the fourth century. Citing from the BJC brief, Ginsburg described the specific and exclusive meaning of the cross: “The cross is the central symbol of Christianity, invoking the central theological claim of Christianity: 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.” Because it symbolizes these beliefs, the cross is a common marker for Christians and not for those of other faiths.
Ginsburg’s dissent explains that a starkly religious message like that symbolized by the Bladensburg cross is not diminished because it dates to World War I, when crosses were common grave markers for U.S. soldiers overseas, noting that the graves of Jewish soldiers were marked with the Star of David. Citing history and precedence, she explains the essential role of government neutrality in protecting individual religious liberty without watering down religious messages.
Honoring veterans does not require altering our country’s commitment to religious liberty, which demands government neutrality among different religious traditions. Thousands of war monuments demonstrate that. Regardless of how this case will be used beyond the specific contexts of religious displays, the majority opinion is commendable for clarifying the important distinction between religious expression that reflects an aspect of an individual’s chosen faith and a government effort to sponsor a religion-specific monument to honor those who would not choose it.
While it is difficult to reconcile the promise of religious liberty for all while upholding a massive Latin cross on government land, the court’s narrow opinion should limit the potential damage of its ruling. The court was right to avoid adopting any of the petitioners’ secular rationalizations for the cross and their poorly articulated tests that would have given carte blanche to erect new crosses.
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