Another defeat for the First Amendment: Supreme Court rules that the “Bladensburg cross” is not a religious symbol

The strategy of American courts in their desire to continue allowing religious incursion into the government—be it “In God We Trust” on our money or religious symbols on public land—has been to pretend that religious symbols and mottos morph into nonreligious, historical and secular icons over time. This is patently bogus, an offense to anybody with two neurons to rub together.

And so, in an important decision about the First Amendment, the U.S. Supreme court ruled today that a giant cross on public land in Maryland, commemorating war dead, was constitutional. And the vote of the Roberts court, though opinions were fractured, was 7-2 (only Ginsburg and Sotomayor dissented; where was Kagan?). Read the Washington Post‘s take by clicking on the screenshot below. The full range of opinions can be found in a pdf here.

As usual, the pretense is that the cross is no longer a wholly religious symbol. Here are the words of Justice Alito, who wrote for the majority:

The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent . . .  For 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.

For 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.

In other words, religious symbols are okay on public land because they have assumed other meanings as well. And we must have “respect and tolerance” for believers. But why a cross rather than a religion-neutral monument? Would the court be so tolerant of a Jewish Star of David, or a statue of Ganesha? f course not, because they see America as a “Christian nation”.

The Freedom from Religion Foundation calls the decision a “shameful legacy for the Roberts Court”, and it is, for they are dismantling one of the most important amendments to the Constitution.  And the FFRF adds this:

Ominously, instead of focusing on legal principles, Alito looks to “history for guidance,” trotting out typical Religious Right examples — such as legislative prayer, the day of thanksgiving Washington declared (which the court erroneously called a “National Day of Prayer”), some religious language in the Northwest Ordinance, and George Washington’s Farewell Address’ “religion and morality.” The central test for determining these violations, known as the Lemon test, was set aside in favor of the argument from history, though not explicitly overturned by a majority of the justices.

“The passage of time gives rise to a strong presumption of constitutionality,” writes Alito.

In an elegant and thoughtful dissent joined by Justice Sonia Sotomayor, Justice Ruth Bader Ginsburg gets it right.

“Using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized,” the dissent states. “By maintaining the Peace Cross on a public highway, the [Maryland-National Capital Park and Planning] Commission elevates Christianity over other faiths, and religion over nonreligion.”

Ginsburg persuasively lays out how such public crosses alienate a large and fast-growing segment of the U.S. population.

“To non-Christians, nearly 30 percent of the population of the United States (Pew Research Center, America’s Changing Religious Landscape 4 (2015)), the state’s 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,’” she writes.

Yes, Ginsburg and Sotomayor got it right. It’s still a cross, and still a religious symbol, and the rest of the court, in their desire to tear down the wall between church and state, is pretending that the cross on which Jesus supposedly died isn’t really religious—in a religious way, that is.

As Andrew Seidel (an FFRF lawyer) told the audience in our Chicago discussion nine days ago, we can expect this behavior to continue for a long time, as the conservatives on the Roberts court (save Thomas) are pretty young. But he also thinks that the inevitable secularization of America will, in the future, pull the pendulum back.

I hope so, but I don’t share his confidence. Americans, with their sense of fair play, may see decisions like this as a meaningless sop to the faithful (note Alito’s call for “respect and tolerance” for Christians). But they’re not meaningless, and that’s why the founders created the First Amendment.

87 Comments

  1. ThyroidPlanet
    Posted June 20, 2019 at 1:46 pm | Permalink

    “For some”… “for others”

    Wikipedia flags these phrases as “weasel words”.

    Welcome to American Civil Religion.

    I like how after all that, the cross is still an “undoubtedly religious symbol”. Give Alito an honorary Theology degree.

  2. EdwardM
    Posted June 20, 2019 at 1:59 pm | Permalink

    It seems to me that there is an easy solution; move religious monuments off public land. Churches own an enormous amount of property in the US where these can be re-located. There are many private citizens who would agree to host them as well.

    Do this to and the monument remains, respect (if it’s due) is paid to whomever the monument is important to and the nation can begin to live up to its principles. It’s a win – win, if you ask me….of course, nobody did.

    Absolutely no chance of this ever happening.

    • eric
      Posted June 20, 2019 at 2:33 pm | Permalink

      Engineering-wise, AIUI that solution wouldn’t work for this monument. It’s 100-year-old concrete, and it’s really big. So you try to move it, it’s likely just to fall apart (in a dangerous manner).

      But yes, that seems a reasonable solution in other cases…and it doesn’t excuse SCOTUS not defending the 1st amendment in this case.

      • jhs
        Posted June 20, 2019 at 2:47 pm | Permalink

        How about removing the crossbar?

        • Posted June 20, 2019 at 3:12 pm | Permalink

          Or pull a Magritte and put a sign under it with the words “Ceci n’est pas une croix.”

          • jhs
            Posted June 20, 2019 at 6:04 pm | Permalink

            or a sign with the words “this is the Chinese character 十 (shi, ten-10).” :)

          • infiniteimprobabilit
            Posted June 23, 2019 at 1:28 am | Permalink

            When I saw the french I thought for a moment you were going to suggest adding another crossbar and turning it into a Cross of Lorraine.

            But I’m not sure how well that would go down… 😉

            cr

    • Ken Kukec
      Posted June 20, 2019 at 3:16 pm | Permalink

      That’s precisely the position advocated by the tongue-in-cheek Satanic Temple, as explicated in the captivating documentary released earlier this year, Hail Satan?

  3. Ken Kukec
    Posted June 20, 2019 at 2:27 pm | Permalink

    And the vote of the Roberts court, though opinions were fractured, was 7-2 (only Ginsburg and Sotomayor dissented; where was Kagan?)

    Yeah, and where was the fourth liberal member of the Court, justice Stephen Breyer?

    Breyer, joined by Kagan, wrote a special concurrence, an opinion that would essentially limit this case to its facts, based on some argle-bargle about how the Latin (or “Peace”) cross was seen as a uniquely secular symbol, denuded of its religious content, at the end of the War to End All Wars.

    He’s essentially saying that that particular cross doesn’t have to go, but don’t think such religious symbolism would pass muster nowadays. He’s speaking only for himself and Justice Kagan in that regard, of course, not for the other five (conservative) justices in the majority, who’re likely never to see a religious symbol they won’t find some means of excusing.

    • BJ
      Posted June 21, 2019 at 10:14 am | Permalink

      I agree with Kagan and Breyer that, insomuch as a memorial was not meant to be religious, it should not be considered as such. I would say that a swastika shouldn’t be considered hate speech/intimidation/harassment if it’s part of religious iconography rather than as a paean to Nazism. The fact that people might interpret such a swastika in an unintended way does not make their interpretation correct.

      • infiniteimprobabilit
        Posted June 23, 2019 at 1:35 am | Permalink

        That would be relevant in large parts of Asia where the swastika was a ‘good luck’ symbol for centuries before Adolf appropriated it (and still is).

        cr

  4. eric
    Posted June 20, 2019 at 2:31 pm | Permalink

    It’s frankly not as bad as I thought it would turn out, though admittedly I had low expectations for this court.

    What I mean: First, at least the conservatives on the court stated that new monuments wouldn’t qualify for the “it’s both!” defense. So we don’t have to worry about Christian bigots using this case to justify creating more Christian symbols on public land. Second, they didn’t go with the ridiculous “it’s not religious, it’s just coincidentally cross-shaped” logic, which other courts have done and which would’ve opened the door to many more “it refers to God but it’s not religious” type claims by Christians.

    So, not a win in my book. But perhaps a ‘closing of this chapter’ by which I mean they leave current violations in place while not giving any legal foothold for new violations to be perpetrated.

    • Posted June 20, 2019 at 8:51 pm | Permalink

      What you describe is essentially the dual ruling of Van Orden / McCreary. It’s not ideal, but it’s what we’ve got — effectively a moratorium on new displays with the old ones grandfathered in.

      AHA was foolish & reckless to try and alter that.

  5. jhs
    Posted June 20, 2019 at 2:44 pm | Permalink

    We now may “officially” claim that Christmas is no longer a religious holiday.

    • GBJames
      Posted June 20, 2019 at 3:04 pm | Permalink

      For very many (most?) of us it isn’t!

    • Ken Kukec
      Posted June 20, 2019 at 3:07 pm | Permalink

      Haven’t you heard? Donald Trump made it safe again for real Americans to say “Merry Christmas” — reclaiming the expression from the politically correct atheistic Grinch who was forcing Macy’s and Gimbels and every man, woman, and child in the US to say “Happy Holidays” under penalty of law.

      In the finest spirit of Christian humility, he told us so himself.

  6. Randall Schenck
    Posted June 20, 2019 at 2:56 pm | Permalink

    Yes, this country is going to hell. To hell and religion but only their version of it. Pathetic and disgusting is all I can say and that goes for this court as well. When lawyers reach for their bibles to hear a case they are no longer lawyers, just political hacks.

  7. rustybrown
    Posted June 20, 2019 at 3:01 pm | Permalink

    This is a sound ruling. Who is this harming?

    • Posted June 20, 2019 at 4:44 pm | Permalink

      Here’s someone lacking the requisite two neurons. Who is it harming? How about the CONSTITUTION, rustybrown. Should we have mandatory Christian prayers in school, like we used to? Who is that harming?

      People like you don’t belong on this site. Not enough neurons.

    • Adam M.
      Posted June 20, 2019 at 6:30 pm | Permalink

      I don’t think the ruling harms any people directly, but it does violate the long-standing (but oft-violated) principle of separation of church and state and sets more precedent that religion and specifically Christian religion can be privileged by the government. That precedent might harm non-Christians in the future, but it’d be hard to say for sure.

  8. GBJames
    Posted June 20, 2019 at 3:03 pm | Permalink

    A shameful day for the Supremes.

  9. Robert S.
    Posted June 20, 2019 at 3:10 pm | Permalink

    The appeal to tradition is worse than bad. It illuminates and aggravates the problem. It says that if you can use your power to maintain unconstitutional privilege for long enough, you can get rewarded by having it permanently enshrined as “tradition”.

    • Posted June 21, 2019 at 11:59 am | Permalink

      I would ask Mr. Alito what would “override” the presumption, and how much time is needed for this presumption to occur in the first place.

      • Jon Gallant
        Posted June 21, 2019 at 12:29 pm | Permalink

        A well-known saying explains this matter.
        “First time’s a fluke; second time’s a coincidence; third time’s tradition …”

  10. Steve Gerrard
    Posted June 20, 2019 at 3:28 pm | Permalink

    I can accept the Kagan argument, that it is historical as determined on a case by case basis. It would make sense, for instance, if the “49 World War I veterans from Prince George’s County” that the cross memorializes were all Christian.

    If it really is the case that only historical monuments are allowed, and no new ones, it seems acceptable to me. I don’t have much faith in this court to only apply the ruling to historical crosses, though.

    • Ken Kukec
      Posted June 20, 2019 at 4:09 pm | Permalink

      Yeah, I don’t think that’s the way the five conservative justices on the Court see it. They seem to think that the Establishment clause allows the government to favor religion over non-religion, in deference to this nation’s supposed religious foundations, so long as it doesn’t play favorites among various religions.

      Whenever a decision like this comes down, I always skim over the slip opinions to see how Justice Merrick Garland voted … then I take a moment or two to contemplate what a lowdown rotten sonuvabitch Mitch McConnell is.

      • Posted June 21, 2019 at 12:00 pm | Permalink

        That’s the position exactly that I ran into years ago when I used to debate religion online.

    • davelenny
      Posted June 20, 2019 at 4:15 pm | Permalink

      Setting aside the 1st Amendment, is there an approximate similarity here to statues of Confederate figures? The statues come from a part of US history not regarded with pride by many Americans, even considered insulting to contemporary Americans, but still a part of US history.

      • Randall Schenck
        Posted June 20, 2019 at 5:18 pm | Permalink

        I do not see how this religious cross has anything to do with the civil war statues really. The cross on public property is a constitution thing – first amendment. The historical crap comes from the supreme court hacks. The civil war statues were primarily put up years after the war. And they were jim crow period stuff. Offensive to most all African Americans as well. Loving memories for the racists who are all over the place in the south. Many northerners think of them as traitors at worst and enemy at best. Putting up statues of the enemy is usually not done. Do you see many statues of Hitler in the parks? Not even in Germany.

        • max blancke
          Posted June 22, 2019 at 1:03 pm | Permalink

          War memorials tend not to be put up on the day of the battle. The are often established on significant anniversaries of the event. Sometimes, veterans leave funds for a memorial to their departed friends in their will.

          A young soldier fighting in the civil war might well be reaching retirement age in 1915, which was also the 50 year anniversary of the end of the war. The last national reunion of civil war vets was in 1938. The centenary of the end of the war was 1965.

          The confederate memorial in our town was dedicated in 1915, which is fairly common for the reasons listed above.
          That monument was not about Jim Crow, or even glorification of the war or it’s causes. We never had Jim Crow laws or attitudes, as far as I have been able to determine.
          It is kind of sad that monuments erected to memorialize the sacrifices of the dead are being reinterpreted as malevolent provocations.
          I am sure there are, in some places, monuments built because of racism or hate. But painting the whole of those monuments with that same brush is just wrong.

          One of the reasons that they were able to build those memorials is that they had put the issues of the conflict behind them. The widows of those memorialized received federal pensions, as did the surviving veterans. Quite a few of them went into the US military. The veterans reunions frequently included members of both sides, who were there to reminisce about those who died, and the notable deeds of those who survived.

          I am sure they would be astounded at the sentiments being ascribed to them for their building monuments to those who served and died. At least on our memorial, the cause of slavery is not celebrated or mentioned. It is literally a memorial to “the boys in grey” of our county who died in the war. Likewise, the Vietnam memorial does not advocate the reestablishment of French colonialism.

    • eric
      Posted June 21, 2019 at 6:34 am | Permalink

      I’m guessing (just from this ruling) that the SCOTUS conservatives wouldn’t defend some newly-minted symbol. The problem is the thousands of lower court conservative judges who will ignore “it’s undoubtedly a cross and a religious symbol” and keep claiming there’s no religion in crosses or mentions of God.

  11. Posted June 20, 2019 at 3:40 pm | Permalink

    This is nothing more than hollowing out of religion.

    To many Xians, the cross is sacred. Alito’s language is anything but an endorsement away from veneration and towards oblivion. Crosses can signify anything now. Like God is Energy is synonymous with God is a lump of coal.

    This is impressive how the court is not aware of what type of message they are actually promoting.

    • Jon Gallant
      Posted June 21, 2019 at 12:37 pm | Permalink

      But since God is everywhere, they
      tell us, it follows that God is a lump of coal. Frankly, I suggest that we accept Alito’s innovation and run with it. All sorts of funny designs based on the cross
      (just the traditional cross, of course) can
      now be made up, and displayed as public art.

  12. Randall Schenck
    Posted June 20, 2019 at 4:06 pm | Permalink

    U.S. Beat Sweden 2-0. That makes three games so far with U.S. at 17-0. Think that should get equal pay??

    • EdwardM
      Posted June 20, 2019 at 4:53 pm | Permalink

      The amount of goals reflects the quality of opponent in this case, so that’s not really a good metric.

      This probably will not go down well here, but ….I do not think pay should be equal. It makes no sense. Pay for national teams should be determined by receipts (gate, sponsorships, TV revenue, etc) and there is simply no comparison between the men’s teams and women’s teams*. The men can fill stadiums for friendlies in non-qualifying competitions but even in the World Cup the women’s games are not sold out. If they want equal pay I feel they have to fill stadiums and sign television contracts.

      Last year in a friendly against Mexico the U.S. played before 70K fans and it was televised nationally in both the US and Mexico. The same year, in a World Cup qualifying game against Mexico, the women’s team played before a crowd of 9000. The game was available only on a cable channel.

      The women’s games are excellent, superb football – the pace of play is a tad slower and the game is less blood and thunder than the men’s but the quality of play is excellent and exciting and technically as good as the men. They are true athletes. I watch as many USWT games as I can and they are perhaps the best team in the world (England, Japan and Germany may have something to say about that).

      One could make the argument that many of the men make a fortune already in their club play while the women’s club game languishes. So why not pay them the same – the men can afford to take a pay cut (the money has to come out of the same pot)? That’s not going to fly, if the US ever hopes to go far int he men’s World Cup.

      *most of the reports of the women’s team out earning the men’s are badly distorted. They compare earnings in World Cup years for the women to men in the same year. The men’s tournament does not take place during women’s World Cup years – the qualifying round begin 18 months before a World Cup final and there are four years between them.

      • Randall Schenck
        Posted June 20, 2019 at 5:27 pm | Permalink

        How about we look at it this way. The American men have not won any world cups, have not come close. To put it mildly, they suck. Maybe they will have a chance some day long into the future? How many times have the American women won? This year, now, in the games they play, the host city/country makes a fortune off of the American Women, wherever they play. They bring with them, a ton of American fans who spend lots of money in those towns they play in. Lots of money. Is there something you do not understand about money? Maybe just something you do not understand about equal pay for the work?

        • EdwardM
          Posted June 20, 2019 at 6:41 pm | Permalink

          The US men have placed third in the World Cup, Randall, so they HAVE come close.

          Despite your insult, I DO understand about the money. In fact that’s the whole point. I expect someday that some women’s sport will be equally popular to the men’s versions (and soccer is likely to be one of them). But they aren’t there yet. ’nuff said.

          • Randall Schenck
            Posted June 20, 2019 at 7:11 pm | Permalink

            There was a time when people just like you thought the same for some other women’s sports, say maybe tennis. But the women fought like hell and they got the pay. Always they had to fight a long fight. It is because of guys like you and that is no insult, it is fact.

            You say the women American soccer team is not there yet, do not deserve anywhere near what they pay the guys. What do they need to do, cut their hair and run around pretending they can play, like the men? Or maybe win 4 or 5 times while the men go home losers? You need to get yourself up to date.

        • Posted June 20, 2019 at 8:55 pm | Permalink

          Both teams are in the entertainment business. One is found more entertaining by the paying audience than the other. Nuf ‘ced.

          • Randall Schenck
            Posted June 20, 2019 at 9:21 pm | Permalink

            That is another statement with no meaning. Both are in the entertainment business? And one is found more entertaining than the other. How ridiculous is that. More entertaining by who? Did you take a poll of that paying audience to come to that conclusion. It was the American FIA that comes to that pay differential.

            Do you think the audience decides the pay of people playing sports in any sports? The NFL, the NBA? Have never hear of such a strange idea. Is that enough said…Matt?

            • Posted June 20, 2019 at 11:24 pm | Permalink

              Do you think the audience decides the pay of people playing sports in any sports?

              Of course it does. Just compare the average salaries of various mens’ sports leagues. Then compare attendance for mens’ and womens’ leagues of the same sport.

              • Randall Schenck
                Posted June 21, 2019 at 7:20 am | Permalink

                Something for you to play with in math class but not relevant to reality.

        • max blancke
          Posted June 22, 2019 at 1:59 pm | Permalink

          We were having this discussion at our house while watching one of the matches.
          I thought it would be informative to compare the ticket prices for the men’s and women’s matches.
          Tickets for the US women’s in the quarter finals can be had for 15 to 57 Euros.
          The same tickets for the men’s event start at 153 euros and go way up from there.
          So if pay is a percentage of stadium revenue, there is a big difference.
          I do not know if the TV income is proportional, but I suspect it is.

          Also, the women are winning big, but they are not winning against the teams the men are playing against.

          My suggestion would be to stage a game between the US men’s and women’s teams and evaluate the issue afterwards.

    • Curtis
      Posted June 21, 2019 at 11:40 am | Permalink

      The pay should reflect the money the teams bring in over the long term. If the women bring in equal money over a decade, they should earn equal pay. If they bring in less (more), they deserve less (more).

      The reality is that most people prefer the men’s game. I have been to dozens of women’s professional games (Portland Thorns and USWNT) and zero men’s games but I am in the minority.

      Worldwide 45 million people watched the 2015 women’s cup final on TV vs. 3 billion for the men’s 2018 final. Live attendance is less skewed “only” 900,000 vs. 3,000,000. Most people like the men’s game more.

  13. rickflick
    Posted June 20, 2019 at 4:36 pm | Permalink

    “Alito’s call for “respect and tolerance” for Christians.) But Christians are in the majority. What about atheists, nones, and others? Seems like a one way door.

  14. benjdm
    Posted June 20, 2019 at 4:37 pm | Permalink

    “…has been to pretend that religious symbols and mottos morph into nonreligious, historical and secular icons over time. This is patently bogus, an offense to anybody with two neurons to rub together.”

    Well, it’s not entirely bogus. It’s bogus with regards to Christianity in the US today. But when I talk about Wednesday or Thursday, I am not actually talking about them being Woden’s Day or Thor’s Day. Those religious mottos have morphed into secular ones. Same for the word ‘holiday’ – it isn’t a shortening of ‘Holy day’ anymore.

  15. KD
    Posted June 20, 2019 at 5:01 pm | Permalink

    First point, “Separation of Church and State” goes back to the Byzantines, where you have a eccelesiastical establishment (the Christian Church) which was separated from the Roman Imperium, and which had autonomy to appoint Bishops and govern itself. In terms of genealogy, the idea of Separation emerged from Christianity in a Christian civilization. You don’t find anything equivalent in the Caliphate for example. Further, a lot of Separation arguments are really about destroying, limiting and co-opting independent, non-state institutions in civil society, which is why totalitarian parties often invoke them. I think anyone concerned with anti-totalitarian politics should look critically at Separation arguments.

    Second, the Constitution bars the “Establishment of Religion”. This refers directly to the Establishment of a National Church, like you have in theocracies such as the United Kingdom (which recently burned to death Richard Dawkins on grounds of heresy). This decision does not establish a church, or make people pay taxes to support a church, or give a church control over public schools. It preserves a monument to dead soldiers. I think it is a stretch to call it the end of the First Amendment

    Since the Keyishian case, the Supreme Court has been imposing a laicite-type view of “Separation”, e.g. eliminating religious behavior and symbols from the public space. In 1967, in Keyishian v. Board of Regents, the Supreme Court struck down a nondenominational prayer as “establishing a religion”, because it uttered the unutterable name of G__. [Preventing the utterance of the unutterable Name was, of course, a “secular” act in the same way the smashing of pagan statute is a “secular” act, but I digress.]

    Let’s say we support the laicite (which is really a French Revolutionary concept, not historically part of American jurisprudence until the Warren Court), and we think the laicite is good for the U.S. and the world. The bottom line is that if we look at, for example, the Israeli flag, it has a Star of David on it. It is a religious symbol. It probably offends a number of Israeli citizens who are not Jews. However, it is an important symbol to the ethnic majority of Israel, and it has secular meaning and importance to people even if they are not practicing Jews.

    That is to say, a symbol can have a dual meaning, and a religious symbol in the right context may have a perfectly valid secular message (even with an implicit religious meaning to some) without establishing a particular sect or worldview. . . especially in a war memorial.

    I don’t think that there is a clear cut line in any of these cultural questions, but the reality is that religious symbols also have secular meanings, and importance, even to people who don’t believe in or practice the religion. I don’t think it is desirable, or politically feasible, to strip away the heritage and symbols of the cultural majority of a country, and I don’t think you have to do so in order to avoid becoming a theocracy.

    America was founded by a bunch of Protestant religious fanatics who were too fanatical to get along with their fellow fanatics in England. Should that fact be excised from the history books? Should children not draw Pilgrims on Thanksgiving, etc.? The only way the laicite could possibly work is if it is carefully limited, and I’m not sure military memorials are the best place to start. Frankly, I very much doubt this Court would approve of a “peace cross” erected in 2020 in front of an Alabama high school, and if they did, I would be as alarmed as the author of this blog is at the outcome of this case.

    • Posted June 20, 2019 at 5:18 pm | Permalink

      Dual meaning for religious symbols are also offensive to the religious. It’s their symbol and if it becomes a gestalt for the secular state, it undermines the religious sanctity.

      • KD
        Posted June 21, 2019 at 11:09 am | Permalink

        Too bad for them.

    • Ken Kukec
      Posted June 20, 2019 at 5:51 pm | Permalink

      … the Constitution bars the “Establishment of Religion”. This refers directly to the Establishment of a National Church …

      There are those (including at least one sitting SCOTUS justice) who argue that the original intent of the Establishment Clause was merely to prohibit the federal government from establishing a national church, such that it would interfere with the individual states’ prerogative to establish state-supported churches of their own. (After all, the text of the First Amendment provides that “Congress shall make no law respecting an establishment of religion …” (emphasis added), and contains no proscription upon the states’ doing so.)

      Do you think this is a correct interpretation of the original intent of the First Amendment? If so, do you think it should be deemed a binding constitutional interpretation today?

      • rickflick
        Posted June 20, 2019 at 7:04 pm | Permalink

        Jefferson (and perhaps others) had already done much to establish a separation of church and state in Virginia when he helped draft the language of the First Amendment. He might have had in mind that it could safely be left to the states, since he probably viewed Virginia as a model for other states to emulate. On the other hand I think there is precedent or at least tradition that says these federal constraints do apply to the individual states. I seem to remember SCOTUS has always interpreted the First that way.

      • rickflick
        Posted June 20, 2019 at 7:17 pm | Permalink

        I think the scope of the Bill of Rights was expanded primarily through the 14th Amendment which provided for civil rights for blacks after the Civil War. Leaving civil rights to the whim of southern legislatures became untenable. Perhaps separation of church and state is also seen as a civil rights issue in that when a church is endorsed by a state government citizens of the state not members of that church are being deprived.

        • Ken Kukec
          Posted June 20, 2019 at 9:00 pm | Permalink

          Through a process known variously as “incorporation” or “absorption,” championed primarily by Justice Hugo Black (one of SCOTUS’s longest serving justices ever) and reaching its peak during the Warren Court years of the 1950s and 1960s, the Due Process Clause of the 14th Amendment (which was enacted after the Civil War) was interpreted to make the Bill of Rights (which originally, by its terms, restricted actions by the federal government alone) apply equally as against the individual states.

          Volumes upon volumes have been written by constitutional scholars about this topic.

      • KD
        Posted June 21, 2019 at 5:48 am | Permalink

        As I see it, the Establishment Clause, as incorporated by the 14th Amendment, would place the same prohibition on States that it places on the federal government, e.g. no establishment of religion.

        Since 1967, it has been used to impose a version of the laicite which is really French. Instead of your typical “establishment” where you have a state church supported by the state, the claim is that the State can’t “endorse” religion. In some cases, this kind of decision would be clear cut, if a school superintendent came out and stated at a school assembly that non-Baptists would go to hell or something, but you don’t really find much of that in any of the case law. It is stuff like a nonsectarian prayer to a generic (presumably Judeo-Christian) God who blesses people who don’t litter and don’t cheat on their taxes.

        To get to an “endorsement”, you have to have some operational definition of “Ur-Religion” because you are examining behavior that doesn’t fall into anyone’s actual religious practice (for example, use of the “G__” word in nonsectarian prayers) which is basically ad hoc. Which means the results in these cases are “ad hoc”, based on what the Justices divine to be the characteristics of “Ur-Religion” and whether the practice or monument falls into “Ur-Religion” or not.

        Obviously, with compulsory state education, I understand why it would be obnoxious for the public school systems to proselytize on religious grounds to children (even in a nonsectarian manner), and I can see some version of a laicite may make good sense, but it involves drawing lines.

        As far as religious symbols being secular symbols too, I have to consider Notre-Dame in France, which was seized by the State during the French Revolution. Obviously, Notre-Dame has religious, specifically Catholic Christian significance, to believers. But more widely, it is a symbol of France and the French Nation to believers and non-believers. If Macron does not raze Notre-Dame, are we to believe that France is a theocracy, or that French citizens are being coerced to follow Catholicism? No one would say such things with a straight face, because of the secular significance of Notre-Dame in the life of the French Nation.

        Obviously, acknowledging dual meanings of symbols, and permitting symbols with religious meanings to stand if the primary intention is to signify a secular meaning, makes jurisprudence more complex. But I think it is necessary to avoid becoming a razer, someone who seeks to destroy that which is beautiful and good that survives from a past age.

  16. Diana MacPherson
    Posted June 20, 2019 at 5:47 pm | Permalink

    It’s disturbing that seemingly reasonable people who have so much influence over the lives of whole populations think that the supposed imagined meanings people ascribe to symbols washes that symbol in secularism. I thought imaginings of other people’s thoughts is something courts would dismiss.

    • Posted June 20, 2019 at 6:04 pm | Permalink

      It does happen. Last Memorial Day I visited the Military Cemetery to pay tribute to a friend who died in Viet Nam. As I walked through all the crosses I saw them only as poignant symbols of all the lives lost to the curse of war.

      • Posted June 20, 2019 at 11:11 pm | Permalink

        I’m referring to the emblems of belief crosses on the headstones.

    • KD
      Posted June 21, 2019 at 6:10 am | Permalink

      In English common law, most crimes contain a “mens rea”, or mental state, which is an element of an offense. Killing someone with premeditation is different from killing someone in a reckless manner, and is classified and punished differently. Determining the mental state of others is something courts do all the time, and certainly in almost every criminal case.

      To even call something a “symbol” is suppose that something has a particular meaning and significance in a particular community. You couldn’t have an American flag if you did not have an American people and an American territory (at least at some point in time). If someone designed an object identical to a modern “American flag” in 1500 C.E., it wouldn’t be an “American flag” as it would not have the same significance. It would be like the flag of Gondor or something, not something actual people spill blood over.

      Further, the meaning of symbols change. In ancient times, in parts of Northern Europe, the swastika was a religious symbol in a particular set of communities. Today, if you are walking around with a swastika T-shirt, most people are going to see that symbol due to “imagined meanings people ascribe to symbols” as possessing a secular meaning, that is to say, an affiliation with German National Socialist movement. Further, if some political agent wanted to erect a Swastika monument as part of a war memorial, no one would be arguing that the monument was state endorsement of Norse paganism, but there would be a lot of other arguments against it.

      • Diana MacPherson
        Posted June 21, 2019 at 11:49 am | Permalink

        But this is hardly a murder trial. How can one suppose “mens rea” when it has nothing to do with intent? It’s a complete non sequitur of someone trying to imagine what the intent of the symbol was and now is. What matters is how that symbol, as a religious one, violates laws. What someone intends or thinks or thought is irrelevant and risible.

        • infiniteimprobabilit
          Posted June 23, 2019 at 2:08 am | Permalink

          I have to agree with KD there, Diana.

          The objection to the cross is entirely because it is seen as a religious symbol. If in popular opinion the cross loses some of its identity as a religious symbol, then the extent of objection to its presence (under First Amendment grounds) must surely decrease as well. Hopefully in future centuries the cross will have no more significance than any other geometric shape.

          As a parallel example, the Swastika in south Asia is inoffensive since it has been, for centuries, a ‘good luck’ symbol. It’s only in Europe that it has more sinister implications due to Hitler’s appropriation of it.

          What encourages a secular view of the cross is, I think, simply that it’s a very simple geometric shape, so liable to arise as a design in many contexts quite unrelated to religion. What do you do with two lines? – make a cross.
          In the same way that I wouldn’t like to see south Asian swastika designs inhibited by Adolf, I don’t want to see the cross (as a design element) usurped or monopolised by Xtianity.

          If the cross has a dead Jesus dangling on it, now, that’s different.
          (Which reminds me of a delightful anecdote by Stephen Fry, here at 1:00:
          http://www.youtube.com/watch?v=NoNAGKreVV8
          To give some context, he was arguing for the C of E in a debate.)

          cr

          • Diana MacPherson
            Posted June 23, 2019 at 10:19 am | Permalink

            Give me a break. You’re really going to buy that the cross is a secular symbol? That’s the same bullshit argument put forth when erecting the 10 Commandments monument on public grounds in Arkansas.

  17. mikeb
    Posted June 20, 2019 at 6:08 pm | Permalink

    Liberals are pissed.

    That makes it a big win.

    (Not that I endorse it.)

    • Posted June 20, 2019 at 7:43 pm | Permalink

      headline:
      Progressives Infuriated Brick Wall Hurts Head When Run Into.

  18. gravelinspector-Aidan
    Posted June 20, 2019 at 7:11 pm | Permalink

    to pretend that religious symbols and mottos morph into nonreligious, historical and secular icons over time.

    If anything, the direction of change is from secular icon towards a religious one. For example, the “broken cross” or swastika is fairly rapidly mutating from a vague “good luck” symbol used in a variety of South Asian to Oriental, into becoming the symbol of Our Hitler, whose Will will be Done, Heil-ed be his Name … amongst the ultra-right as they develop their new religion.
    No doubt the cross itself underwent a similar transition early in the evolution of Judaism into Christianity. Certainly the Christian septs have gone through several rounds of this, such as the excessive veneration paid in some septs to icons, taking a setback in the iconoclasm of the 8th century. Increasing veneration applied to the purported toenail clippings of saints and fragments of the Holy Cross (pungently noted as being so numerous as to need a fleet of ships were they to be returned to Jerusalem) was one of Junker Jorg’s complaints about Catholicism, leading to the Catholic-Protestant schism. A well-travelled road indeed.

    • Posted June 20, 2019 at 7:40 pm | Permalink

      “… whose Triumph of the Will be done.”
      FTFY

    • infiniteimprobabilit
      Posted June 23, 2019 at 2:13 am | Permalink

      I would argue that the swastika very rapidly morphed into a Nazi symbol in the mid-20th century, and that hasn’t changed much since. I would like to think that that significance fades over time and its long and inoffensive traditional significance in Asia continues and eventually prevails.

      IMO the swastika is too satisfying a design element to be permanently denied us by the malfeasances of a mad politician.

      (Same with the cross, of course).

      cr

  19. Posted June 20, 2019 at 7:35 pm | Permalink

    The District Court originally ruled against AHA, finding the cross passed both the Lemon test and Justice Breyer’s “legal judgment” test in Van Orden.

    In the appeal, Maryland-National Capital Park argued that only Van Orden applied, while AHA argued — as did FFRF in its amicus curiae — that Lemon alone must apply — specifically its second “effect of advancing religion” prong — with the cross in any case failing both tests. The Appeals Court found the cross failed the second and third (“excessive entanglement”) Lemon prongs, while Van Orden did not apply.

    While an inferior court may well be obliged to consider SC rulings such as Lemon, the SC itself is under no such obligation, and has ignored Lemon in ten recent Establishment Clause cases. Further, the Lemon test has been recognized in numerous rulings to be flawed and of limited usefulness. Notably, no SC amici on either side argued for use of Lemon, while one AHA amicus expressly argued against its application.

    The SC based its ruling on the dual opinions in Van Orden and McCreary.

    Not sure what AHA & friends’ thought process was, but this outcome should have come as no surprise. The Lemon test has long been out of favor, especially at the SC, and Breyer himself had clipped its wings in 2005. A 6-3 loss was the best they could’ve hoped for.

    AHA clearly miscalculated. Van Orden firmly protects most pre-existing religious displays and cannot be overcome by attempting to resuscitate the moribund Lemon test. With the demise of Lemon, a vacuum exists with no established rule of thumb for Establishment Clause cases. This case allowed Alito to record points that may or may not become precedent, potentially undermining the Establishment Clause guarantees in McCreary and other rulings.

  20. Posted June 20, 2019 at 10:42 pm | Permalink

    “You think when Jesus comes back he’s gonna want to see a [beep]ing cross, man? “Ohhh!”

    May be why he hasn’t shown up yet. “Man, they’re still wearing crosses. [beep] it, I’m not goin’, Dad. No, they totally missed the point.”

    – Bill Hicks

  21. Posted June 21, 2019 at 12:03 am | Permalink

    I am all for not inflicting religious symbols in public or governmental venues for an entire populace holding diverse beliefs. I am sad that the supremes made this decision, but didn’t expect better from them. And, I’m all for the work done by AHA, FFRF and others to
    protect our rights in this regard.

    On another note: I am sad to see the negative comments here of several people I admire. At the risk of being dumped from the site, I refer to the first part of item 8 in Da Roolz:

    “Most important, please try to refrain from insulting other posters, no matter how misguided you think they are. I don’t like name-calling, for it lessens whatever class this site has and certainly doesn’t foster discussion.”

    I learn so much from the discussions on this site, especially when people cite sources . I especially enjoy the folks with legal expertise, scientists and historians. I like the humor as well. And the ducks, squirrels and birds. And the travel and food adventures. Hope I can continue to learn from and enjoy WEIT.

    • Posted June 21, 2019 at 9:01 am | Permalink

      I waive my Section 8 rights and welcome comment on this reiteration of what I said earlier: AHA & its amici made both tactical and a strategic errors in bringing this suit, and knew fully well it had no chance of success before the SC. I further suspect that AHA, FFRF, AA, et al. bring these suits primarily to ‘show the flag’ and, at least in part, to generate donations.

      Any constitutional interpretation case is a crap shoot, with the risk of an unwanted precedent arising from a defeat. Filing loser complaint after loser complaint is not just futile and bad PR, but reckless.

      I’d love to see a guest post from Andrew Seidel on this topic.

      • Posted June 21, 2019 at 7:31 pm | Permalink

        You may be right as you know more about legal matters than I do. But I don’t think so in regards to cases FFRF, et al, pursue at the state level. I don’t have a count of the numbers they win but, they do win some. They would be able to tell you no doubt. Until such time as Trump and gang get the federal judicial ranks of the states stuffed with far right Republicans, FFRF, et al, may have a chance to win a few more. At least they try.

        And, I disagree that donations motivate these efforts. Some of these organizations such as FFRF and MRFF work hard on behalf of non-religionist’s rights.

        Maybe Jerry can get Andrew Seidel to guest post on this most recent Supreme Court fiasco.

        • Posted June 22, 2019 at 4:01 pm | Permalink

          I would really like to know why AHA, with FFRF’s help, attempted to resuscitate the Lemon test.

          Older religious displays have been essentially grandfathered in, and that’s not about to change. So why file complaints like this one? I’d like an honest answer to that as well.

  22. eric
    Posted June 21, 2019 at 8:53 am | Permalink

    Hi Jerry,
    At the risk of making your blood boil, you may want to this article on the cross.

    Whether intentionally or unintentionally, the people who built the bladensburg cross omitted the names of the local Md and Baltimore Jewish soldiers from those same regiments who lost their lives in WWI.

    And it’s hard to see it as a naive or innocent oversight, given that the chaplain who was present at it’s opening to dedicate the memorial was from one of those units. He would’ve known all the men who died, and would’ve known that some of them weren’t shown on the monument.

    Given that, I’d say that even if it were a neutral statue (like an obelisk or fresco), I’d still want it taken down and replaced. This is beyond the shape of the memorial; the incomplete list of names is offensive too.

    • infiniteimprobabilit
      Posted June 23, 2019 at 2:26 am | Permalink

      If you read the comments to that article, the cross allegedly includes only the names of Prince George’s County, not including anyone, Christian or Jewish, from surrounding areas including Baltimore. So the objection above is spurious.

      Whether this is correct or not is presumably a question of fact.

      cr

  23. Posted June 21, 2019 at 9:48 am | Permalink

    I’m just glad I don’t have that big mother-fucker in my town.

  24. max blancke
    Posted June 22, 2019 at 12:15 pm | Permalink

    I am really disappointed that the community here came down on the side of the scolds on this one.
    It is a memorial to the dead,erected with private funds on private land (or perhaps city land designated for that purpose?). At the time it was constructed, the form of the cross was noncontroversial. As I understand, it did not become public property until 1961.
    The park service and other organizations often gain custody of places that have existing religious meaning or symbols. Some of my family members are buried in a graveyard that was seized by the park service in 1934. Do you also object to their headstones? How about the church at the Shiloh battlefield?

    Lets insist on secular design for future memorial construction, unless there are specific reasons to include religious symbols.
    But going around smashing religious symbols at historic sites and monuments is really poor form. Even if you use the court system as a hammer.

    • GBJames
      Posted June 22, 2019 at 2:33 pm | Permalink

      Give me a break. It isn’t private land or there would have been no case.

      And the Shiloh church was there before the battle, for christ sake.

      • max blancke
        Posted June 22, 2019 at 5:48 pm | Permalink

        The monument in question had been standing on private land for 40 years before the land it stands on became public.
        The Shiloh church was built as a replica of the original in 2003, on land that had been part of the park since 1894. It also has a cross on it.

        I think it would be pretty distasteful to advocate the purging of religious symbols on any property ceded to the government. Especially since many places and objects have been given over to the government specifically to be preserved for posterity.

        It also seems ridiculous to suddenly feel that one is terribly oppressed by monuments and statues that have stood for decades or centuries. My suggestion is that if a particular memorial or monument sitting in a park somewhere bothers you, you should picnic elsewhere.

        • GBJames
          Posted June 22, 2019 at 5:59 pm | Permalink

          I repeat. Give me a break. The battlefield was named for the church which was rebuilt to maintain an understanding of the history of the battle. This is completely different from a big f-ing cross with Christian-only names on it to memorialize events that happened across an ocean from the site. The monument isn’t a historical object of any significance and the site is owned by the public. It has no business being on public property.

          • max blancke
            Posted June 22, 2019 at 8:41 pm | Permalink

            “isn’t a historical object of any significance”

            is a subjective statement.
            The National register of historic places, when describing this monument, uses the following terms:
            “historically significant”
            “It is significant as an expression of…”
            “architecturally significant”
            “The monument’s design, age, tradition, and symbolic value have invested it with its own exceptional significance…”

            “Christian-only names” I guess this is from the Humanist article. Of course, one would expect biased and inflammatory statements from lawyers involved in such a case.

            Here is how that question was addressed by the archeologist from the planning commission-
            “The religious affiliations of all 49 are not known. Six of the 17 men buried at Arlington have gravestones marked with a cross. Others are buried in small Episcopalian or Catholic cemeteries primarily in Maryland.”

            The service members memorialized there are from Prince George’s County, Md, so it is not surprising to me that Jewish (or other) soldiers from Baltimore county, even if they were in the same regiment, are not listed.

            Even though those people died “an ocean away” from that site, they were local boys and men. For some of them, this is the only memorial. Beyond this, they are just bone fragments, some buttons, and bits of decaying cloth lost forever under some field in France.

            • GBJames
              Posted June 24, 2019 at 7:33 am | Permalink

              There is nothing wrong with memorializing the fallen from war and nobody objects to that. The implication that people who object to state-supported religious symbolism are opposed to memorials is, of course, offensive although (I trust) not intentional.

              Failing to recognize the difference between a reconstructed meeting house at a battlefield from a big honking cross in the middle of a highway strikes me as notable.

  25. infiniteimprobabilit
    Posted June 23, 2019 at 2:37 am | Permalink

    Anyway, it’s in the middle of a busy intersection. Give it a little time, and the same enterprising truckies who keep http://www.11foot8.com supplied with material will solve the impasse.

    😎

    cr

  26. ThyroidPlanet
    Posted June 24, 2019 at 8:00 am | Permalink

    One problem I thought of :

    the victims of war – including the families- undoubtedly had firm Christian convictions, partly due to the period of time they grew up in. Naturally, the monument would express that – if, as I expect, the families of the victims desired such a thing. Having installed the religious monument so many years ago (I am understanding this less and less), it seems to take it down or replace it would be an injury to the citizens who wanted it in the first place…. which brings up the notion of taking down old monuments because they do not comport with modern views…

    However, I do not understand how the cross cane to be in this story.

    • ThyroidPlanet
      Posted June 24, 2019 at 8:01 am | Permalink

      …. yet the justices seem to have completely ignored this aspect, focusing instead on what seems to be a question of “if we did this today, how would we do it?”

  27. Andrea Kenner
    Posted June 25, 2019 at 5:48 am | Permalink

    According to Wikipedia, when the Peace Cross was built, the land it stood on was private. The land was turned over to the MNCPPC in 1961. Perhaps the MNCPPC could turn the land back over to private ownership by auctioning it off to interested local bidders.

    I live fairly close to the Peace Cross. It’s not what I would call aesthetically pleasing. Just my humble opinion.

  28. Andrea Kenner
    Posted June 25, 2019 at 5:48 am | Permalink

    According to Wikipedia, when the Peace Cross was built, the land it stood on was private. The land was turned over to the MNCPPC in 1961. Perhaps the MNCPPC could turn the land back over to private ownership by auctioning it off to interested local bidders.

    I live fairly close to the Peace Cross. It’s not what I would call aesthetically pleasing. Just my humble opinion.

  29. Andrea Kenner
    Posted June 25, 2019 at 5:49 am | Permalink

    Sorry for the double posting. I have multiple WordPress accounts with multiple passwords. WordPress gets confused sometimes.


%d bloggers like this: