//  2/24/19  //  In-Depth Analysis

On Wednesday, February 27, the Supreme Court will hear oral argument in American Legion v. American Humanist Association. The case involves a constitutional challenge to the permanent display on government property of a Latin Cross, forty feet high, as the centerpiece of a World War I Memorial. The Memorial is dedicated to residents of Prince Georges County, Maryland who died in that war.  A divided panel of the Fourth Circuit held that the display violated the Establishment Clause of the First Amendment.

The Disconnected Opposing Arguments

On one level, the briefs filed in the Supreme Court (both by parties and by friends of the Court) reveal a remarkable disconnect between the opposing sides.  Those urging the Court to hold the display unconstitutional are focused, quite appropriately, on the display and what it signifies.  For Christians, the Cross symbolizes God’s gift of his Son, who died on the Cross, was resurrected from death, and now promises eternal life.  The challengers to the Cross display thus argue, with perfect accuracy, that the Latin Cross is a symbol exclusive to Christianity.  Under longstanding Establishment Clause principles, the government may not promote, endorse, or sponsor the display of this exclusively Christian symbol, because doing so elevates Christian belief over all other religious belief, and proclaims the theological truth of the Christian narrative.

Strikingly, those who argue that the display does not violate the Constitution do not challenge any of these propositions about the theological significance of a Latin Cross. They just ignore the religious and constitutional concepts central to their opponents’ arguments.  Instead, they claim that, in the context of war memorials, the “purpose and objective meaning” of the Latin Cross are secular, not religious.  And they train most of their fire on the various tests that the Supreme Court has used to assess whether the state has committed an Establishment Clause violation.  For example, these advocates assert that the “no endorsement” test that the Court has used in prior decisions about religious displays is unworkable and should be discarded.  They further argue that the appropriate test is one that asks whether the display – even if it is thickly and incontrovertibly religious – coerces religious activity or excessively proselytizes (which passive displays rarely do). Under this highly permissive approach, government-sponsored displays of a Latin cross, Islamic star and crescent, Torah scroll, Buddha statue, Hindu goddess shrine, or any other religious symbol would never run afoul of the Constitution.

As between these two lines of argument, those challenging the display are far superior.  The Latin Cross is indeed religiously specific, and viewed that way by Christians and non-Christians with equal conviction and accuracy.  Those who defend the display – primarily by ignoring its content and attacking the governing legal principles – are constitutional radicals, determined to upend settled constitutional understandings and unleash the power of an unchecked state to proclaim a Christian identity.

A Jurisdictional View of Non-Establishment

The solution to the constitutional problem presented by the Bladensburg Cross case, however, should not be limited to these two choices.  Instead, the problem should be addressed on a different and constitutionally richer level.  In their focus on how the display affects observers, both proponents and opponents of the display treat the Establishment Clause as a rights-granting provision.  Proponents of the display argue that no one is coerced by it to believe in Christian teachings about the Crucifixion, and therefore the government is not establishing those beliefs. Opponents contend that the display of the Cross creates insiders who feel welcomed by the message of the Cross, and violates the rights of outsiders who feel alienated or excluded by that message.

Both groups are partly right about the psychological impact of the Bladensburg display.  It does not coerce belief, but it excludes many Americans from its theological ambit.  Nevertheless, both sides miss the central constitutional concern of the Establishment Clause.  The Clause separates the power of the state from that of communities of faith.  Religious institutions may not exercise coercive state power, and the state is forbidden from exercising the power to proclaim religious truth or meaning.  In holding that the state may not author prayers, Engel v. Vitale (1962), the first major School Prayer Case in the Supreme Court, rests on precisely this ground. The Establishment Clause thus constrains government sponsorship of religious messages, even if all (or none) who see or hear the government’s message find it consonant with their faith.

James Madison’s famous Memorial and Remonstrance Against Religious Assessments – a foundational document in American religion-state relations – is framed primarily in jurisdictional, power separating terms.  Madison argued, among other things, that the proper jurisdiction of civil government excludes religion, which is a matter for individuals and private associations. Civil government is secular – concerned exclusively with things of this world – and efforts by the state to proclaim religious truth exceed its mandate from the people.  Thus, for Madison, the state’s assertion of religious authority is inconsistent with government’s fundamental character, whether or not that assertion violates the rights of particular citizens.

Building on Madison’s understanding, we argue in our book “Secular Government, Religious People” that government in the United States has no authority to speak or act on religious matters.  It may accommodate the religious needs of its people, as it does when it authorizes the use of religious symbols on individual gravestones in military cemeteries.   That practice allows members of the Armed Forces and their survivors to display their own religious commitments, as one can see from the multiplicity of religious symbols on grave markers at Arlington Cemetery and elsewhere. But secular government is forbidden from asserting a religious confession or identity of its own.

This jurisdictional limitation is both profound and practical.  It serves enduring principles that stand against government absolutism, whether in the form of national socialism, communism, or (closer to home) Christian capture and domination of the state.  Ours is not a Christian nation, and Christians should rejoice in that.  Christian faith, like all others, is not bound to the inevitably flawed work of government. 

In practice, our government’s respect for that jurisdictional boundary has been imperfect.  Much of this unevenness can be traced to the Second Great Awakening, a movement in Evangelical Protestantism that began in the early decades of the 19th century.  Among the aims of that movement was to Christianize the country, which leaders saw (and many continue to see) as special in the divine plan for salvation.  The national motto of “In God We Trust” emerged from that tradition.  But even this breach of government secularity is theologically thin, and was seen as widely inclusive at the time of its adoption.  By contrast, a government-sponsored display of a Latin Cross as a generic war memorial strikes at the core of the state’s secular character.  The Latin Cross is not a universal symbol of death, remembrance, resurrection, or sacrifice. Those who claim any such universality are stunningly insensitive at best, and simply lying at worst.   Perhaps they have been blinded by the hope of seeing the symbol of their faith broadly displayed by the government as its own.

That hope must be repudiated because it betrays the great and enduring promise of our nation. Lincoln’s Gettysburg Address, frequently cited for its passing reference to the nation being “under God,” has the deeper question exactly right.  Dedicating a portion of the Gettysburg battlefield as a cemetery for Union soldiers who perished in the fight, Lincoln reminded us that  we cannot dedicate -- we cannot consecrate -- we cannot hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract.”  Lincoln understood that the Union could recognize the loss of life among its troops, but had no authority to make the ground sacred.  That power rested with the people – in particular, the “brave men” who had been in the battle.  Faced with the evil of a faction willing to spill vast amounts of blood to defend slavery, Lincoln reminded us that “the great task remaining before us” was “a new birth of freedom” and the survival of government of, by, and for the people, not a government that claims authority from the transcendent.

As we note above, a Latin Cross belongs only on the graves of those who believe in the message of the Cross.  It is perfectly appropriate for government cemeteries to display such a symbol at a gravesite, because the symbol reflects the one buried at that place. But the government may not claim the deaths of all soldiers as redemptive. The state can commemorate their bravery, but only the soldiers and their religious communities know any transcendent meaning their deaths represent. Like the mythological Icarus, the state threatens its own mission when it aims for something beyond the reach of mortals.

Alternative Ways of Disposing of the Case

The jurisdictional understanding of the Establishment Clause leads inexorably to the conclusion that government display of a Latin Cross as a generic war memorial violates the Constitution.  And yet few commentators seem to believe that the Court will rule this way. No one can identify more than four Justices likely to affirm the Court of Appeals, and many seem to think that as many as seven Justices will rule in favor of the state and allow the Bladensburg Cross to remain. 

If these troubling predictions are accurate, the grounds of decision become of paramount importance.  An opinion, for a majority of five or more, that proclaims the constitutionality of any non-coercive government message about religious belief would be a disaster. It would permit all levels of government, from the smallest hamlet to the United States as a whole, to declare an exclusive religious identity.  Nothing could be more religiously divisive, or stray further from our Madisonian roots.

Accordingly, we want to suggest two “least bad” ways of ruling for the government.  One, suggested as a fallback by the amicus brief for the Baptist Joint Committee and other religious groups, is that longstanding government displays of a Latin Cross are immune from orders of removal, but the Establishment Clause bars any new displays of the Cross or other denominational symbols.  This kind of “grandfather clause” would be highly unusual in Supreme Court adjudication, although it is suggested by Justice Breyer’s concurring opinion in one of the Ten Commandments decisions. His opinion focuses significantly on the divisiveness that might be created by judicially ordered removal of longstanding religious displays. 

If one or more Justices accept this suggestion, it seems reasonable that only those displays created before World War II would be afforded this sort of immunity.  From the late 1940’s onward, broad recognition of American religious pluralism rendered implausible any defense of denominational displays as universal or generic.  Moreover, the Court’s decision in Everson v. Board of Education (1947) that state and local governments are subject to the Establishment Clause dovetails nicely with that post-War constitutional consciousness.  It is not a surprise that the amicus briefs filed in the Bladensburg Cross case suggest that there have been very few Latin Crosses erected by governments as generic war memorials since 1945.

Alternatively, one or more Justices might rule that observers of the Bladensburg Cross lack standing to challenge it in court.  This move would build upon the legacy of Justices Scalia and Thomas in Salazar v. Buono (2010).  That case involved an Establishment Clause challenge to a government sponsored World War I memorial cross in the Mojave Desert.  Justice Kennedy’s plurality opinion, joined by Roberts and Alito, ruled in the government’s favor because it had transferred to private parties the land on which the display stood.  That opinion gratuitously and wrongly equated crosses on the gravesites of individual Christian soldiers with the use of a Latin Cross as a generic war memorial.  Justices Scalia and Thomas refused to join that opinion.  They argued instead that the challenger was not injured by the transfer of the land under the display and thus could not call upon the judicial power of the United States to adjudicate its constitutionality.

If one or more Justices who rule for the government expressly limit their opinion to older Cross displays, or rule for the government on standing grounds alone, the Court might well produce no majority opinion.  This would limit the damage done to Establishment Clause norms.  A separate opinion on one or the other of these grounds would be the narrowest in support of the result, and thus would govern future cases.  The “grandfather clause” approach would block the emergence of new state sponsored displays of Latin Crosses or other symbols of particular denominations.  A “no standing” approach would limit the adjudication in the federal courts of many Establishment Clause challenges to religious displays, but would leave state courts open to such litigation.  Either way, a splintering of the Justices would avoid blatant subversion of foundational Establishment Clause norms that prohibit denominational discrimination and state pronouncements of religious truth.

The Bladensburg Cross case has our country on the verge of abandonment of longstanding and hard won principles about the secular character of American government.  We can only hope that as the Justices peer over this cliff, five or more will take a long look at the rocky depths below, and safely and wisely step back.

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