Justice Alito Declares War on the Nones

June 26, 2019

Last week, the Supreme Court issued its opinion in the big church-state separation case of this session, American Legion v. American Humanist Association, the Bladensburg Peace Cross case. It’s not my intention to relitigate the case, or even analyze the ruling in too much detail. Suffice it to say we are now living in a Kafkaesque world where a 40’ concrete Latin cross, acknowledged by the legal system as the “preeminent symbol of Christianity,” located on public land, and maintained at public expense is somehow a secular symbol, and so does not represent an unconstitutional endorsement of religion.

It’s not that we didn’t expect to lose this case. Since oral arguments, we have been focused on how the opinion was going to come down against us. And, in some ways, it could have been a lot worse. The religious right majority on the Court could have, but didn’t, rule that observers have no standing to challenge government religious displays. They could have, but didn’t, rule that putting up new religious war memorials was constitutional. And they could have, but didn’t, officially overturn the Lemon test that has long played a role in determining Establishment Clause cases. They didn’t do any of these, but, to be perfectly honest, they probably will in future cases.

There’s no point in saying this isn’t a bad, bad loss. It’s a huge, unmistakably Christian monument, now funded by the state, on state land. If this is not religious endorsement, it is hard to see what monument would be. It’s pretty clear that the Court’s reliance on the history of the monument glosses over the key element – that only Christian displays in this country are going to have that history behind them. There simply won’t be Islamic Crescents, Jewish Stars of David, or humanist “happy humans” with this type of history, because of the way Christianity has, unconstitutionally, dominated public life in the past. So as the country becomes more and more religiously pluralistic, and the nones continue to grow into the largest “faith” group, state funded displays of a Christian dominated past will continue to be approved by the courts.

What worried me most, though, is the continuing emphasis of the Court, and in particular the opinion writer Samuel Alito, on a notion of “hostility” towards Christianity. This notion isn’t new. Indeed, the whole basis of complaints by the religious rights about public policy, and the requirement that they obey the same laws as everyone else, is that it is based on some sort of hostility. Not granting special treatment is seen by this group as persecution. Equality – bakers have to sell cakes to all customers; all employers have to provide contraception coverage in their health insurance; all state-funded adoption agencies must not refuse to place children with gay and lesbian couples – is painted as an attack on religion, and, in particular, an attack on Christianity.

This can be seen in the recent Masterpiece Cakeshop ruling by the Court. In overturning the punishment of a Colorado baker who refused to provide a cake for a same sex wedding in violation of state anti-discrimination law, the Supreme Court twisted a perfectly justifiable and reasonable comment by one of the state adjudicators into an attack on Christianity. That adjudicator noted that “[f]reedom of religion and religion has been used to justify all sorts of discrimination throughout history, whether it be slavery, whether it be the holocaust … And to me, it is one of the most despicable pieces of rhetoric that people can use – to use their religion to hurt others.” This is both factually true (the first half), and a defensible opinion (the second). It does not show hostility to religion, but instead hostility to hurting others. But the Court took it as sufficient sign of animus towards Christianity to overturn the discipline imposed.

Alito, in his Bladensburg opinion, makes much of the same notion of hostility towards Christianity. With hyperbolic language, Alito prophesies a “government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine,” which would be “aggressively hostile to religion.” He talks of “militant secular regimes [carrying] out such projects in the past,” listing the French Revolution and its campaign to ‘de-Christianize’ France. Secular groups and secular people are seen to Alito as barbarians at the gates of Rome, seeking the destruction of all that he holds sacred. We are akin to the Taliban blowing up the Buddhas of Bamiyan, or the Spanish Republicans assailing the Catholic Church.

Of course, Alito’s focus on the destruction of the cross, or the removal of its arms to make an obelisk, is both deliberate and deceptive. When one seeks to cure a church-state violation, one can either remove the church from the situation, by removing the Christian symbolism (destroying or altering the cross), or one can remove the state from it. This situation could have been made constitutional by the moving of the cross to private land; or the sale of the land the cross was on to a private group, at market rates, with accompanying responsibility for maintenance. But that’s not as good a story of hostility for Alito to weave, and for the religious right to lap up.

Alito has raised the possibility that all challenges to religious monuments in the United States are signs of hostility towards religion, and therefore invalid. To him, taking away the unconstitutional privilege of state support granted to Christianity is not leveling the playing field, but, instead, attacking his faith. And with that view comes an accompanying view of the non-religious population, and the groups such as CFI and AHA who seek equality for its members. That is a view of hostility towards us. We are barbarians, seeking to persecute Christians, and to tear down their art. To him, our desire is not for fair and equal treatment for adherents of all religions and those who hold no religious belief, but, instead, to remove rights from Christians. Just as demanding equal treatment for the LGBTQ community is not anti-straight, and campaigning for an end to educational segregation is not anti-white, calling for equal legal rights for atheists, and an end to special privilege for religion is not anti-Christian. Alito, however, thinks that it is. He has drawn his battle lines clearly. He is hostile to the non-religious, and believes any efforts by us to ensure fair treatment is an attack on Christianity. This level of bias against a significant and growing group of the population is not worthy of a Supreme Court Justice, and bodes ill for church-state separation in the future.