This Wednesday, February 27th, the Supreme Court hears oral arguments in American Legion et al. v. American Humanist Association et. al. Better known as the Bladensburg Cross case, it deals with a challenge to the constitutionality of a war memorial on public land. The memorial in question isn’t small, and isn’t inconspicuous. It’s a 40’ tall concrete cross in a busy traffic intersection. It dominates the surrounding landscape. It’s maintained at taxpayer expense. And, in case I didn’t mention, it’s a cross.
As the United States Court of Appeals for the Fourth Circuit (hardly known as a hotbed of atheism and liberalism) found, citing federal court decisions from across the country, “[t]he Latin cross is the ‘preeminent symbol of Christianity.’” That’s indisputable. Whether worn around the neck of a believer, or displayed on a billboard, or even inverted on a heavy metal album cover, the underlying purpose is to reference Christianity. And the only reason that these public displays work, whether sacred or profane, is that, in our society, almost every person of every age looking at a Latin cross knows that it symbolizes Christianity.
So how are we here? Why did the Supreme Court take this case, after the Court of Appeals ruled the presence of the giant cross on public land, maintained at public expense, to be a violation of the First Amendment? To many, this case seems like an open-and-shut violation of the Establishment Clause.
There’s a very compelling answer to that, which isn’t a positive one at all. The re-balanced Supreme Court, with the replacement of Justice Kennedy by Justice Kavanaugh, is poised to do what Christian nationalists have wanted for decades;to permit the federal government to openly favor not just religion in general, but Christianity in particular. It’s compelling because recently, in denying a Muslim prisoner on death row the ability to have his spiritual advisor with him at the moment of execution, the Court appeared to do exactly that. It’s a troubling possibility we have feared for years. While pro-religious decisions, such as Justice Alito’s (incredibly flawed) opinion in Hobby Lobby at least paid lip service to the notion that all religions were equally protected, Justice Ginsburg’s cutting dissent in that case suggested that, in reality, Christianity would be favored or exemptions would consume the American health care system.
Short of such a blatant reversal of decades of Establishment Clause precedent, how can the Court rule in favor of the American Legion and the cross memorial? Unfortunately, one way is a path they’ve been on for a long time, and one which has allowed preference for Christianity to become enshrined in our system. And they don’t even have to admit to doing it! By a series of steps, through “respect” for historical practice, to accommodation of religion, to the nonsensical concept of Ceremonial Deism, courts have avoided ruling on flagrant violations of the Establishment Clause by simply denying the religiosity of the practices and displays before them.
“In God We Trust” as a motto, and as a display on the walls of schools, on squad cars, and on our currency? That’s not religion! Prayers before town council meetings, and a taxpayer funded chaplain on Capitol Hill? That’s historical practice! Christmas displays on public property and Christmas as a federal and state holiday? Nothing to do with that whole “birth of Jesus” thing, it’s a secular matter!
Our courts have taken the flagrantly religious and justified it as a part of secular society. This emphasis on history inevitably privileges Christianity. In the past, the United States was significantly more religiously homogeneous. Where religious practices have a historical basis, they are much more likely to be explicitly Christian ones. We don’t see a history of Eid being a public holiday, or Shinto prayers before school board meetings. And in the face of this religious homogeneity, the drafters of our Constitution gave us the Establishment Clause–the clear expression that the United States was not to be a Christian nation in any shape or form.
To me, not only is this attempt to deny the religious nature of religious symbols and expressions legally wrong and logically flawed, it is also deeply insulting to religion itself. Christmas means something to Christians; the cross is a symbol of sacrifice that is the very basis of their faith. It isn’t a secular symbol to them, any more than it is a secular symbol to non-Christians. Whatever the Supreme Court may do in this case, it’s patently absurd to try to claim that this memorial is anything but religious. Such displays send an unmistakable message of government endorsement of Christianity. That’s what the Christian Nationalists in the religious right want. And that’s what courts have given them, by deliberately blinding themselves from the obvious religiosity in these matters. By ignoring the everyday encroachments of religion into government, our judicial system has painted itself into a corner. And we may well find ourselves, as a result, with a decision telling us that a 40’ concrete cross just isn’t a cross after all.