News Analysis

The wrong way to defend public religious symbolism


Later this month, the Supreme Court will decide whether a Maryland parks commission violates the Constitution by administering a World War I monument which takes the shape of a Latin cross.

Three Maryland residents and the American Humanist Association wish to see the memorial, the Peace Cross, removed. The 4th US Circuit Court of Appeals agreed, over a dissent that warned of the removal of crosses from Arlington National Cemetery, which falls within the 4th Circuit’s jurisdiction. That is troubling enough; but the argument the state parks commission makes in defence of the cross is more troubling still.

The commission takes a position which is legally modest and morally alarming. It effectively says that the Peace Cross is above all a secular monument: the religious element is permissible, the commission argues, because it is only incidental. In other words, the Peace Cross may remain, provided we deny what it is.

The commission relies on several precedents to make this argument. The first is the 1984 Lynch v Donnelly decision, in which the high court found that Pawtucket, Rhode Island, did not violate the First Amendment by erecting a crèche within the city’s holiday display. There the Court explained that the city was serving two legitimate interests: celebrating a holiday the federal government itself observes while noting its religious origins. What’s more, whatever sectarian content the crèche conveyed was diluted by other components of the display, such as a banner that read “Season’s Greetings”.

The commission’s briefs at the high court also draw heavily from Justice Stephen Breyer’s concurring opinion in Van Orden v Perry, a 2005 case involving a sculpture of the Ten Commandments on the grounds of the Texas statehouse. Justice Breyer found that the statue was constitutional because it is replete with secular images, situated in a non-religious setting, and was installed by a civic group.

These rulings imply that public religious symbolism can be constitutional – but only if it is evacuated of its original moral content and subordinated to principalities and powers. In this case, the cross – which the federal appeals courts have rightly called “the preeminent symbol of Christianity” – is the subject of that deconstructive project. Apostasy is the cost of preservation.

The state goes further still. Maryland notes that government-sponsored religious imagery can be justified when used to advance “shared values like pluralism and respect for law” among other cherished modern mantras. The cross’s substance is not only repudiated but recast to flatter liberal sensibilities.

Such retreats into legal relativism, increasingly a feature of religious liberty litigating, put the faithful in a defensive crouch which does not seem tenable in view of modernity’s aggressively secular instincts. The political scientist Hadley Arkes has argued that a major shortcoming of contemporary conservative jurisprudence is its failure to meet the left’s moral challenges. Where progressive litigators make claims about equality and human freedom, textualists and originalists offer tepid responses about what the language of the law allows, backed up with the usual bromides about judicial restraint.

Conservative cause lawyers are not representing the parks commission. The state’s lead counsel is Neal Katyal, who served as acting Solicitor General in the Obama administration. Nonetheless, the dynamic that Arkes describes is in play. The American Humanist Association (AHA) is making a normative argument for religious neutrality. Maryland has replied with technical, fact-specific arguments about the memorial’s history and features, not a competing moral vision. That’s probably sufficient to prevail in this case, but it’s an acquiescence to the AHA nevertheless.

Another party is giving a separate defence of the Peace Cross: the American Legion, which erected the memorial in 1925. The Legion makes a different argument: it says the Peace Cross passes constitutional muster because it does not coerce observers into Christian religious observance. Current case law provides that government may not (in actuality or appearance) endorse a particular religion, but the Legion believes that is wrong as a matter of original meaning. Coercion, not endorsement, they say, is the relevant analysis.

Several justices have expressed extreme dissatisfaction with the Court’s deeply confused jurisprudence about religion in public life. They may find the clarity they seek in the Legion’s proposal.

The parks commission may well prevail. Its brief offers the high court a consensus solution which does not break new legal ground. Such a solution is tailored for Chief Justice John Roberts, who is eager to steer the Court away from controversy in this fraught political moment. Justice Breyer, whose Van Orden opinion remains influential, will find much of appeal in the commission’s brief. Justice Elena Kagan may also come along, though she is something of an establishment clause hardliner.

That centrist triad is worth watching carefully when the Peace Cross case is heard at the high court on February 27. A large majority could realistically form to protect the monument for the narrow reasons the commission advocates. It would be a hollow victory.