Long ago, Thomas Jefferson said there should be a wall that separates church and state. For over three-quarters of a century, the Supreme Court has held that the First Amendment creates such a wall in its prohibition of the government making any law respecting the establishment of religion.
Now, conservatives want to obliterate that wall. A case argued in the Supreme Court on Feb. 27, 2019 — American Legion v. American Humanist Association — might give them an opportunity.
A wall separating church and state means that our government should be secular. It means the place for religion is in the private realm of our homes, our places of worship and our daily lives. For the government to be aligned with religion inevitably causes some to feel like insiders and others to feel as outsiders. Moreover, James Madison explained that it’s reprehensible to tax some to support the religions of others.
But conservatives reject the idea of a wall separating church and state — and seek to accommodate religion and government. They believe that the government violates the establishment clause only if it coerces religious participation. Commentators have noted that there appear to be five justices willing to change the law of the establishment clause and to adopt the conservative vision that only government coercion violates the Constitution.
The establishment clause now has returned to the Supreme Court in American Legion v. American Humanist Association. The case involves a 40-foot-tall cross that sits at a busy intersection in Bladensburg, Maryland. The cross was erected in 1925 as a monument to 49 soldiers from Prince George’s County, Maryland, who died during World War I.
In 1961, the state government acquired the cross and the land it sits on, in part because of concerns about traffic safety.
A lawsuit was brought challenging the cross as violating the establishment clause. The district court ruled for the government, seeing the cross as a memorial to war dead. But the United States Court of Appeals for the Fourth Circuit reversed that ruling, concluding that the cross violates the establishment clause because it “has the primary effect of endorsing religion and excessively entangles the government in religion.”
The Court of Appeals said that it’s impossible to “ignore the fact that for thousands of years the Latin cross has represented Christianity.” The Court of Appeals also explained that the average citizen “would fairly understand the Cross to have the primary effect of endorsing religion.”
As the Court of Appeals noted, a cross is an unmistakable Christian religious symbol and thus the large cross on government property is an impermissible establishment of religion. At an oral argument several years ago in Salazar v. Buono (2010), which involved a large cross in a federal park, Justice Scalia asserted that a cross is a universal symbol for war dead. Peter Eliasberg, representing the ACLU in that case, replied that he had been in many Jewish cemeteries and never saw a cross on a headstone.
If the Supreme Court were to adopt the “coercion test” there would be no limit on religious symbols on government property. A city could put a large cross atop city hall or in front of its meeting room. No longer would the test be whether the symbol is an endorsement of religion or a particular religion. In fact, under the coercion test, there would be little left of the establishment clause. For instance, there would no longer be any restriction on government support for parochial schools.
Based on the oral argument in the Court, I think it is likely that the Court will reverse the Court of Appeals and allow this religious symbol on government property.
A 40-foot cross on government property is troubling enough, but even more worrying is that the Court now will change the law to eliminate the idea of a wall separating church and state.
Before she left the Court, Justice Sandra Day O’Connor asked why we would want to change a constitutional approach to religion that has worked so well for so long and replace it with one that has failed in so many countries. Why, indeed.