Viewpoints

The Supreme Court just blurred the sacred line between church and state. Why?

The Supreme Court building in Washington, D.C.
The Supreme Court building in Washington, D.C. Associated Press

Religious symbols do not belong on government property. The Supreme Court thus seriously erred in reversing a lower court decision and allowing a 40-foot cross to remain at a busy intersection on public property in Prince George’s County, Maryland.

The First Amendment prohibits the government from taking any actions “respecting an establishment of religion.” In concluding that the large cross did not violate the First Amendment, the Supreme Court stressed that it was put there after World War I as a tribute to those who died in military service and thus should be regarded as a tribute to war dead.

But a cross is a Christian religious symbol, not a universal symbol for those who died in military service. Headstones in Jewish cemeteries, including for those who died in a war, do not display crosses. For those who believe in Christianity, the cross represents – both then and now – the unique event of Jesus’ crucifixion and his subsequent resurrection in a triumph over death.

Justice Samuel Alito’s majority opinion said that the cross “has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular.”

I would think Christians would rebel at the characterization of this deeply religious symbol as “secular.” Certainly as a Jew, I do not see the cross ever as a secular symbol. It is the quintessential symbol of Christianity.

Opinion

As Justice Ruth Bader Ginsburg explained in her dissent: “An exclusively Christian symbol, the Latin cross is not emblematic of any other faith. The principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy … The cross affirms that, thanks to the soldier’s embrace of Christianity, he will be rewarded with eternal life.”

Alito’s opinion also emphasized that the cross had been there for a long time and that removing it would be perceived as hostility to religion. But a constitutional violation is not excused because it has gone on for a long time.

The court struck down laws prohibiting same-sex marriage and statutes requiring segregation even thought they had long been on the books.

Any enforcement of the establishment clause of the First Amendment might be characterized as hostility to religion by those who want there to be more government support for religion and more of a religious presence in government. But that is wrong and misunderstands the First Amendment.

erwin chemerinsky.JPG
Erwin Chemerinsky

As Thomas Jefferson said long ago, there should be a wall that separates church and state. Enforcing that wall is not hostility to religion, but a recognition that in the United States our governments should be secular. The place for religion is in the private realm of our homes and places of worship.

For decades, the Supreme Court has held that the government cannot put religious symbols on government property in a manner that appears to endorse religion or a particular religion. For example, in 1989, the court held that a nativity scene, by itself, on government property violates the establishment clause. In 2005, the court declared unconstitutional a county ordinance requiring the Ten Commandments to be posted in all public buildings. The Supreme Court, in these and other cases, stressed the endorsement for religion.

A 40-foot cross at a busy public intersection can be seen only as an endorsement of Christianity. Under long standing precedents, the Supreme Court should have affirmed the lower court and declared this unconstitutional.

Before she retired from the bench, Justice Sandra Day O’Connor powerfully wrote: “At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish … Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

Why indeed? Yet that is exactly the path of the Supreme Court in allowing profoundly religious symbols to be publicly displayed on government property.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

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