Supreme Court’s ‘Peace Cross’ case, argued by Neal Katyal, demonstrates the fine art of pretending religious symbols aren’t religious


The Supreme Court Thursday ruled that a large cross erected as a memorial to the dead may continue to stand on public land in Maryland because it has many secular purposes.

In other words, the real verdict on the “Peace Cross” case is: Be careful what you wish for.

This was a Pyrrhic victory, because the case follows a long, sad tradition in church-state cases: pretending that religious symbols aren’t primarily religious to keep them from being bounced by the court.

The court’s 7-2 ruling reversed a lower court that said the cross was an unconstitutional endorsement of religion. Justice Samuel Alito Jr. wrote that while “the cross is undoubtedly a Christian symbol,” it also had many powerful secular purposes, including “historical landmark” and a “place for the community to gather and honor all veterans.”

Neal Katyal (Courtesy: Twitter)

In his oral argument before the Supreme Court, Neal Katyal, representing the Maryland-National Capital Park and Planning Commission, had declared, “not a single word of religious content appears anywhere” on the monument, and therefore it could be deemed a secular symbol.

That’s right, a giant cross – symbolizing the crucifixion of Jesus – is a secular symbol.

This isn’t the first time this has happened. To pass judicial scrutiny, advocates of having religious symbols or texts in public spaces have long attempted to argue that these monuments or books have mostly secular purposes.

In the second half of the 19th century, when Catholics resisted Protestant efforts to have the King James Bible taught in public schools, Protestants responded by arguing that the Bible was literature, not religion. Stanley Matthews, an attorney representing Protestants in a major court case in Cincinnati, suggested that the Bible passages be taught “not as the words that fell from the second person in the God-head . . . but as a beautiful specimen of English composition.”

For instance, to preserve blue laws that banned work on the Sabbath, Christians for many years argued that the statutes were intended to encourage public order and social cohesion, not to enforce a religiously ordained day of rest.

In 1956, the state of Pennsylvania tried the same thing in defending the Bible reading and Lord’s Prayer recitation in a Philadelphia case. “We’re teaching morality without religion,” the attorney for the school district said, according to the book “Ellery’s Protest.”

In 1983, the court said in Marsh v. Chambers that a prayer before the legislature was fine because it was an acknowledgment of the religiosity of the community. That’s right: A prayer wasn’t a religious expression.

In Lynch v. Donnelly (1984), the court said the creche that the city fathers of Pawtucket, Rhode Island, had displayed downtown since 1943 (along with a Santa Claus house, a Christmas tree and a “Seasons Greetings” banner) had only “remote” and “indirect” religious content because it “merely happens to coincide or harmonize with the tenets of some . . . religions.” It was really, they said, a history presentation. “The creche in the display depicts the historical origins of this traditional event long recognized as a National Holiday.”

The Supreme Court later separately concluded that a menorah was not a religious symbol because it was juxtaposed with Christmas trees. Just by being near the Christmas trees, which long ago lost their spiritual pizzazz, menorahs got secularized, too. Another judge suggested that a menorah could be transformed from a religious symbol to a secular symbol if Christmas lights were strung on a nearby tree.

In Oklahoma, the legislature in 2015 allowed local governments to display the Ten Commandments as an important historical document, not a religious one.

Time and time again, those arguing for more religion in the public square have said the symbols – or books or crosses – had little religious meaning. It’s as if judges and advocates enter into a mutual pact of self-delusion to preserve these religious symbols. Creches aren’t religious, and neither is the Bible, and neither is the cross.

Even the Supreme Court’s “Peace Cross” ruling dabbled with such reasoning.

“Even if the original purpose of a monument was infused with religion,” the community was now preserving it “for the sake of their historical significance or their place in the common cultural heritage.”

In other words, the “passage of time” has sufficiently de-Christianized the cross and made it acceptable.

This approach has two problems. First, it invites religious leaders to deceive themselves and the public. To claim that a creche – a depiction of the birth of the savior – is not a religious scene is disingenuous. To get the courts to agree to having the Ten Commandments posted in two counties in Kentucky, the state argued that the tablets weren’t religious; they were symbols of “the foundations of American Law and Government.”

The approach of cutely sneaking in religion through the secular back door strips symbols of their spiritual meaning. At the same time that religious leaders want Americans to revere their sacred texts more seriously, they cheerfully inform judges that these writings should not be taken too seriously. What’s the point of getting people to read the Bible if you have to declare, in effect, that it’s not a revelation from God? Does Christianity really benefit from the argument that the cross has nothing to do with Christ’s sacrifice? It seems to me that secularism, not religious freedom, is advanced by the notion that religious symbols are fine as long as we pretend they’re not religious.

Believers could lose more than they gain from this gambit.

This approach has been embraced because there’s a broad consensus that society would be worse off if courts aggressively purged religious symbols. But it would be better if we came up with a pluralistic compact that allowed religious symbolism and its meaning but did not favor a particular religion.

Under such an approach, the “Peace Cross” in Bladensburg could be allowed – along with other religious tributes – as a manifestation of our respect and tolerance for religious expression. We could celebrate religious diversity without requiring the de-spiritualization of faith.

Such an approach would be consistent with the Constitution and, just as important, would end the practice of mutual self-deception that has driven efforts to create defensible secular rationalizations for religious symbols.

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Waldman is the author of “Sacred Liberty: America’s Long, Bloody and Ongoing Struggle for Religious Freedom.”



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