Once again the complexities of life and the gray areas of governing require the courts to make a decision that establishes the lowest common denominator and insults the intelligence of millions of Americans. I’m referring to the Ninth Circuit Court of Appeals decision which determined that a giant cross towering over a war memorial in La Jolla, CA is unconstitutional. Let me be clear that it is probably unconstitutional under the current concept of the 1st Amendment. I’m not really taking issue with this specific decision as I am with the way our courts and government, in general, apply the concept of church/state to the Establishment Clause of the 1st Amendment.
It was only a matter of time before the right lawsuit came along to find this monument unconstitutional.
My point is much larger. Currently, we have a quite limited and short-sighted view of the “separation of church and state.”
As Jon Meacham said in Newsweek’s extensive review of church and state a few years ago, “we have, in this country, a separation of church and state not religion and politics.”
Along those same lines, it seems odd that we expect the government to pretend like religion and religious symbols do not exist. We love to label our politicians during campaigns but immediately expect them to keep their faith a secret while governing. Forcing the government to remove all religious symbolism from federal land, buildings and consciousness ensures that no one religion receives undue attention or support. It does.
But it is also the lazy solution. It does not support a diverse and complex national electorate but serves to sterilize a key piece of the human experience.
Daniel Mach, Director of the ACLU Program on Freedom of Religion and Belief said, “We are pleased that the court recognized the fundamental principle barring the government from playing favorites with religion.” The ACLU press release goes on to say, “Unlike religious symbols on individual headstones…[this cross] sends a divisive message valuing the sacrifices of some service members above all others.”
I disagree. The government, neither California nor the Feds, has valued the sacrifices of its service members any differently by including or excluding this religious symbols. I do not see a stated preference for crosses either. In fact, by allowing a cross to stand since 1913, the government is simply maintaining a symbol that reflects the historical significance of the site and symbol. It is not an insult to any service members who do not worship the Christian god or any god.
Aren’t we smart enough to distinguish between a 98-year-old monument and the government establishing policies which elevate or prefer Christians?
Believe it or not, I’m a strong supporter of a religious and morally neutral government. I do not believe the government should be responsible for shaping our religious and moral experience. But let’s be honest, fighting to keep government property from including any marks of religion and using the government to force moral and religious beliefs on its citizens are barely even on the same spectrum. I don’t want to open the floodgates or anything on this issue, but we treat Americans like they possess no common sense and no discriminating powers whatsoever. Is that what’s necessary in a complex society?
The implication of the ACLU’s statements is that seeing this giant cross alienates non-Christians. I find it hard to believe that atheists, Jews, Muslims or Hindus are relying on the state of California or the US government for validation or, better yet, protection against having to view Christian symbols.
Isn’t there a difference between the government maintaining an environment that supports the free expression of all religions and an environment which acknowledges the existence of no religions?
Perhaps it’s a glass half empty, glass half full thing, but perhaps it’s more than that. It goes to the heart of how we think about each other and how the courts view the general public.
This cross does not limit the expression of other religions or establish Christianity as the favored religion of veterans. As I said at the beginning, this lawsuit, filed by two veterans and the Jewish War Veterans of the USA, uses the current condition of 1st Amendment jurisprudence to successfully establish this cross as unconstitutional. Under the current concept, it is unconstitutional. But this is an opportunity for Congress (through the legislative process) or higher courts (through interpretation) to establish a higher standard for the 1st Amendment.
I believe in an America where we can recognize, talk about and debate religion while keeping the government out of it. That means the government recognizing all religion not pretending like there are none. If a small group of Christians choose to hold 6 AM Easter morning services at the base of this cross (on federal land), does that mean that the government has established Christianity as a national religion? Does that 1 hour long prayer meeting violate anyone else’s free expression? Can’t another group simply hold a 6 AM meditation there also? Or on another day sacred to them?
What if a Muslim man chooses to lay down a prayer rug while hiking in Yellowstone? Does that mean the government has allowed or established Islam as a preferred religion in Yellowstone National Park?
I know this is dangerous, complex territory because there is a high threshold for abuse. Yet, isn’t it something we prefer to be rich in depth and complexity rather than sterilized? For a long time, I’ve felt there’s a difference between protecting all religions equally and recognizing none publicly. I guess I’m hoping for something that is unlikely because it is very difficult practically. But I think there is a place in our society and in the legal community for church and state jurisprudence that recognizes that religions exist, need to co-exist and the government can be referee without simply ignoring all religious symbolism.