You do not need to be as sharp as a mohel’s blade to figure out that I am not the most religious guy in the world. In fact, take the view that the First Amendment provides us both freedom of religion and freedom from religion.
So when I see someone file a lawsuit to remove a huge crucifix from public land, my initial reaction is “bravo.”
But, sometimes my fellow travelers in the freedom from religion movement are, I think, a bit too zealous. Today’s news brings us such an example.
In American Humanist Ass’n v. Maryland-National Capital Park and Planning Comm’n, the Humnanists are seeking to tear down a huge concrete crucifix from public land in the DC Suburbs. Fundraising for the cross began in 1918, and it was formally dedicated in 1925. The purpose of it was to honor WWI casualties, with a distinctly christian message.
In fact, the fundraising pledge made it pretty obvious that the intent was clearly religious in nature (as if a Godzilla sized cross needed any other clues). 
“To any passerby, a huge cross such as this can only be understood as endorsing Christianity,” said Appignani Humanist Legal Center Legal Director David Niose. “On public property, that violates the Establishment Clause. We can all support memorials to those who have fought for our country, but they cannot take the form of a massive religious symbol on government property.” (source)
I see their point.
When the government endorses religion, that violates the Establishment Clause and should be prohibited. Displays of crucifixes, especially in unavoidable and huge displays on public property, could very well be construed as a governmental endorsement of the christian faith. When government uses a religious symbol to try and cram that religion down the citizens’ throats, that violates the Establishment Clause.
The test is given to us in Lemon v. Kurtzman, 403 U.S. 602 (1971).
- The government action must have a secular purpose;
- Its principal or primary effect must be one that neither advances nor inhibits religion;
- The government action must not foster an excessive government entanglement with religion.
Permissible conduct must satisfy all three requirements. Edwards v. Aguillard, 482 U.S. 578, 583 (1987); Vernon v. City of Los Angeles, 27 F.3d 1385, 1396-97 (9th Cir. 1994). Despite the colorful potshots that conservative justices like Scalia have taken over the years at this standard, Lemon remains good law. (Scalia wrote “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 397 (1992)).
In 2005, the Supreme Court issued a pair of decisions that many say only leads to more confusion when considering whether a religious display violates the Constitution (I think the pair makes it abundantly clear). The cases were McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) and Van Orden v. Perry, 545 U.S. 677 (2005).
In McCreary, two Kentucky counties posted King James versions of the Ten Commandments in their courthouses. One county had a local pastor unveil the display. After the legal battle heated up, they dishonestly put up post hoc secular justifications for the displays, and added other tokens to the displays to water down the religious message, but the court saw through this. The purpose of the displays was to promote Christianity, and that isn’t allowed under the Establishment Clause.
In Van Orden, the Decalogue had been standing there for 40 years among 17 monuments and 21 historical markers, “all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time.” (source). In other words, the monument was placed there at a different time, as part of a larger display, and nobody was using it to try and shove religion down any one else’s throat.
I do not know where I would draw the line, but when a display has been around for almost 100 years without incident, I think it might be time to let it be. I wouldn’t give a complete pass based on age, as there are some pretty old displays that really do need to be removed. For example, the “Easter Cross” in La Jolla, CA. It was originally put up in the 1950s for no other purpose but to promote Christianity. In fact, part of its purpose and effect was to signal to Jews that they were not welcome in La Jolla. (source) In 1989, when litigation over the cross began, the dishonest christians decided to violate one of their Ten Commandments and lie that the cross was really a “war memorial.” They then began the long pretextual process of retro-fitting it as a war memorial. That one doesn’t get a historical pass in my book.
The Bladensburg Cross, on the other hand, might have been put up for a religious purpose. But, it was put up in 1925. Would it matter to me if it was 1935, 1945, 1965? I do not know where to draw the line when it comes to age — but, I think that the longer it has been there, the more of a pass it should get — especially if it was sincerely placed there as a war memorial. I recognize that a lot of Atheists, Jews, Muslims, Mormons, and whatever died in WWI, and the memorial is not exactly a symbol of inclusion. But, in 1925, things were a bit different. I hardly think that anyone involved in the fundraising or decisionmaking process was doing so out of a 2005 style “stick in the eye to the First Amendment.”
I think we need to give Oren a little more juice. Perhaps a “historically acceptable” test to import into the Lemon test and ask the following questions.
- Has the monument been in place for a very long time without incident?
- Was it erected for any improper purpose?
- Has it come to stand as a symbol of exclusion?
Atheists really need to learn to pick and choose their battles better. In American Atheists v. Duncan, atheists won a case in which dead state troopers received crucifix roadside memorials. In Weinbaum v. Las Cruces, they lost when they tried to force a town to change its logo and name. Battles like those, and this new one in Bladensburg, simply dull the edge of the knife when Atheists seek to remove religious displays that truly do deserve to be destroyed.
