During the Civil War a man named George Thatcher Batch wrote the Pledge of Allegiance, and Congress adopted it in 1942 as part of a law called the “Flag Code.” Since that time, it has been changed once, in 1954, with the insertion of the words “under God” between “one nation” and “indivisible.” The added words were not original. Lincoln used them in 1863 in the Gettysburg Address, resolving “that this nation, under God, shall have a new birth of freedom.”
Religion and the Pledge have not had an entirely smooth relationship. In West Virginia State Board of Education v. Barnette, a 1943 Supreme Court case brought by Jehovah’s Witnesses, the Court held that mandatory recitation of the pre-“under God” pledge in public schools violated the First Amendment. Government may not compel anyone to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” No exceptions.
The First Amendment enshrines separation of church and state with these words. “Congress shall make no law respecting an establishment of religion,” immediately followed by the words “or prohibiting the free exercise thereof.” Under the Fourteenth Amendment, “Congress” means all of government, federal, state, and local.
The meaning of the words “respecting an establishment of religion” is less than crystal clear, but we do have some historical guideposts. In 1802, Thomas Jefferson wrote a letter to the Danbury Baptist Association, stating that the purpose of the words was to “build a wall of separation between Church and State.” In 1803, James Madison, author of the First Amendment, wrote a letter objecting to the use of public land for churches, stating that the purpose of the establishment clause was to “keep from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries.” John Adams said that “the government of the United States is not, in any sense, founded on the Christian religion.”
Today, our national attention is on Trump’s wall, rather than Jefferson’s, but this year’s Supreme Court term will likely tell us whether, and to what extent, government is allowed to use public funds in a way that many see as supporting religion. In November, the Court agreed to hear a case called The American Legion v. American Humanist Association. It deals with a World War I memorial located at a busy intersection in Bladensburg, Maryland, and maintained at public expense. The problem is that this forty-foot high marble and cement memorial is in the shape of a cross, which is the symbol of Christianity. According to the Fourth Circuit Court of Appeals, the average citizen “would fairly understand the Cross to have the primary effect of endorsing religion.” As such, the court majority concluded, the cross “excessively entangles the government in religion.”
The word “entangles” comes from a 1971 case, Lemon v. Kurtzman, where the Court applied the Establishment Clause to strike down a state law allowing the use of public funds to reimburse private (mostly parochial) schools for salaries paid to teachers of non-religious subjects. The late Justice Scalia later compared the so-called “Lemon” “entanglement” test to “a ghoul in a late night horror movie.”
One can sympathize with Scalia’s colorful comparison. The word “entangle” doesn’t provide a lot of guidance, and the later “Ten Commandments” cases simply add to the confusion. On the very same day, June 27, 2005, the Supreme Court, in back-to-back decisions, held that the public display of the Ten Commandments both is and is not constitutional. In Van Orden v. Perry, the Court decided that a Ten Commandments statue donated by the Fraternal Order of Eagles to the State of Texas, and installed on the Capitol grounds in Austin at the Eagles’ expense, was more secular than religious. In McCreary County v. American Civil Liberties Union, the Court held that displaying the Ten Commandments at a public courthouse in Kentucky was motivated by a religious “purpose” and therefore violated the Establishment Clause.
If, as Emerson said, “a foolish consistency is the hobgoblin of little minds,” Justice Breyer passes the test. He was in the majority in both of these 5-4 decisions. Justice Souter, on the other hand, dissented in Van Orden and wrote the Court’s opinion in McCreary County.
What, then, can we say about the Bladensburg cross? It comes down to where to draw the First Amendment line when it comes to “religion in the public square.” Here the cross, a monument to 49 local soldiers who died in World War I, has stood for over ninety years. Does the passage of so much time make it “secular?” And, unlike the forced recitation of the Pledge, not to mention a non-denominational school prayer (forbidden by Engel v. Vitale, the “school prayer” case), here the question is about a “passive” monument. No one is being asked, much less required, to do anything – unless you count unavoidably seeing the cross as you drive by the intersection.
One way of looking at the First Amendment is to say that the Establishment Clause simply prevents government from dictating religious beliefs or telling anyone what or how or where to worship. At the other extreme, Jefferson’s “wall” could be understood as requiring an absolute prohibition against any governmental role, whether active or passive, that might be taken to be an endorsement of religion.
I have little doubt that the Court will reverse the lower court’s ruling. Justices Thomas, Alito, and Gorsuch are sure votes for the monument, and I expect Justice Kavanaugh and Chief Justice Roberts will join them. Who knows, Justice Breyer may make it six.
But the wisdom of such a decision is open to doubt. Even if the government has a “secular” motive, intending only to honor those who gave their lives, a significant portion of the public may regard the Bladensburg monument as endorsing religion, just as a Star of David on someone’s front lawn would be seen as supporting Judaism. If government erects, displays, or pays for a religious symbol, whether it be a Cross, a Star of David, a Star and Crescent, or the Wheel of Dharma, should the constitutional outcome depend on the subjective intent of public officials? It all depends on the meaning of the First Amendment word “establishment.”
Now might be a good time for the Supreme Court to remind all of us that the Constitution supports all religions but favors no one faith over another. One way to do so would be to affirm that Jefferson’s wall still stands and that the Cross in Bladensburg should not.