It Is, But It Isn’t

When is a religious symbol not a religious symbol? When religious folk want to keep it on public land and its convenient to argue otherwise.

That kind of practical illogic is the only way I can understand what’s commonly called “ceremonial deism.” That’s the argument that some religious expression in the public square – “under God” in the pledge of allegiance, a squishy non-denominational prayer, a copy of the 10 Commandments in a courthouse – is not really religious after all. It’s been drained of its religiousness due to its pervasiveness in the public cultures. It’s more “civic” than “sectarian” and, therefore, doesn’t pose a First Amendment problem.

This makes no sense for a couple of reasons. For one thing, the folks who tend to foist these things on the public are often deeply religious and are doing it because religion (their particular brand, of course) doesn’t have the sway it used to in America. So how can it be non-religious once it’s put up in a public place? If you’re so willing to water down the meaning of the act or symbol to make it First Amendment compliant, what’s the point of going through with it in the first place? For another, it requires some real illogic to support it, such as that on display during a Supreme Court argument last week.

Salazar v. Buono is about a cross erected in the middle of a public reserve in California (a desert, for the most part) as a memorial to fallen World War I vets. Why the VFW, who put up the cross, went with an obviously Christian symbol isn’t clear. What is clear is that when a Buddhist asked to put a complementary memorial in the vicinity, the Government said no. A lawsuit followed (although it was brought by someone other than the Buddhist). To dodge any First Amendment problems, Congress sold the land under the cross back to the VFW, with a few reservations. The Supreme Court is trying to figure out if that cures the First Amendment problem that the Ninth Circuit recognized initially.

At oral argument, most Justices seemed to agree that the underlying First Amendment issue – whether the cross violated the Establishment Clause – wasn’t actually live, for procedural reasons. The only issue was Congress’s attempt to get around the problem. Except for Justice Scalia, who wanted to go back to square one:

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --

MR. ELIASBERG: I believe that's actually correct.

JUSTICE SCALIA: Where does it say that?

MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans --

JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.

(Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.

MR. ELIASBERG: Well, my -- the point of my -- point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross. This cross can't honor us because it is a religious symbol of another religion.

That's at pages 38-39 of the transcript.

What's really outrageous is that a Supreme Court Justice could suggest that the Christian cross - - perhaps the most successful visual brand/icon in human history - has some other generalized nonreligious meaning. Or maybe it does. In which case, there's no need to keep it on public land, right?