Justice Felix Frankfurter was right when he announced in Minersville School District v. Gobitis (1940) that “[w]e live by symbols.” Those small markers of time and place that serve to colonize the mythmaking potential of the American imagination and form the constitutive significance of a religious nation. Those blemishes of white supremacy or the Puritan contribution towards the symbols that formed the “fantasy of American identity.” A struggle, to quote James Davison Hunter, “to monopolize the symbols of legitimacy”—an ongoing project of social engineering that animates those claims that rest alike on anti-discrimination laws and Establishment Clause jurisprudence.
Steven D. Smith explains: “A community is a community because people think of it as one, or imagine it as one. And public symbols are the matter around and by which such imaginings occur.” And, so, with the memorial cross in Maryland, we find the ancient struggle between religion and secularism that dates back at least to Bishop Ambrose's threat in 384 AD to excommunicate Emperor Valentinian II if he restored the Altar of Victory to the Senate House. These are fights that Smith argues raged into modernity as the “badges and incidents” of classical paganism survived, “either in their own forms or as incorporated into the official Christian faith and culture.” When T.S. Eliot made his remarks in The Idea of a Christian Society (1939) that the modern world is a struggle between Christianity and modern paganism, he spoke of an imminent return of the pagan ideal through a renewed form of secularism that rages against “Christian institutions, Christian ethics, and the Christian view of man,” against that untoward appeal to a truth transcendent.
Where Christian institutions sought to instill the ideal of a Christian nation throughout the 1950s, in more recent years, Smith explains in his new book Pagans and Christians in the City (2018), the “progressive” camp strategy has been “to capture what had previously been a more neutral framework or arrangement for governance and turn it to the cause of secularism or immanent religion.” With the culture wars increasing in temperament, the Constitution became a partisan weapon to advance the respective ideals of “orthodox” and “progressive” constituencies.
Religious freedom becomes a microcosm for these disputes, with each side vying for their respective positions to define society at large, sensing that to give an inch is to give an inch too much and the only way to limit their enemies’ reach is to remove their arms. This leads to a “growing and increasingly acrimonious polarization among people of different religiosities” and often “sucks more and more of the previously moderate or complacent into its vicious vortex—including Justices of the Supreme Court.” As Rowan Williams explained: “[a]ggression not dealt with in the inner ecology of social beings seeks outlets—if not against a stranger, then by making strangers of fellow-citizens.” And aggression is one thing this country has in surplus.
Which is why the Bladensburg Cross is much more than an 80-foot granite piece of rock on public land commemorating the dead to the living, in the same way that the tablets of stone brought down from Sinai were more than solidified holy impressions for moral nation building. And while the Christian community is right to ask for the preservation of dignity that comes with their participation in public life, I wonder if they see the irony of the crucifix becoming a “secular symbol” that is made to stand as an “embedded feature[] of a community’s landscape and identity,” as the Court's opinion in American Legion described it. Frankfurter was right when he said again in his dissent in West Virginia State Board of Education v. Barnette (1943) that “[e]ven the most sophisticated live by symbols.” But he was even more right when he emphasized that “[t]he significance of a symbol lies in what it represents.” A hollow symbol represents only an empty reality and with the decision for Maryland rests the loss of historical motivation. With the passage of time, the potency of a timeless act becomes a blurred vision devoid of meaning, with only “place and form” to keep its memory alive.
It was Teddy Roosevelt, who, when asked to put “In God We Trust” on a 10-dollar gold coin, rightly refused, arguing that “[a]ny use which tends to cheapen [the beautiful and solemn sentence] and above all any use which tends to secure its being treated in a spirit of levity, is from every standpoint profoundly to be regretted.” This victory will surely prove the necessity of fine-tuning the period of sectarian-to-secular exchange in the administration of historical context. It will also help strengthen the “the binding tie of cohesive sentiment” among the religious community at the expense of those on the other side. But it will do little to administer the much-needed antidote “to safeguard the nation's fellowship.”
