Berkley Center

The U.S. Supreme Court’s decision in American Legion v. American Humanist Association (2019) about whether the maintenance of the Bladensburg Peace Cross on public land by the state of Maryland violated the First Amendment's Establishment Clause raises a number of interesting questions. Here, I will consider the decision not as a legal matter of constitutional interpretation but as an expression of general philosophical views about what is relevant when considering whether states can uphold religious symbols in a religiously pluralistic society.

The Court focused on three types of reasons, which reflect views about what the relevant considerations are for determining whether state support for religious symbols is problematic or not. The first kind of reason focuses on the original or subsequent purposes of the symbol: was the intention to endorse a specific religion or something else? Here, the Court argued that it is difficult to determine original intent and that purposes for keeping symbols can change over time. The second reason concerns the message conveyed by the symbol: how do people understand it at a given time? Here, the Court argued that the meaning of an originally religious symbol can change so that it becomes non-religious. Finally, the Court focused on the significance and sense of familiarity attached to long-established symbols. Here, the Court argued that familiarity itself can become a reason for preservation and that the passage of time gives rise to a strong presumption of constitutionality.

The Court’s focus on original intent might be a symptom of an originalist approach to constitutional interpretation. However, whatever one thinks about originalism as a doctrine of legal interpretation, it seems misplaced as a principle for judging whether state support for religious symbols is problematic or not. If the underlying concern is to ensure that the state treats citizens equally, the relevant question seems to be whether state support for a religious symbol conforms with this goal or not, rather than what the historical intent behind a symbol might have been. Therefore, even if the Court is correct in pointing out that original intent is hard to determine, this does not prove that the cross is unproblematic. Rather, we should focus on something else other than original intent that better tracks the relevant concern regarding civic equality.

The other types of reasons adduced by the Court do concern something other than historical intent. I agree with the Court’s claim that the message conveyed by a symbol is not set in stone. The message conveyed is a matter of how receivers of the message interpret it, and interpretation changes based on different background assumptions and horizons of meaning. This is why it seems unwarranted to claim categorically that all religious symbols express a demeaning or negative view of non-adherents of the religious faith in question. Rather than categorical claims, a focus on the meaning of a symbol supports a contextual approach.

The Court’s third reason—focusing on the passage of time—suggests a distinction between what one might call vestigial establishment and neo-establishment. (See my chapter in the forthcoming Liberal Nationalism and Its Critics [Oxford University Press].) The idea here is that long-established symbols often do not express any civic inequality, whereas newly established symbols are more likely to do so. The Bladensburg Cross seems a good candidate for a vestigial religious symbol, which therefore might seem unproblematic.

However, taking the contextual nature of symbolic meaning and the temporality issue together, the passage of time is clearly no guarantee that vestigial symbols are (or remain) unproblematic (and therefore constitutional). A practice can be long-established and familiar and nevertheless uphold civic inequality; uncontroversial examples include the institution of slavery or subsequent racial segregation or, more recently, traditional gender roles. Whether a practice or symbol upholds civic inequality has to be assessed on a case-by-case basis against the social and political context obtaining at a given time. Context can change, for example through growing social tensions, rising political populism, and increased hostility to minorities. A vestigial symbol, state support of which might have been unproblematic, can become politicized and linked to new narratives of civic inequality, whereby state support would become problematic and effectively a form of neo-establishment.