In its June 2019 decision in American Legion v. American Humanist Association (the Bladensburg Cross case) the U.S. Supreme Court ruled by a 7-2 majority that the Latin cross erected in 1925 in Bladensburg, Maryland, to honor WWI veterans does not violate the Establishment Clause, in spite of the fact that it now stands on government land. The majority was a fragmented one. The plurality opinion argued that—because of its background—the Bladensburg Cross serves a secular purpose of historic remembrance, though several judges filed concurring opinions.
This comment takes on two issues. First, it asks whether state-supported Christian religious symbols are inclusive enough for a pluralistic present-day American society, and answers mostly in the affirmative. Second, it argues that the Bladensburg Cross case is a not a workable precedent—and it is a good thing, too.
Can a distinctly Christian state-supported symbol act as an all-inclusive symbol in a pluralistic society? The answer suggested here is: in general, we do not know; within the bounds of present-day American society and, more narrowly, the Bladensburg Cross case, yes. To illustrate the reasons for this, parts of Justice Ruth Bader Ginsburg’s dissent in the Bladensburg case will serve as a starting point of analysis.
Justice Ginsburg’s dissent reiterates the well-known endorsement/exclusion theory: the perceived or actual state endorsement of a specific religious symbol sends a “message of exclusion” to non-adherents. When applied to the Blandensburg Cross, the theory unfolds as follows. Seeing a Latin cross on public land, a non-adherent to Christianity cannot help but think "I get the message. This is a Christian space and I had better blend in, lest I be marginalized or shipped out." The state endorsement, real or perceived, makes the “message of exclusion” an act of exclusion. And this is wrong, Ginsburg argues, because, among other things, nowadays 30% of the American population is non-Christian.
Although it flows seamlessly, the endorsement/exclusion theory over-exaggerates somewhat and is over-deterministic.
For one, if the Bladensburg Cross indeed radiates a message of exclusion, then presumably it has been doing so for almost 100 years. During that time, however, the number of non-adherents to Christianity (agnostics, atheists, Buddhists, Hindus, Jews, Muslims, and many others) in Maryland, the state where the Bladensburg Cross is located, grew to 31%. If the endorsement/exclusion theory is correct, such increase should not have occurred, or should have been minuscule. Why didn’t the “message of exclusion” keep non-adherents out, or low in number and social status? The fact that non-adherents in Maryland are doing a great many things in all levels of society undisturbed by the Bladensburg Cross might lead many of them to say "Why should I mind the cross? Why don't we keep it this way? In any case, the cross now serves as a symbol of our shared history."
The American Legion plurality used the latter logic as a part of its theory of secular purpose. Unlike the endorsement/exclusion theory, which is communicative, the theory of secular purpose is instrumental. It holds that so long as the religious symbol serves some secular purpose in a specific historical context, then religious connotations are not a constitutional problem. The argument holds this to be true irrespective of how anyone feels about the attribution of a profane meaning to religious symbols (on this, see Justice Brett Kavanaugh’s concurrence) or about the banality of the concept of secular purposes (secular purpose being a vacuous concept ready to absorb any content).
Another flaw with the endorsement/exclusion theory is that it rests on the assumption that non-adherents to Christianity, upon seeing the cross, will all react in the same way and automatically feel as invalidated outcasts. This assumption was perhaps correct in the past but is now over-deterministic. As noted above, 31% of the current population of Maryland is an internally very diverse group of non-adherents to Christianity. Without further evidence, one cannot claim that most non-adherents uniformly think of the cross as a “message of exclusion”—it may, in fact, be quite the opposite. So increased diversity is not sufficient proof to support the removal of the cross.
This analysis illustrates two general points.
First, to claim that an actually or seemingly state-endorsed Christian symbol within a diverse society is by definition exclusionary is to commit to an absurd reductio ad Christentum. Symbols cannot become suspect simply because they happen to originate in Christianity.
Second, the secular purpose theory, which suggests that we can convert our interpretations of symbols from a religious mode to a secular one, is a judicial escape option invented to avoid upsetting society’s habits of the heart. When used, the secular purpose theory tends to portray religious symbols as overly mundane. This often comes across as disingenuous and is perhaps ill-advised. As the former judge of the German Constitutional Court Ernst-Wolfgang Böckenförde argued, the free and liberal state lives on premises that it itself cannot deliver. The humanistic meaning now attached to many Christian symbols is a result of the relaxation of religious rules and doctrinal demands of Western Christianity and forms a part of these premises.
The Bladensburg Cross case does two things for Establishment Clause cases involving religious symbols and symbolic practices. Firstly, it re-orients lower courts away from utilizing the Lemon v. Kurtzman (1971) three-prong test (which holds that a state action is constitutional if it has a secular purpose, has no effect of advancing or inhibiting religion, and does not involve high levels of entanglement of government and religion) toward relying on Marsh v. Chambers (1983), Van Orden v. Perry (2005), and Town of Greece v. Galloway (2014). Secondly, it creates “a presumption of constitutionality for longstanding (religious) monuments, symbols, and practices” (Justice Samuel Alito, for plurality). This is both bad news and good news.
The bad news is that the constitutionality of longstanding monuments, symbols, and practices is only presumptive and therefore can be rebutted. Hence future judgments might hinge on judicial reinterpretations of history and religion performed with an eye on the interests of contemporary social actors. The result might be a cacophony of decisions, since some judicial reinterpretations of history and religion make the sociology of religion look like Newtonian physics.
The good news is that cacophony of decisions that might follow in the wake of Bladensburg Cross case will not necessarily be detrimental. Given an infinite variety of potential conflicts between law and religion, consistency is not a virtue. Virtuous inconsistency is a reason for courts’ peppering of their Establishment Clause decisions involving religious symbols with a ream of lengthy concurrences and dissents.
None of this is to suggest that in no case can the state endorsement of religious symbols or symbolic practices act as a mechanism of an effective exclusion targeted at specific group(s). In present-day American society, however, disputes involving symbols such as "In God We Trust" or public displays of the Ten Commandments, crosses, menorahs, and nativity scenes are not among such cases.
EDITOR"S NOTE: All views expressed in this piece are the author’s own and cannot be attributed to any institution with which the author is or was affiliated.
Asim Jusic is an attorney at law and an assistant professor of law at Kuwait International Law School. He holds a B.A. in law from the University of Sarajevo, Bosnia and Herzegovina, an LL.M. from Central European University, Budapest, an M.A. in American studies from the University of Heidelberg, and a Ph.D. from Central European University, Budapest.
