A Blow For Religious Freedom?

Today the U.S. Supreme Court decided American Legion et al. v. American Humanist Assn. et al., a case arising out of an effort by an atheist group to force the destruction of a monument to local residents killed in World War I. The monument, erected in 1918 in Prince George’s County, Maryland, on land that is now public, included the shape of a Latin cross. Therefore, the Humanist Association argued, it constituted an unconstitutional establishment of religion and must come down.

This claim was rejected by the Supreme Court, 7-2, with Justices Ginsburg and Sotomayor dissenting. The decision is being hailed as a victory for religious freedom, which it is, compared with the alternative. But if you read the opinions at the link, you may find them a bit depressing, as I do.

The majority opinion is by Justice Alito. No one questions Alito’s conservatism, but in this context he is compelled to argue that the monument at issue is old and not particularly religious. This is from the syllabus of the case, summarizing his opinion:

At least four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. First, these cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult. … Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply, as in the Ten Commandments monuments addressed in Van Orden and McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844. Even if the monument’s original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. Third, the message of a monument, symbol, or practice may evolve, Pleasant Grove City v. Summum, 555 U. S. 460, 477, as is the case with a city name like Bethlehem, Pennsylvania; Arizona’s motto “Ditat Deus” (“God enriches”), adopted in 1864; or Maryland’s flag, which has included two crosses since 1904. Familiarity itself can become a reason for preservation. Fourth, when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality.

In other words: we won’t let these atheist killjoys tear down ancient monuments with crosses, but don’t try erecting any new ones. This approach is explicit in Justice Breyer’s concurring opinion:

The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I.
A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.

As is so often the case, Justice Thomas offers a bracing alternative approach. He questions whether the Establishment Clause is properly “incorporated” by the Fourteenth Amendment, so as to bar “establishment” by a state, as opposed to the federal government. This is Thomas’s own brief summary of his argument:

The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” U. S. Const., Amdt. 1. The text and history of this Clause suggest that it should not be incorporated against the States. Even if the Clause expresses an individual right enforceable against the States, it is limited by its text to “law[s]” enacted by a legislature, so it is unclear whether the Bladensburg Cross would implicate any incorporated right. And even if it did, this religious display does not involve the type of actual legal coercion that was a hallmark of historical establishments of religion. Therefore, the Cross is clearly constitutional.

Distilling the case to its essence, the Court is saying that monuments that include religious symbols like a cross are acceptable, as long as they have existed for a long time and have a significance that is largely secular. Monuments that were created in the dim past that preceded the supposedly enlightened 21st century will not be torn down, if they have attained a secular gloss. But a new monument, or other public display, that includes a reference that is at its core religious, like a cross or a star of David? Forget it.

Which seems to me consistent with a view that religion is an archaic feature of our society that can be tolerated if viewed in its historic context, but not as a vital part of contemporary society–not if the government has anything to do with it. But then, these days the government has to do with pretty much everything. So the space allowed to acknowledgement of religious sentiment continues to shrink, and religion slowly fades away.