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The Supreme Court’s Tale of Two Cities

In 2014 a group of atheists became offended by the sight of a cross on Maryland public land and demanded that a federal court order its destruction. Two weeks ago, in American Humanist Association v. American Legion, the Supreme Court rejected that demand, and in doing so reminded Americans of the cornerstone of the founding generation’s agreement for living together, codified in 1791 as the First Amendment to the Constitution.

The 40-foot Peace Cross alongside a road in Bladensburg, Maryland, was erected in 1925 as a memorial to local soldiers who died in World War I. Members of the American Humanist Association argued that the cross’s presence on government-owned land violated the Establishment Clause of the First Amendment. The complainants invoked the Court’s 1971 holding in Lemon v. Kurtzman, which courts have understood to empower an “offended observer” to sue when he believes the government has endorsed a religion.

In its June 20 decision, the Court explained that, despite its inherent religious symbolism, the presence of the Peace Cross on public land did not imply government endorsement of Christianity in light of its historical context as a memorial for veterans of all religions. And it clarified the aim of the First Amendment’s Establishment and Free Exercise clauses: “to foster a society in which people of all beliefs can live together harmoniously.”  “[T]he presence of the Bladensburg Cross on the land where it has stood for so many years,” the Court concluded, “is fully consistent with that aim.”

The Religious Freedom Institute‘s Islam and Religious Freedom Action Team, of which I am the director, argued as much in a friend-of-the-court brief we filed in this case. We explained that in a religiously diverse society like the United States, government has three basic approaches to religion: it can promote one religion and suppress others; it can banish all religions from the public square; or it can treat all religions with “benevolent neutrality,” which allows it to “accommodate, respect, and reflect the religious beliefs of its citizens without using coercive power to mandate any citizen’s adoption of any religious beliefs.”

It was this last approach that the Founders agreed upon, we argued, and the Bladensburg Peace Cross was in accord with that arrangement.

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The atheists’ demand that the memorial be demolished to assuage their offended sensibilities represents a lack of tolerance and respect for those who hold different beliefs and a conviction that peaceful pluralism is not possible until all traces of those beliefs are banished from the public square. The Supreme Court rejected that view:

A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past, and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive.

The Court identified one such “militantly secular regime” as Revolutionary France, whose war on the Catholic Church is the origin of modern France’s doctrine of laicité. The regime may have moderated, but it has not escaped its origins.

The Bladensburg Peace Cross would have been torn down under Article 28 of France’s 1905 Law on the Separation of Church and State, which provides that “no religious sign or emblem” shall be erected “on public monuments or in any public place whatsoever.” A 1989 opinion by France’s highest administrative tribunal supported a ban on Muslim headscarves in schools because they “harm the dignity or the freedom of.. .other members of the educative community.” A 2004 law bans students of all religions from wearing any symbols which “overtly manifest a religious affiliation.”

French laicité pretends to be neutral towards religion but it is not. As Eric Voegelin writes, “the Revolution was anti-Christian and tended toward the establishment of a caesaro-papistic regime of a non-Christian religion. This tendency, moreover, did not arise within the Revolution itself but was present already in the works of the philosophes before 1789.” The rejection of religious symbols in public is not a neutral position towards religion but an assertion that religious claims are false and worthy of suppression.

Nor is the American order neutral on the question of religion. It begins “In the Name of God” with the Mayflower Compact of 1610, and declares in 1776 that the rights of the people originate with their Creator. “We are a religious people,” the Supreme Court said in 1950, “whose institutions presuppose a Supreme Being.” The American order deems the people entitled to the free exercise of religion, not because it is neutral on whether religion is good or true, but because religion “can be directed only by reason and conviction, not by force or violence.”

In American Humanist, The Court “restate[d] this bedrock constitutional principle: All citizens are equally American, no matter what religion they are, or if they have no religion at all.” But it declined to overturn the very constitutional order that grants the atheist complainants in this case freedom from religious coercion – and for that we, and they, should be grateful.

 

*Image: Golden Rule by Norman Rockwell, 1961 [Norman Rockwell Museum, Stockbridge, MA]. A mosaic of the iconic painting, originally a cover for The Saturday Evening Post hangs at United Nations headquarters in New York City.

Ismail Royer

Ismail Royer

Ismail Royer serves as Director of the Islam and Religious Freedom Action Team for the Religious Freedom Institute. Since converting to Islam in 1992, he has studied religious sciences with traditional Islamic scholars and has spent over a decade working at non-profit Islamic organizations.



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