On Wednesday, April 28, 2010, the U.S. Supreme Court handed down its decision in Salazar v. Buono, its latest effort to specify what the establishment clause of the First Amendment to the U.S. Constitution requires of the government with respect to religious objects on public lands.
The object of its concern on this occasion is an eight foot white cross standing on a rock outcropping on a federal preserve in the Mojave Desert, first placed there in 1934 by the Death Valley post of the VFW, and denominated a national WWI memorial by Congress in 2002. The legal issue before the Court was whether the Ninth Circuit Court of Appeals had properly affirmed a District Court ruling that the 2004 congressional act transferring the acre of land containing the cross to the VFW was illegal. The District Court had determined that the act was an effort to circumvent its original injunction forbidding display of the cross at that place on the grounds that it would be viewed by a reasonable observer as an unconstitutional government endorsement of religion.
The six opinions presented in Salazar v. Buono display various views on how the law of injunctions should be applied to the facts. All agree, however, that the District Court’s original decision—finding display of the cross on federal land to be an unconstitutional establishment of religion—is res judicata (that is, “the thing is decided,” and is no longer reviewable). Along the way, however—partly perhaps because, as some of them said, the law of injunctions is not very interesting to them—many of the justices, both at oral argument and in their written opinions, couldn’t resist offering opinions on the public meaning of the cross.
As in most establishment clause cases, the Court was very divided. There is no majority opinion, and a plurality agrees only on the judgment—that is, that the District Court failed to apply the proper standard in considering the legality of the Congressional act under the injunction, and that therefore the case should be sent back to the District Court for re-consideration in light of its opinions. Opinions by the justices concurring in the judgment were filed by Chief Justice Roberts and by Justices Kennedy, Alito, and Scalia. Dissenting opinions were filed by Justices Stevens and Breyer.
Reading the significance of this decision as a predictor of the Court’s future first amendment jurisprudence is probably a waste of time. But these opinions are nonetheless valuable as a display of the varieties of early twenty-first century anxiety over the representation of collective identities.
All of the judges and justices that have heard the case assert that symbols can be understood only in context. In other words, symbols don’t “mean” without context. It is a bit unclear from prior cases how a court is to locate the appropriate context in space and time, but the rule suggests a presumptive indeterminacy. Yet, once they got to talking about it, the cross was not really ambiguous for them. The cross could be read without any specification of context. Indeed, the opinions speak of “the cross” as if it has a power and agency that is obvious. The cross, they all said, is the symbol of Christianity. One doesn’t really need context for that. The issue is whether it is constitutional for the cross to stand on public land as a collective memorial.
At oral argument, in discussion with Peter Eliasberg (representing Mr. Buono, the plaintiff complaining of the display), Justice Scalia responded to Eliasberg’s suggestion that the cross only honors Christians:
JUSTICE SCALIA: The cross doesn’t honor non-Christians who fought in the war? Is that—is that—
MR. ELIASBERG: I believe that’s actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn’t say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that’s why the Jewish war veterans –
JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of—of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.
In the chilly courtroom laughter and Scalia’s angry response can be heard the difficulty—one that echoes across centuries. Because crosses are not used in Jewish cemeteries, they cannot honor non-Christians, whatever the intention of those who erected the cross—or of those who see it. That is understood to be self-evident. To honor all American war dead, it is implied, other symbols must be used.
And yet, many Americans would agree with Justice Scalia. Justices Kennedy and Alito spoke of the cross as a symbol of national sacrifice; the American soldier amalgamated to the man who died on the cross—a worrying expression of religious nationalism that is common, complex, and difficult to speak of.
About the cross, Justice Kennedy said:
Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message . . . Time also has played its role. The cross had stood on Sunrise rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness . . . Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage . . . a symbol that . . . has complex meaning beyond the expression of religious views . . . one Latin cross in the desert evokes far more than religion.
. . . the United States [is] a Nation of unparalleled pluralism and religious tolerance . . . The cross is of course the preeminent symbol of Christianity, and Easter services have long been held on Sunrise Rock . . . the original reason for the placement of the cross was to commemorate American war dead and, particularly for those with searing memories of The Great War, the symbol that was selected, a plain unadorned white cross, no doubt evoked the unforgettable image of the white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict . . . the demolition of this venerable if unsophisticated monument would also have been interpreted by some as an arresting symbol of a Government that is not neutral but hostile on matters of religion.
Are they simply blind? Or worse?
For Justice Stevens, in dissent, the cross was singular and sectarian in its voice, speaking only of something smaller than the nation, something that represents difference, not unity:
A Latin cross necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ . . . Even though Congress recognized this cross for its military associations, the solitary cross conveys an inescapably sectarian message . . . Making a plain, unadorned Latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian . . . The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith. The cross has sometimes been used, it is true, to represent the sacrifice of an individual, as when it marks the grave of a fallen soldier or recognizes a state trooper who perished in the line of duty. Even then, the cross carries a religious meaning. But the use of the cross in such circumstances is linked to, and shows respect for, the individual honoree’s faith and beliefs.
The cross, according to Stevens, is singular and sectarian. It cannot be secular or universal.
Justices Kennedy, Alito, and Scalia argued that the cross, in the context of a war memorial, was not best described as sectarian. In the words of Justice Kennedy, “one Latin cross in the desert evokes far more than religion.” What does he mean? What is “more than religion”? Is the “more” America? Or is the “more” humanity? Is the “more” necessarily secular? Is it indeed more, or is it less?
Much commentary on cases like this suggests that we can and should tidy up the landscape of our symbolic universe. But with what symbols will we be left? And will they suffice to memorialize our loss?
Crosses of various kinds have served to symbolize aspects of human culture and society over a time and space that both precedes and exceeds Christianity. The simplicity and evocative power of the meeting of two lines and its capacity to structure our imagination in various ways find examples from all over the world and throughout human history. Crosses, like other simple shapes—circles, helixes, crescents, stars, spirals—derive their power, in part, from their capacity both to signify universal experiences and, at the same time, to carry highly specific references that root them in very particular religious and political histories. A cross can be at once a symbol of all meeting places, of the axis mundi, and also of highly particular religious meanings such as those attributed to the execution of one man in Roman Palestine in the first century of the common era. On the other hand, the deliberate erasure of the cross has been a potent symbol of secularism and of the rejection of Christianity.
Why do crosses continue to present themselves publicly and to present such a difficulty for the modern, secular nation-state? Cross cases exist across the world. Haven’t the myths and symbols of religions been supplanted by the myths and symbols of nationalism? Has secularization failed? Or, has the cross been secularized? One could argue, I think, that the crosses and other religious symbols that continue to populate our imagination and our environment connect the universal and the particular in ways that the nation fails to do—revealing, among other things, the limits of civil religion, as well as the limits of secularism. And yet it is far from clear whether any universal meaning remains available today in the U.S.—or elsewhere—for any symbol.
Another decision, from the Southern District of California, Trunk v. City of San Diego, concerns the twenty-nine foot Mt. Soledad cross in San Diego. The first cross was erected on Mt. Soledad, then city-owned land, in 1919, also as a war memorial. That cross has been replaced several times and the area around the cross further developed as a memorial since then. In 2004, after litigation seeking removal of the cross was brought against the city, the federal government acquired the property on which the cross stands by eminent domain in order to establish it as a national veterans’ memorial. Again, legal action was instituted—this time, challenging Congress’s acquisition of the memorial. In 2008, Judge Larry Burns, after lengthy consideration of the possible meanings and contexts of the cross, held that its display on Mt. Soledad did not communicate an unconstitutional message and granted summary judgment for the defendants. Burns wrote:
The court finds the memorial at Mt. Soledad, including its Latin cross, communicates the primarily non-religious messages of military service, death, and sacrifice . . . As such, despite its location on public land, the memorial is constitutional.
“The primary effect of the Mt. Soledad memorial is patriotic and nationalistic,” Judge Burns concluded, adding, “[t]his is but another way of saying the message the objective observer takes away from the memorial is a secular one.” So . . . the Mt. Soledad cross is apparently secular not religious, and therefore permissible.
Judge Burns also compared the Mt. Soledad cross and the Mojave cross:
Plaintiffs rely on Buono to support their initial argument that displays with crosses ought to be analyzed differently from displays with other religious symbols or texts. They suggest the Court need not engage in a detailed analysis of the evidence, but should simply conclude the Latin cross necessarily conveys an exclusively religious message . . . But unlike Buono, where no one apparently disputed that the cross is exclusively a Christian symbol, here it is disputed . . . precedents dealing with public displays of crosses in the Establishment Clause context suggest Latin crosses should not be assumed to be primarily or exclusively religious symbols . . . The Latin cross is, to be sure, the preeminent symbol of Christianity, but it does not follow [that] the cross has no other meaning or significance. Depending on the context in which it is displayed, the cross may evoke no particular religious impression at all.
Symbols are to be evaluated in context, and key in the Mt. Soledad case was the presence of other objects in addition to the cross. Burns described its appearance and surroundings:
The cross was conspicuously marked with a bronze plaque noting its status as a veterans’ memorial, and other features were added to the site. These include six large concentric walls displaying over two thousand engraved, formal black granite memorial plaques recognizing individual veterans, with room for over a thousand more. The plaques contain personal information, pictures, and symbolic elements (both religious and secular) and are installed at a substantial cost to the purchasers. The religious imagery on the plaques includes crosses, the Star of David, and emblems of other religions. Adjacent sidewalks invite visitors to view the plaques up close. Other additions to the memorial include brick paving stones commemorating veterans and supporters, and twenty-three bollards honoring community and veterans’ organizations, encircling the walls. Finally, an American flag now flies from a large flagpole at the memorial.
One might say that the Mt. Soledad cross had been converted from a religious symbol to a symbol of civil religion by being mixed with other objects, including the flag, just as the nativity scene and the Christmas tree have been understood in earlier establishment clause cases to be converted into secular/civil ones by being placed in the presence of other symbols.
The actual crosses themselves are virtually indistinguishable. Tall and white and prominently displayed on high natural places, both of these crosses are also pedantically referred to by the parties and by the courts as “Latin” crosses. Dictionaries will tell you that a “Latin” cross is distinguished from a “Greek” cross by its longer vertical arm. The difference means little in the U.S. context. Indeed, the distinction is truly a matter of ancient history. What is more noticeable when American crosses are contrasted to crosses displayed in Catholic Europe, though, is that American crosses, at least public ones, have no bodies. They are Protestant crosses. Does that make them more capable of universal meaning? Judge Burns thought so: “While a crucifix is an unmistakable symbol of Christianity, an unadorned Latin cross need not be.” One hears whiffs of an earlier U.S. anti-Catholicism—but also one hears an expression of the nondenominational Protestant Christianity that was understood to serve a universal purpose in nineteenth- and early twentieth-century public contexts in the U.S., including in public schools.
U.S. courts are divided about the presence of crosses on public lands. For some, the cross is a universal—and therefore secular—symbol, one that stands in for all religions, for a sacrifice that is inclusive rather than exclusive. This universality derives both from age-old theological claims made by Christian speakers and from the apparently enabling function of the presence of even one religious symbol, an enabling function that gestures beyond nationalism. For some Americans, the accommodation of Christianity arguably makes a place for religion that can then be extended to other religions. This place is culturally structured by Christian assumptions and regulated by secular law, but one can make the argument that it is a kind of religious freedom.
Do soldiers fight and die for their country out of civic piety, as the ACLU suggests in its various amicus briefs in the cross cases? Should war memorials have only flags on them? In his article about the ambiguities of the role of military contractors in the Iraq War, Professor Mateo Taussig-Rubbo notes the expressed motives of the men who fight and die as employees of Blackwater, Inc. (now known as Xe Services LLC). While they are private citizens—mercenaries, in effect—formally denied the status of U.S. soldiers within the national economy of sacrifice, who do not receive medals or military burials, their own motives are less tidy. Like those who died in what is known as the Great War, they understand themselves as fighting for both the United States and for universal values—for freedom and the rights of all men. At their headquarters in North Carolina, Blackwater has created its own civil religion, which celebrates the sacrifice of its men with medals and a memorial “dedicated to the courage and honor of our fallen teammates. Their dedication and sacrifice will never be forgotten.” Faisal Devji, writing of the motives of Al Qaeda fighters, argues that they too see themselves as, in some sense, fighting for all of humanity. What these examples suggest is that the modern nation-state has limited control over its own symbolization and sovereignty, particularly when it comes to the human sacrifice it attempts to legitimate and the deep ethical ambiguities inherent in any symbolization of those deaths, through the use of either religious or secular symbols.
Over the last thirty years or so, for a complex set of reasons—including, I think, fear of scientific naturalism, the hardening of political divisions, and the stakes involved in owning pieces of the cultural landscape—universalism has fallen on hard times. Judges cannot cope any better with this than the rest of us.
[Parts of this post are derived from the author's essay, "Why Are We Talking About Civil Religion Now?: Comments on 'Civil Religion in Italy: a 'Mission Impossible'' by Alessandro Ferrari," forthcoming in The George Washington International Law Review.---ed.]