The Peace Cross Stands, but What Comes Next?

By Rita Dunaway Published on June 25, 2019

The Supreme Court made the right decision last week when it upheld the “Peace Cross” war memorial in Bladensburg, Maryland. Sadly, though, its opinion does very little to clear up confusion over what the First Amendment’s “Establishment Clause” really means.

The consensus around the decision is impressive and refreshing. Seven Justices agreed that the 32-foot, cross-shaped war memorial (constructed with private funds) should stay put at the terminus of the National Defense Highway. But those with a broader perspective will find it hard to get excited about a decision that exposes the utter lack of coherence in the Court’s Establishment Clause cases — without providing a new standard.

A Sour Lemon On Its Way Out

Some of us had dared to hope the Court would use this case to officially scrap the nonsensical “Lemon Test” that has purported to guide its Establishment Clause analysis since 1971. This “test” has three parts:

  1. Does the government-sponsored religious act or display have a secular purpose? (Easy to dream one up.)
  2. Does it have a primary effect that neither advances nor inhibits religion? (Who’s to say which “effect” is “primary?) (Does a mere acknowledgement of religion in public advance religion?)
  3. Does it involve an “entanglement” of government with religion? (What constitutes an “entanglement?”)

The “test” is comically easy to manipulate. So its “guidance” comes down to this: If the court wants to strike down the act or display, it can. If it wants to uphold it, it can do that, too. No wonder the test has produced wildly inconsistent results.

Justice Alito, who authored the decision in the Peace Cross case, admitted as much. He didn’t purport to “apply” Lemon in this case, and he didn’t completely disavow it. But a read through the various opinions in the case makes it clear the bad test is on its way out.

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The question is: what will take its place?

An Unclear Path

The Court has not provided a clear answer. And some of the factors it considered in reaching the correct decision might just lead to more harm than good. These include:

  1. What people think when they witness the cross. This analysis turns judges into psychoanalysts tasked with deciding whether a religious reference might cause non-believers to “feel” like outsiders. It asks whether bystanders might “perceive” the government “endorses” religion. But surely in forbidding Congress to establish a national religion, the founders were not concerned about people’s feelings, but about their freedom.
  2. What people would think if the cross were removed. Its removal might “be seen by many not as a neutral act but as the manifestation of a hostility toward religion.” True. But does what people think about something determine whether it is right? If, in fact, the presence of the cross were an “establishment” of a national religion, the right thing would be to remove it, regardless of public sentiment.
  3. Secular meanings of the cross. The Court pointed to the fact that The Red Cross, a medical charity, uses a cross as its emblem. It pointed out that some of us associate crosses with World War I, due to photos and footage showing row upon row of neat white crosses marking the graves of fallen soldiers. But let’s not get cute. We all know that the Peace Cross has some religious significance. That doesn’t mean it “establishes” a national religion.
  4. The Court reminds us that the Peace Cross is old. But surely neither tradition nor the passage of time can make something right if it was truly wrong at the outset.

None of these factors alone, nor all of them together, provide a basis for future decisions that will effect the actual purpose of the Establishment Clause.

Its purpose was to protect religious freedom by ensuring that the government could not coerce citizens to support a particular religious sect. It wasn’t to ensure that non-believers are shielded from expressions of faith, but that they remain free to look away. Until the Supreme Court makes this clear, we can expect more of these silly lawsuits.

Today’s Court seems headed in the right direction, but the nation needs greater clarity. Just look to the plight of baker Jack Phillips. The Court vindicated him in his struggle against the Colorado Civil Rights Commission, but failed to provide clear principles for similar future cases. Now Jack is being sued, once again, by those who would force him to violate his faith.

Let’s pray not only that the Court will make right decisions, but that it will make them boldly.

 

Rita Dunaway is a constitutional attorney, the author of Restoring America’s Soul: Advancing Timeless Conservative Principles in a Wayward Culture, and co-host of the weekly radio program, “Crossroads: Where Faith and Culture Meet.”

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