Mixed Signals: The Supreme Court and Two Current Church-State Cases

The U.S. Supreme Court is now considering American Legion v. American Humanist Association, in which the continuing presence of the “Peace Cross” has been challenged as a violation of the First Amendment.

With oral arguments concluded and all briefs submitted, the U.S. Supreme Court is now considering American Legion v. American Humanist Association, in which the continuing presence of the “Peace Cross” on public land in Bladensburg, Md., erected more than 90 years ago as a memorial to 49 local soldiers who died in World War I, has been challenged as a violation of the First Amendment prohibition of governmental establishment of religion.

Those arguing that the Peace Cross should be taken down as an Establishment Clause violation point to the irrefutable role of the cross as the preeminent symbol of Christian belief — namely that God gave his only son so that the faithful could be granted forgiveness and eternal life. The Peace Cross’ continued placement on public ground, these advocates maintain, cannot be understood as anything less than an endorsement of Christianity — and, indeed, as an elevation of Christianity over other religious beliefs.

In contrast, those urging that the cross be left in place argue that the courts should look to the purpose of the Peace Cross as a memorial to war dead. These latter advocates contend, as well, that long-standing standards for determining when there have been breaches in the separation of church and state have proven unworkable and should be set aside in favor of an ostensibly clearer “coercion” standard. If this latter approach were adopted, there would be nothing to stand in the way of future crosses being erected as “neutral” memorials of war dead — even though, as Justice Brett Kavanaugh pointedly observed at oral argument, the Jewish War Veterans feel their service is dishonored when the cross is utilized as a general memorial of war dead.

Commentators suggest that, at least judging by the oral argument, the court appeared inclined to leave the memorial in place, even as it appeared disinclined to make sweeping changes to existing standards respecting church-state law. If so, this suggests that the high court is likely, as it did in the Masterpiece Cakeshop case, to take an incremental, fact-based approach that resolves the case at hand while leaving larger questions for another day. Along these lines, Justice Stephen Breyer floated a trial balloon that existing memorials could be left in place on a “the past is the past” basis, even as any new memorials in which a religious symbol is the primary focus would be regarded as impermissible violations of the no-establishment principle.

Even as we wait to see how the court rules in this case, the commotion has not yet died down over a matter that came before the high court just a few weeks earlier — a case that had with similar resonance in terms of the respect to be accorded members of minority faiths under our Constitution, but that came before the high court with neither the advance notice nor the full briefing and reasoned consideration that marked the Bladensburg proceeding.

On the evening of Feb. 7, 2019, the Supreme Court issued a 5-4 ruling in Dunn v. Ray, in which it lifted a stay of execution issued by the U.S. Court of Appeals for the Eleventh Circuit. The Court of Appeals had issued that stay in order to allow for consideration of Domineque Ray’s claim that Alabama’s denial of his request to have an imam by his side at the time of execution violated the Establishment Clause — even though, as emphasized in a dissenting opinion by Justice Elena Kagan, the Alabama prison in question “regularly allows a Christian chaplain to be present in the execution chamber.” Justice Kagan asserted that the state policy amounted to an unconstitutional preference of one religion over another, inasmuch as “[u]nder that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber,” but not so “an inmate who practices a different religion — whether Islam, Judaism, or any other…” The majority did not respond to this claim of denominational preference, justifying its reversal of the stay only with the bland statement that Ray had “waited until Jan. 28, 2019 to seek relief” and citing authority for the proposition that “[a] court may consider the last-minute nature of an application to stay execution…” — notwithstanding that, per Justice Kagan’s dissent, Ray had no reason to know until a scant few days before Jan. 28 that the prison would deny his request. Ray was executed some two hours after the Supreme Court ruling was issued.

Response condemning the Supreme Court’s action was swift and came from both ends of the political spectrum. Within hours of the high court’s decision, former Obama acting Solicitor General Neal Katyal tweeted, “100 years from now, law students will read about this decision. It may be read alongside Dred Scott, Plessy v. Ferguson, Korematsu and the Chinese Exclusion Act cases.” The next day, the conservative National Review posted an article by David French stating, “The man was convicted of raping and murdering a 15-year-old girl, an act so heinous that the death penalty is appropriate and just. But Ray, no matter his crimes, still enjoyed the protections of the United States Constitution. Yet last night the state of Alabama and the Supreme Court failed to respect those protections at the most crucial of moments.” The article ran under the headline “The Supreme Court Upholds a Grave Violation of the First Amendment.” And the Baptist Joint Committee for Religious Liberty also decried the court’s action, calling it “a decision that will live in infamy.”

The Supreme Court’s rush to execution, in the face of a powerful claim that religious rights had been violated (not to mention, as Justice Kagan noted, that it was contrary to the substantial discretion usually accorded by the Supreme Court as to the issuance of stays from a trial-level court’s actions), took place with little briefing and no oral argument, even though it casts a pall over the notion that members of all faiths should stand, in Thomas Jefferson’s memorable phrase, “on an equal footing.”

It will simply not do for the prison to point in conclusory fashion to its manifest security needs as a basis to allow only the prison chaplain to be present in the execution chamber. It is no coincidence that the chaplain is a minister of the majority Christian faith, thereby necessarily weighting the system towards affording only Christian prisoners the “profound benefit” (in the words of the Court of Appeals) of the presence at the ultimate moment of a minister of their faith, while denying that benefit to those of  minority faiths. (And, by the way, while the appellate court’s opinion describes the chaplain only as a “Christian,” Christianity is, as we are all aware, not monolithic. There may well be doctrinal issues, from a Catholic prisoner’s perspective in being ministered to by a Protestant minister, or vice versa, thereby affording this benefit only to prisoners of the chaplain’s particular sect.)

It is noteworthy (and a reflection of how hard these cases can be) that the same Neal Katyal who decried the Supreme Court’s action in Dunn v. Ray represented the Maryland Parks Commission in the Peace Cross case. Katyal urged at oral argument, on behalf of the commission, that the memorial is constitutional because the cross served a dual purpose — it is not solely a religious symbol, he argued, because it falls within a tradition of the cross as a symbol of World War I war dead. If all this argument leads to is that, per Justice Breyer’s suggestion, the Peace Cross is left in place, along with other memorials of similar vintage, that will not be the worst thing — and may well be better than the continued dissension and division that would arise were a successful challenge to the Peace Cross to lead to a series of successor cases in which other such World War I memorials were ferreted out for removal across the land.

Even if that is the result, we must, however, bear in mind that there were assuredly non-Christian war dead during World War I. The families of those valiant heroes were probably not terribly enthused over the notion of their loved ones’ sacrifice being marked by what was assuredly not a symbol of their own faith — not to mention that many pious, believing Christians are today profoundly disturbed by the homogenization of the meaning of the cross as a justification for allowing the Peace Cross and similar memorials to remain on public ground.

At bottom, the very minimization of the religious content of the Peace Cross on which its advocates rest, and the disregard this propounds for the impact of such symbols on members of minority faiths, is not unrelated to the disrespect for minority faiths, intended or not, represented by the Supreme Court’s insouciant action in overturning the stay of execution in Dunn v. Ray. Detestable a criminal as he was, Ray deserved better — because the principles of religious liberty deserve better. Happily, the court is, at the very least, giving those principles the attention they deserve in the Peace Cross case.

Richard Foltin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. His email address is: rfoltin@freedomforum.org.

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