Separation of Church and State

            The topic of discussion for this Constitution Monday concerns that sometimes overrated idea of Separation of Church and State that is not even in the United States Constitution. Atheists and other non-Christians have been fighting Christian symbols and beliefs for many years. The first one to fall was prayer in school. The Supreme Court issued its decision on prayer in school in Engel v. Vitale on June 25, 1962. Prayer was taken out of school, and the crusade against Christianity has continued ever since.

            The latest religion-based ruling came recently about a cross that was erected in Bladensburg, Maryland, nearly 90 years ago to honor approximately 50 men from the community who died during World War I. Many of the men were buried in France, and their loved ones desired a place where they could go in their grief to remember and to mourn the loss of their loved ones. There were multiple fund-raising events before a 40-foot “Peace Cross” was finally erected in the community. “At its base sits plaque inscribed with the names of each of the men who did not make it home. The seal of the American Legion is also found on the cross along with four words: ‘Valor,’ ‘Endurance,’ ‘Courage,’ and ‘Devotion.’” (All details and quotes are from this same source.)

            The cross stood for 90 years without anyone objecting to it. In fact, it was often the staging ground for other events, such as Veterans Day and Memorial Day celebrations. Then the American Humanist Association decided in 2014 that “the cross violated the Establishment Clause due to its location on public property and the expenditure of city funds for its upkeep.”

            It did not seem to matter to the opponents of the cross that it was erected on private land, land that was taken by Maryland by eminent domain. The State wanted the land to expand a nearby highway, and the land grab included the parcel where the cross is located. Even though Maryland owned the land, there were no objections against the cross for another 50 years.

            The case finally reach the Supreme Court, and it issued a recent 7-2 decision that the 40-foot-tall cross in Bladensburg, Maryland, could stay. The decision on this case is sure to impact decisions about other religiously-based monuments in America.

            The fact that the Court ruled 7-2 should make a big statement. Only Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor dissented on the case. Justice Samuel Alito wrote the opinion for the majority of the court.

For nearly a century, the Bladensburg Cross has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought.

It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of “a hostility toward religion that has no place in our Establishment Clause traditions.”

            There is no doubt that the cross originated as a Christian symbol and keeps that meaning. However, it has added secular meaning in World War I memorials. It also has historical importance because it is a reminder of loved ones and their sacrifices in a long-ago war. It has become a part of the community and represents veterans from all the foreign wars following World War I.

            The U.S. Constitution, and the Religion Clauses of the Bill of Rights in particular, was written to bring people of all beliefs or no beliefs together, and the Cross in Bladensburg has fulfilled that purpose for many years. It is only in recent years that the small minority of people who take offense with the cross and other memorials have had power to do anything about their offense. I agree with the opinion written by Justice Neil Gorsuch who discussed how tired he is of hearing the “I-take-offense” reason for suing.

In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can

be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his eyes” … or pursue a political solution.

            Justice Gorsuch suggests that offended people take their gripe to Congress instead of filing a legal case with the courts. Justice Brett Kavanaugh seems to believe in the same course of action because he added in his opinion, “This court is not the only guardian of individual rights in America.”

            Even though millions of Americans call the court decision a win, there are some people who say that the Supreme Court did not go far enough. Emilie Kao at The Heritage Foundation gave credit to the Court for its decision but added some criticism.

While the court decided this case correctly, it did not clarify its own confusing and contradictory standards for deciding other Establishment Clause cases. Even though four justices criticized the long-discredited 1971 decision in Lemon v. Kurtzman and its “shortcomings,” they did not vote to overturn this distortion of the Constitution.

The Constitution as written, not the personal views of judges, should guide how the American people express their religious faith in the public square.

            Most Americans agree that memorials should be protected and that our religious heritage, history, and symbols are an integral part of the founding of our nation. However, other faith-based monuments are in danger until the Supreme Court scraps the “Lemon test.” Justice Clarence Thomas writes the following about Lemon.

Nearly half a century after Lemon, and, the truth is, no one has any idea about the answers to these questions. As the plurality documents, our “doctrine [is] in such chaos” that lower courts have been “free to reach almost any result in almost any case.” Scores of judges have pleaded with us to retire Lemon, scholars of all stripes have criticized the doctrine, and a majority of this Court has long done the same. Today, not a single Member of the Court even tries to defend Lemon against these criticisms – and they don’t because they can’t… It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so.

            While Christians and millions of other Americans are rejoicing at the decision for this case, we should not – and cannot – rest on our laurels. The American Humanist Association declared after the decision that “Our legislative efforts will be redoubled.” Conservatives and all people who are willing to fight to protect and preserve our Constitution need to stay awake and alert. The Constitution has served our nation well for more than 235 years and will continue to do so if we will but protect and preserve it.