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Chunks out of the wall separating church and state

This article first appeared in the St. Louis Beacon, April 30, 2010 - The small Latin cross on Sunrise Rock in the Mojave Desert provided the U.S. Supreme Court with a chance to say what it doesn’t like about its previous decisions on the separation of church and state.

The fractured court didn’t even decide this week whether the cross, erected on once public land, violated the First Amendment’s prohibition of “an establishment” of religion. A lower court had decided it was a violation. Then Congress stepped in and transferred the land to private hands to dodge legal problems. The lower court saw this as an illicit attempt to sidestep the Constitution, but the Supreme Court ruled that the lower court needed to reconsider that decision giving greater deference to Congress.

Chad Flanders, a law professor at Saint Louis University, characterized the decision as “a missed opportunity to clarify the standard for Establishment clause cases.” He said that might have been because of the “murky” procedural history of the case or possibly because the justices “didn’t want to show their hands yet” on where they might be going on religion cases.

One thing was pretty clear, though, piecing together the six varied opinions written by the justices: The replacement of Justice Sandra Day O’Connor by Justice Samuel Alito has opened the door to more accommodation between church and state. That means that the court isn’t going to tear down long-standing religious symbols that have taken on a secular meaning over time. The 8-foot tall Latin Cross on Sunrise Rock, commemorating the dead of World War I, is unlikely to come down.

If one thinks about the separation of church and state as a wall - a much-disputed metaphor that suggests greater separation than intended by some of the Founding Fathers - then there are likely to be a few more chunks removed from the wall.

During her tenure on the court, O’Connor advocated an “endorsement” test that would bar government actions that endorsed religion in a way that would make a reasonable person of a different faith feel like an outsider.

The endorsement test was not as tough a test as the three-pronged test that the court had developed earlier, during the Warren Court - the Lemon vs. Kurtzman test. The Lemon test looked to the purpose and effect of a government action and whether it entangled the government with religion.

By the time O’Connor reached the court during the more conservative Burger era, several justices were dissatisfied with the Lemon test, which they viewed as overly strict and mechanistic. But they didn’t embrace O’Connor’s endorsement approach either. While O’Connor was on the court, it didn’t matter that the other justices didn’t go along. She often was the fifth vote in religion cases so her view carried the day.

For example, O’Connor’s vote was decisive in a 1986 decision finding that a crèche on the grand staircase of the Allegheny County courthouse in Pittsburgh violated the Establishment clause, while a menorah that was part of a larger holiday display outside the courthouse did not.

Justice Anthony Kennedy was one of those who disagreed with O’Connor in that case and he took the Sunrise Rock decision as an opportunity to put his views into an opinion for the court. Alito and Chief Justice John G. Roberts signed on to his opinion. Justices Antonin Scalia and Clarence Thomas wouldn’t have allowed the legal challenge in the first place, believing that the former park ranger who sued did not have standing in court. But both justices have made clear in past cases that they favor substantially more accommodation between church and state than the rest of the court. So that makes five votes on the court to at least accommodate more religious symbols.

This does not mean that the court is ready to pull down the rest of the wall of separation. Kennedy disagrees with at least Scalia and Thomas when it comes to school prayer cases. Kennedy was the decisive vote 20 years ago in a ruling that barred prayers at public school graduation ceremonies. He cited the psychological coercion created by such religious ceremonies.

But coercion is not involved in the same way in the cases involving religious symbols. Kennedy said that the cross, erected in 1934 by the Veterans of Foreign Wars, had a secular meaning. “A Latin cross is not merely a reaffirmation of Christian beliefs,” he wrote.

“It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”

The amount of time that the cross has stood in the desert also was important to Kennedy and the meaning of the cross. “Time also has played its role. The cross had stood on Sunrise Rock for nearly seven decades,” he wrote. “By then, the cross and the cause it commemorated had become entwined in the public consciousness.”

Justice John Paul Stevens, who is retiring from the court, disagreed. “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,” he wrote. "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.”

Flanders of Saint Louis University thought the exchange was the most interesting part of the opinion. “The disagreement between Kennedy and Stevens on this point seems pretty strong and pretty deep,” he wrote. “Kennedy says it's a more or less generic symbol respecting the sacrifices of those who have fallen in battle. Stevens, by contrast, says it's an obvious symbol of a particular faith (i.e., Christianity). This is a small, but significant, contribution to the debate over which symbols are unobjectionable enough to be counted as part of our nation's ‘ceremonial deism’ and which aren't.”

Ceremonial deism is the term the court uses to refer to references to God that have become embedded in the nation’s customs, such as “In God We Trust” on money, legislative chaplains and the ceremonial statement that begins each session of the court itself, “God Save this Honorable Court.”

Kennedy said that all of the exceptions allowed by the endorsement test demonstrated that it was not a satisfactory one for the court to use in all religion cases.

The court isn’t going to permit a government to erect a large cross atop the courthouse or to post the 10 Commandments in a public school classroom. But it is now clear that it won’t order deconstructions of long-standing monuments with Christian references.