Veterans, the Desert Cross, and the Separation of Church and State

The Supreme Court heard oral arguments yesterday in Salazar v. Buono, an interesting (albeit somewhat technical) case involving the existence of a five-foot white cross on public land (in the Mojave National Preserve) erected by the Veterans of Foreign Wars to honor those who died in World War I. The VFW was initially hit with an injunction directing that the cross not be displayed as a violation of the Establishment Clause of the First Amendment. The federal government covered the cross, and Congress in the mean time organized a land transfer to the VFW that required that organization to maintain a war memorial on the land. A second injunction was sought, the district court ruled the land transfer invalid, the Ninth Circuit upheld, and the case is now pending before the Supreme Court.

The most interesting exchange in oral arguments was arguably the least important, from a legal standpoint. The issues before the Court (e.g.: standing of the respondent; constitutionality of a land swap with a reversionary interest) turn on technical issues that will have to be translated into English for the rest of us. But the interesting exchange had to do with the meaning of religious symbols. I quote from the transcript, which you can find here.

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --
MR. ELIASBERG (counsel for the respondent): 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 ben in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
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.

Outrageous indeed. Scalia probably meant that the intent of the cross's erectors (the VFW in 1934) was to honor all the war dead. What he left out was that in 1934, the VFW could conflate "American war dead" with "Christian war dead" and receive very little in the way of argument. This conflation may still have offended Jewish, Muslim, Buddhist, and veterans of other faiths, but this was not the intent of the VFW. They were simply using a common cultural symbol. In this sense, Scalia misses the mark entirely--his comments were predicated on the fact that nowhere did the memorial explicitly exclude any other religion. But symbols are useful precisely because they implicitly (through a cultural identification process) include and exclude certain groups of people. To be blind to this is to be obtuse (if not outrageous).

But I reiterate: this exchange was not central to the issues in the case. It is interesting precisely because it gets at the heart of the question of how culture can inform our understanding of legal and constitutional issues. And for the record, I understand Scalia's evident frustration. I attended Pomona College, an educational institution founded by Congregationalists and whose official seal portrays a cross and the words: "Our Tribute to Christian Civilization." As a senior student there, I publicly opposed changing the seal to be more inclusive. I did so not because I value "Christian Civilization" (it is a misnomer), but rather because the symbol has historical import and we cannot simply change out symbols in the name of multiculturalism without risk of losing our sense of historical presence.

The same argument, I think, might apply here. And the oral arguments are worth perusing just to see how the justices signaled one another about the inherent trickiness of Establishment Clause jurisprudence, and just how much context matters in making determinations that honor the spirit of the First Amendment, the concerns of a pluralistic United States, and our own sense of identity and history.

Judges, "Conservatives", and the "Gang of 14"

John McCain, it comes as no surprise, is still having trouble with conservatives. Given his own conservative stances--which always take a hard-right turn close to election time--it is a little surprising that the right wing of his party is so concerned. Ann Coulter, Rush Limbaugh, and other media clowns aside, there are serious reasons for the senator to worry that he will not be able to corral the base of his party for the November elections.

We might reduce the entire question to one of judges. For the self-styled, capital "C" conservatives in the Republican Party, the issue of what judges has become paramount. McCain has earned conservatives' distrust primarily because of his membership in the "Gang of 14," a bipartisan Senate clique that sought compromise in the growing crisis over George W. Bush's judicial appointments. Stonewalling appointments--nothing new, by the way, and a tactic of the Republicans during Clinton's administration--led Republicans to threaten to change the Senate rules. Current rules require a vote of 60 Senators to agree to stop debate before voting to confirm or deny a presidential appointment. Such rules guarantee that the minority party is not shut out of the process of giving "advise and consent" during the nomination process. Dubbed the "nuclear option," the rule change would have forced an up or down vote on any nominee by the president. It would have had the effect of greatly speeding up the judicial nominating process, provided that the same party (and presumably the same factions within that party) controlled the Senate and the Presidency. The Gang of 14 made the political bargain. Agree not to nominate anyone too radical, said the Democrats, and we will make sure you have the votes to get the nominee to the floor. McCain and other Republicans said fine. The deal was struck, the nuclear option was taken off the table, and two of the most conservative men ever to sit on the Supreme Court were successfully nominated and approved.

It was hardly a Faustian bargain, but conservatives have regarded McCain with suspicion ever since. Whether this is justified, even from a radical conservative viewpoint (as opposed to a principled or pragmatic one) is up for debate. Whether it proves detrimental to McCain's bid for the presidency remains to be seen, but it seems fairly clear that the "base" of the republican party feels betrayed, left out in the cold, and most likely won't venture out to the polls this year, at least not in the numbers that they did when Karl Rove cajoled them to come out and vote for W.

Buried beneath this story of coalition building with in the two-party system is an extraordinary assumption: that judges truly are the most important officers in our republic. They have, of course, always been important. But is it so important that McCain has to send up signal flairs (Ted Olsen is his new best friend, e.g.) and drop a whole constituency come election time? Maybe so.

Historically, judges have wielded tremendous power, but not over the kinds of subjects that conservatives are now concerned with. First and foremost in the minds of today's religious conservatives are questions about the separation of church and state (establishment clause) and abortion. But these are not issues resolvable in the courts, regardless of the will of the justices or, for that matter, the original meaning of the Constitution.

The real question, it seems, is precisely what difference judges can make in everyday issues.
Throughout most of our history, judges have been conservative bulwarks against radical political change. This was true even when they were actively ruling in favor of corporate and industrial America's expansion and declaring trade unions illegal in the late-nineteenth century. It will doubtless remain true into the next century.

From this standpoint, McCain's position in the "Gang of 14" should not be a liability. It was an old fashioned conservative compromise, one that preserved the existing rules, took account of
minority views, and resisted the kind of radical shift in politics that might destabilize politics permanently.

Hardly a thing, in other words, that would upset true conservatives.

Establishment and Religious Tests

It's now old news, but Mitt Romney's peculiar speech about his religious orientation and the American constitution deserves analytical attention. (View the speech here on Youtube.) Rhetorically, Romney achieved brilliance several times. For instance, Romney pointed out the Founders' insistence on religious freedom for the sake of religion and inverted it immediately, suggesting that religion cannot survive without freedom means that freedom cannot survive without religion. Whatever one thinks of this proposition, one must admire the ease with which it rolled off Romney's tongue.

Many before me have commented on Mitt Romney's speech and its relationship historically to John F. Kennedy's speech on the same subject, given at the same comparative time in their candidacies. Gary Wills wrote an incisive essay on it for the New York Review of Books. I do not wish to comment again on the rather tired, albeit imporant, issue of religion in modern politics. Nor do I want to comment on Romney's generic religious comments ("I believe in Jesus Christ"; "my religion is the religion of our fathers"; etc.). These are well-worn subjects that have received enough attention from intellects more formidable than my own.

Instead, I want to address the question of religious pluralism, secularism, and its place in constitutional history. Romney mentioned more than once that the Founders forbade religious tests (Article VI, if anyone cares to look) but he suggested in virtually the same breath that the Founders did not want to remove religion from public life. God should be on our currency, said Romney, in our pledge of allegiance, and nativity scenes in the public square during Christmas season. Those who argue otherwise (one would assume this includes Supreme Court justices), opined Romney, are intent on establishing the "religion" of secularism in America, and are wrong.

There is evidence aplenty of religion and its place in both the legal and constitutional traditions of America. But understanding this history requires something more than collecting armfuls of quotes about it from the eighteenth century and heaping them upon people of the twenty-first century. To understand what the Founders achieved when they wrote a Constitution that does not mention God once (much criticized at the time), when the only mention of religion was that no religious test could be required for officeholding, and an immediate amendment to that Constitution forbade the congressional establishment of an official religion, we must understand the larger historical context.

It is a long and complicated history. One must consider the advent of religious pluralism brought on by the protestant revolt in the sixteenth century, the wars of religion in Europe ended by the Treaty of Westphalia, and the motivations for the religious radicals (Pilgrims and Puritans) who attempted to establish a godly commonwealth--a shining city upon the hill--in North America. These people, our forebears no doubt, banished heretics, executed witches, and attempted to limit the suffrage to people of their church only. Religious radicalism and intolerance is part of their heritage. But so too must we understand the equally radical experiment of Roger Williams, who established the first official colony that disestablished the church and allowed freedom of conscience. (Click here for a link to the colonial charter.) Rhode Island was not unique, though. Pennsylvania would follow in the tradition of religious freedom and create one of the wealthiest shelters for religious refugees in the world.

And the Atlantic world to which the American colonies belonged was not one of increasing tolerance in the eighteenth century. The European Enlightenment occurred against the backdrop of political tyranny and religious persecution. Tolerance was on the wane, and even England maintained religious tests for officeholding. It was in this climate that the Founders wrote the Constitution and the people of the states debated it.

Romney acknowledged this history in his speech. Remarkably, he connected Christianity to a kind of modern cosmopolitanism. He emphasized the brotherhood of all humankind, a commitment to human dignity, and respect for others' belief as the central tenets of all religion. These are essentially humanist values, regardless of what Romney thinks of secularists. But the real question raised by his speech is what precisely we would like the relationship of church and state to be in this country. Romney is essentially pitching for more outward shows of piety by our public leaders. He is also positing that political liberty requires religion for its sustenance and that secularism is not a belief system equal to those of Christianity, Judaism, Islam, or Mormonism.

Whatever one makes of this last proposition, it is worth thinking the question through historically. Religious radicalism is infused in our past, as is a contradictory commitment to pluralism and (contra Romney) secularism. Understanding the moments of conflict between these different visions in our past might clue us into understanding precisely what problems religion and politics pose in our country and abroad. It might even give us the needed perspective to address these same problems.