-Submitted by David Drumm (Nal), Guest Blogger
The Establishment Clause is that portion of the FIrst Amendment that states: “Congress shall make no law respecting an establishment of religion.” The meaning of the phrase “an establishment of religion” is the subject of much debate. If the phrase is changed slightly to read: “the establishment of religion”, the meaning would refer to the act of establishing a religion. However, the use of the word “an” changes the meaning. With “an”, the meaning now refers to a religious establishment. Congress can make no law respecting a religious establishment.
A religious establishment would be those things a religion establishes such as a church, temple, synagogue, or mosque. A religious establishment would be the organization which operates the religion. A religious establishment would be the religious community. A religious establishment would be the form or formulary of the religious services.
The Latin cross has been established by Christianity as a symbol of the crucifixion of Jesus. When government places, or allows the placement, of the Latin cross on public land, it is approving the display of an item of religious establishment.
When the Supreme Court recently denied cert in the case of Utah Highway Patrol Ass’n v. American Atheists, the ruling of the United States Court of Appeals for the Tenth Circuit was allowed to stand. In 1998 the Utah Highway Patrol Association (UHPA), a private organization, decided to honor fallen troopers by placing large (twelve feet tall), privately funded, white crosses near the locations of their deaths.
The Tenth Circuit noted the cross memorials at issue in this case fall squarely within the rule pronounced in the Supreme Court decision in the case of Pleasant Grove City, Utah, et al. v. Summum (2009), which stated:
Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Thus, a government-commissioned and government-financed monument placed on public land constitutes government speech. So, too, are privately financed and donated monuments that the government accepts for public display on government land.
The Tenth Circuit found that the Utah crosses fell into the category of government speech as defined in Pleasant Grove.
The Tenth Circuit opined:
Here, we conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity. The memorials use the preeminent symbol of Christianity, and they do so standing alone (as opposed to it being part of some sort of display involving other symbols). That cross conspicuously bears the imprimatur of a state entity, the UHP, and is found primarily on public land.
While the Latin cross may evoke some concepts that transcend Christianity, it primarily evokes a concept that is strictly Christian.
The Plaintiffs, American Atheists, Inc., sought $1 in nominal damages, an injunction ordering the removal of these memorial crosses from state property, and an injunction ordering that the UHP insignia be removed from all UHPA memorial crosses. The District Court granted summary judgement against the Plaintiffs, and the Tenth Circuit Court of Appeals reversed and remanded.
H/T: ScotusBlog, William W. Van Alstyne.
Tony C:
As long as the state of Utah does not establish a state religion, there is nothing wrong with a Christian cross placed on the side of the road to memorialize a fallen Christian trooper. It would be wrong if a Star of David was not allowed to be placed or if an atheist symbol was not allowed.
“@Bron: The state of Utah is not promoting a religion if all of the troopers are Christian.
Yes they are, because the decision is not made by the family, it is made by the State to memorialize a state employee with an explicitly religious symbol, the cross, associated with a specific religion. ”
Utah did not place the crosses, a private group did.
@Bron: The state of Utah is not promoting a religion if all of the troopers are Christian.
Yes they are, because the decision is not made by the family, it is made by the State to memorialize a state employee with an explicitly religious symbol, the cross, associated with a specific religion.
The Supreme Court has found that the cross is both a religious symbol and is not generic, it is an explicitly Christian symbol, as virtually all Christians would agree, and virtually all non-Christians recognize; it is the symbol explicitly associated with Christ’s crucifixion.
We atheists are not ridiculous to make all this fuss, no more so than Christians would be ridiculous if the government started plastering Islamic symbolism over everything, or inverted pentagrams over everything. They are all just symbols, right? But the government isn’t supposed to BE about religion, it is there to protect us, and purposely using symbolism from a specific religion is a clear indication of overt favoritism and a violation of our right to be represented and served as equals, and the more they defend that symbolism, the more certain we can be of their bigotry and unfair treatment.
Interesting link, OS. I’ll have to say I’m impressed with the inclusive variety of selections presented.
When you are buried in one of the National cemeteries, or when the VA provides an official headstone for the burial site of a veteran in a non-VA cemetery, they give the family a choice of emblem for the stone. The link takes you to the page where you choose the emblem for your departed loved one on an official grave marker.
http://www.cem.va.gov/cem/hm/hmemb.asp
Note there is a symbol for atheists. Or one can opt to not use a symbol of belief at all.
Bron,
Are all the soldiers Christian? First of all, there are many Jewish soldiers buried in Arlington and even Muslim soldiers who sacrificed for us. Their relatives would ask for a different cross on the headstone. The headstone, unless you pay for your own is a cross. The respective religious symbol is etched into the cross/headstone.
Just as long as the Crecht and Christmas tree can go up on church property….and my menagerie of religeous symboli can go up on private property…I’m sans offense…
http://www.youtube.com/watch?v=m5SmwRsWlUM
rafflaw:
are the troopers Christian? If they are not you have a point. If they are all Christian then I see no problem. The state of Utah is not promoting a religion if all of the troopers are Christian. If there are a couple of Jewish troopers or a couple of atheist troopers memorialized with a cross I would agree. But even then the crosses were funded by private charity.
I suppose they could just put a “T” there and be done with it. Which is probably what Jesus was crucified on anyway.
Atheists are ridiculous to make all this fuss. There is nothing wrong with putting up crosses on the side of the road nor is there anything wrong with nativity scenes in the public square as long as other religions are given equal time and space.
Blouise,
At least the government should be neutral!
The language, even after all these years, is quite simple and easily understood.
The government is neutral.
Want to erect a religious symbol? Want to promote the joys of atheism? Buy some land and have at it.
The Supreme Court has in general navigated these stormy waters better than it has on some other issues.
Great article David. I agree that any Christian symbol authorized by the government is or should be a violation of the separation of church and state.
Bron,
The difference in the Arlington headstones and their crosses or Jewish stars is that the government asks the relatives what they want on the headstone. If no choice is given to the folks at Arlington, then no cross or religious symbol is added. It is the private citizen’s decision and not one done by the government.
You say “However, the use of the word “an” changes the meaning. With “an”, the meaning now refers to a religious establishment.”
I think this is an unsound analysis. Why not use the more common understanding that the word “the” is intended to mean that the reference is to be understood from the context, whereas “a” means that there exist many possible referents?
This interpretation would mean that there may be a number of ways to establish a religion, and non of them is legitimate public policy.
a couple of crosses on federal land:
http://www.arlingtoncemetery.mil/Gallery/PhotoOfTheWeek.aspx?ID=85464125-02a0-47ae-bfd9-bb5435a358ef
I see no problem especially if the state would put up a memorial of another religion if say a Hindu or Jewish officer died.
The act of putting up the cross is, in my opinion, not illegal. Only putting up Christian symbols would be. As long as the state is willing to put up a Star of David or Star and Crescent, etc. there is no establishment of religion.
Mark,
You can parse all the verbiage you want to create your version of constitutional law, but in the end the bottom line is that the admixtures of government and religion has always sown the seeds of tyranny. The tyranny sown is always harmful to those not sharing the particular religious belief. The proof lies in human history and in the state of many nations with Sharia law. The US is replete with historic incidents of the evils of mixing church with Federal, State and local governance.
Just as a point of information for you, this fine article was not written by the proprietor of this excellent, but by the estimable David Drumm, Guest Blogger.
@Mark: And really, what harm does this do to an Atheist?
The government is spending our money, including their time that we pay for and our share of land that they control when they could be spending that time, money and land on better law enforcement.
But those are small potatoes, the primary harm it does us atheists (and minority religion) is institutionalizing religious bigotry against us and endorsing the acts of those that treat non-Christians as evil. That is especially harmful among the cops, judges, prison guards and other representatives of the government itself.
So let us ask the reverse question: “What good does it do you?”
The answer is that whatever it is you value in government endorsing Christianity over Islam or Witchcraft or Paganism, whatever you think is Good about that endorsement, is precisely the harm it is doing.
While Christians may think it is self-evidently good to encourage religious belief and faith, atheists believe encouraging false belief is self-evidently harmful.
The harm is that when government chooses a religion it implicitly promotes and supports that religion, and the plausibly justified fear is that leads religious inspired ideas of what is right and wrong, including speech (e.g. outlawing blasphemy), sex (outlawing homosexuality, or out of wedlock sex), medical procedures (outlawing abortion on religious grounds), abuse (permitting males to use violence against wives and children to enforce their God-Given rights of patriarchy), commerce (outlawing business on religious holidays like Sunday, outlawing voluntary adult prostitution on moral grounds), and even outlawing other religions or rituals, or aspects thereof (like polygamy in Mormonism, or animal sacrifice in some religions).
The founders saw the correct solution: Let people believe as they wish and keep government neutral. Do not let any religion use the force and power of the government and laws and taxes, cops and military and lands, to promote their values over anybody else’s, including minorities.
The American government is supposed to be a servant to all of us, there is no “good” to be had by the government playing favorites, it is a fundamental violation of the concept that all citizens are to be treated equally by the government and by the law and courts.
The roadside crosses appear to be a Christian phenomenon. I have seen untold numbers of crosses over the years, but never once a Star of David or any other symbol of faith. I did a Google image search and did not turn up any there either.
One of the stranger things we see around here are laser cut stencils in the rear windows of cars and trucks memorializing some deceased relative or friend–and sometimes pets. For those who have not seen one, they are pretty much the same thing you would see on a tombstone except on a Mylar stencil glued to the glass. A few samples below.
http://www.google.com/search?tbm=isch&hl=en&source=hp&biw=960&bih=427&q=roadside+crosses+in+contemporary+memorial+culture&gbv=2&oq=roadside+crosses&aq=1S&aqi=g1g-S5g-mS3&aql=&gs_sm=c&gs_upl=1937l7327l0l10042l22l22l3l1l1l0l229l2482l5.11.2l18l0#hl=en&safe=off&gbv=2&tbm=isch&sa=1&q=car+window+memorials&oq=car+window+memorials&aq=f&aqi=g-S1&aql=&gs_sm=s&gs_upl=4999l7343l4l9354l11l11l0l0l0l10l603l4437l2-1.5.3.2l11l0&bav=on.2,or.r_gc.r_pw.,cf.osb&fp=a6d78bd15fd094b3&biw=960&bih=427
“And really, what harm does this do to an Atheist?”
Atheists are citizens entitled to the full expression of rights granted to all Americans. It’s hardly for you to decide what harm is or isn’t done. Forcing one’s Christianty on others, whether they are atheists, Jews, Muslims, Hindus or American Indians is as repugnant and Taliban-esque as it is un-Constitutional.
Mark,
Note that this post is written by a guest blogger.
John, I have always had trouble understanding these dilemmas especially when the courts need to be involved. First, doesn’t the 1st admendment continue to state ‘or prohibiting the free exercise thereof’? Is that being applied to ‘make no law respecting an establishment of religion’? Or is this my misunderstanding? I guess I have always interpreted that the admendment meant that the Congress could neither be held to make a law to support or denie any thing that involved a state entity from contibuting toward or against a religious establishment. If the group represents a state entity and they choose to make a religious statement what do they really violate? The admentment does not define that a state entity is not allowed to have ‘free exercise’. I think of all those national cemeteries of our service men and women filled with religious symbols. And really, what harm does this do to an Atheist? Enjoy your site.