Courts

The Bladensburg Cross Case Is A National Disgrace

Denying that forced extractions is a form of government coercion is madness enough, but the outright hostility shown by the Court to the objections of non-believers promises great trouble ahead.

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(Photo by Chip Somodevilla/Getty Images)

Although the result in The American Legion v. American Humanist Association case was entirely predictable, reading it still left me stunned. The case involves a dispute over whether a local government in the state of Maryland can tax its citizenry in order to maintain an overtly Christian World War I memorial.

With an objective Court, a decision recognizing that the state had no such coercive taxation power under the First Amendment would have been readily assured. After all, I am old enough to remember when the United States Supreme Court believed that government financially compelling free and independent individuals to endorse beliefs they find objectionable was always demeaning. When an individual’s objection to such forced extractions was not trivialized as the taking of mere offense, but a sacred objection against tyrannical government power. But, alas, that was the long-forgotten time of ….*checks notes*…. holy shit, just a year ago?

It is undeniably telling about the state of free conscience liberty that when faced with extending the same principles against forced extraction to non-religious or non-Christian citizens, the Court’s views on the issue abruptly changed. Nothing can excuse such blatantly different outcomes to the same objection, and no explanation other than outright religious bigotry against non-believers can explain the outcome in the Bladensburg cross case.

From the beginning of the Court’s plurality opinion, it becomes rather transparent that Justice Samuel Alito is seeking to diminish the objection of the non-believer against being forced to pay for a religious monument. According to Alito, the objection boils down to being merely offended at the sight of the monument. Moreover, in contrast, Justice Alito takes a great deal of time to elevate Christian moral objections regarding the views of the same monument. For example, Alito states that “[a] government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”

Using Alito’s own logic here however begs the question: Why is a country that roams the land forcing people to pay for the erection and maintenance of religious monuments not seen as being aggressively hostile to non-religious people? More importantly, as noted by the dissent, tearing down these monuments is not the only solution. All the state of Maryland had to do to conform with First Amendment principles was stop forcing people to pay for the Christian monument and instead let the upkeep be maintained by willing donators. I will never understand why an insistence on willing participants was not enough to settle this case and that the only satisfactory outcome for the cross’s radical theocratic proponents was having the authority to force unwilling others to pay.

The framing by Justice Alito in the plurality opinion and Justice Neil Gorsuch in his concurrence of the objection to paying for these monuments as  being one of mere offense is most troubling because it goes against the Court’s recent First Amendment jurisprudence. In the Janus case decided just last year (and that I cite in the second paragraph of this piece), a citizen was objecting to the government (in the form of public sector unions), forcibly extracting money to pay for the promulgation of political speech the citizen disagreed with. In that case, the Court focused not on the mere offense of the individual with the particular beliefs being expressed, but rather on the fact that the government was forcibly extracting money from the citizen to pay for promulgation of the beliefs. Had the Court focused on the issue of forced extraction in the Bladensburg case, it would undoubtedly have reached the same conclusion as it did in Janus, which, of course is why it ignored the issue.

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To be clear, I wholeheartedly agree with the decision in Janus, such forced extraction by the government to convey beliefs, either political or religious, is unlawful to any fair reading of the First Amendment. However, what makes the Janus decision even more remarkable when compared to the Bladensburg case is that Janus was decided based on original principles of religious freedom. Yet, just a year later, and faced with a case of citizens objecting to the power of the state to extract money in order to promulgate religious speech/beliefs — you know the kind of objection that original religious freedom was based upon — the Court refuses to apply the original religious freedom analysis it applied in Janus. Instead, the Court engages in a transparently biased selective historical analysis to reach an absurdly obvious preferred conclusion that favors religion over non-religion.

The absurdity of the Court’s historical analysis demonstrates just how far they are willing to abandon all reason to favor religion at the expense of those who are not religious. As other commentators have noted:

The court’s own historical citations betray the weakness of this reasoning. Immediately after World War I, commentators regularly claimed that the United States was a “Christian nation.” In that cultural and political milieu, what commemorative symbol would one choose other than a cross? As the court recites, the dedication ceremony’s keynote speaker proclaimed the cross as “symbolic of Calvary” and fitting tribute to those who gave their lives in a “righteous cause.” The Latin Cross is not a randomly chosen symbol. For those who believe, it represents – both then and now – the unique event of Jesus’ crucifixion, and God’s subsequent resurrection of the Son in triumph over death.

The court’s opinion suggests that some new public meaning, its derivation undeclared, has sufficiently muted the uniquely Christian character of the Latin Cross. By the magic of history and tradition, that sacrifice has transcended Christianity. Some Christians may celebrate this decision, but it should instead be mourned as a political misappropriation of a powerful symbol of Jesus’ redemptive death.

In other words, according to the Court, the Latin Cross has transcended religion and become a secular symbol. This is literally the equivalent of saying that Jesus Christ is not a Christian figure, an idea so absurd that it becomes somewhat offensive that the Court would expect people paying attention to take this conclusion seriously.

Unfortunately, such a transparently biased outcome that favors Christianity at the expense of every other belief is becoming an all too familiar outcome, in a particularly dangerous time.  As I have repeatedly stressed, we are in a unique moment in our history when a sizable portion of the population with whom religion plays no role lives alongside an equally sizable portion for whom religion plays a vital role. Disturbingly, the growth of a non-religious population that demands the same free conscience protections has come to be seen as a menacing threat to many religious people. It is now to the point that a religious zealot and bigot who just so happens to be the country’s former Attorney General can openly describe irreligious citizens as a dire threat to our country that must be stopped.

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Some might point to Justice Brett Kavanaugh’s concurrence stating that the irreligious are every bit as American as those who are religious as a welcome refutation of such bigotry. While it was “nice” of Everything-I-Don’t-Like-Is-a-Clinton-Conspiracy Brett Kavanaugh to say, such acknowledgement is meaningless when said in a context of the Court expressly favoring religion. Indeed, Justice Kavanaugh’s concurrence reminded me of the proponents of the bigoted anti-Catholic Blaine Amendments, who, despite having a clear anti-Catholic intent in the law nevertheless insisted (lest they be labeled the bigots that they were) Catholics still had equal rights of conscience. Put simply, expressions of equality are meaningless when you are agreeing to set up an expressly unequal legal doctrine. Until and unless the courts begin to treat irreligious free conscience objections with the same respect as religious ones, animosity, anger, and indeed the potential for violent strife between the religious and the irreligious will continue to grow. Shame on this Court for furthering this bigotry and friction, and the stain of this decision will remain a national disgrace until it is overturned.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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