The Jewish Coalition for Religious Liberty recently filed a friend of the court brief in support of the seemingly unlikeliest of causes — preserving the Bladensburg Peace Cross. The Peace Cross is a 93-year-old memorial dedicated to American soldiers killed during World War I. The Fourth Circuit Court of Appeals recently held that the cross must be removed from public property. Unless it is reversed by the Supreme Court, this decision could threaten memorials across the United States — including crosses on gravestones in Arlington National Cemetery. The American Jewish community ought to defend the Bladensburg cross, both out of solidarity with our Christian neighbors and because doing so is vital to Jewish interests too.
The Supreme Court will hear oral arguments in this case on February 27, 2019: The case is named The American Legion v. American Humanist Association. The plaintiffs argue that Maryland must either deface the Bladensburg monument or remove it from public property, simply because it is shaped like a cross. They maintain that the First Amendment prohibits any government action that endorses religion, and that allowing a cross to remain on public property amounts to such an endorsement. This misinterpretation of the First Amendment has no basis in the Constitution’s text, and it threatens all religious Americans, especially religious minorities.
The First Amendment states, "Congress shall make no law respecting an establishment of religion." Starting with the Lemon v. Kurtzman case in 1971, the Supreme Court determined that one way government entities could violate this provision is by conveying "a message of endorsement or disapproval of religion." This "endorsement test" is inconsistent with the text of the First Amendment. No sensible person viewing a menorah in city hall would conclude that the government had "established" Judaism as its official religion merely because it housed a Jewish symbol.
Recognizing the limits of the endorsement test, the Supreme Court has recently refused to apply it in cases regarding the constitutionality of legislative prayer and Ten Commandments displays on public property. In those cases, the Court has permitted such practices irrespective of the endorsement test which it deemed “not useful” in making its determination. Instead, the court has examined historical practice to determine what actions constitute an establishment of religion.
The leading research into that history, performed by Professor Michael McConnell, reveals the First Amendment’s true meaning. In 1789, Americans recognized the hallmarks of an established church, as many existed in the colonies and in Europe. The founding generation understood that the Establishment Clause would prevent traditional "establishments," including government control of religious doctrine, the use of taxes to generate church revenue, mandatory church attendance, prohibitions on dissenting churches, and limitation of political participation to adherents of the established church.
Based on this history, the Supreme Court has recently focused the presence of governmental coercion to determine whether an action violates the First Amendment. This historical test protects the right of religious Americans to fully participate in public life while also preventing a true establishment of religion.
The plaintiffs challenging the Bladensburg Cross hope that the Supreme Court will revive the endorsement test. The Court should decline their invitation. The endorsement test creates a heckler’s veto and threatens to drive religion from the public square. Under the endorsement test, plaintiffs merely have to claim that they feel offended or excluded by a religious display to sue the government. Courts then applies a subjective test to determine if an imaginary "reasonable observer" would believe that the government had endorsed religion.
Judges have different views regarding an imaginary "reasonable observer’s" proclivities, and they therefore reach inconsistent conclusions in Establishment Clause cases. Some menorahs on public property are constitutional, while others must be removed. Some Ten Commandments displays are permitted, and others are illegal. It is almost impossible to predict which side will prevail. Given the ease with which these cases can be brought, and the unpredictability of the results, the mere existence of the test may deter governments from publicly accommodating religious people.
Such hesitancy is likely to disproportionately affect religious minorities. Americans, including judges, are more likely to regularly encounter Christian symbols and to see them as part of the background rather than as offensive intrusions. However, symbols associated with minority faiths stand out and are therefore more likely to provoke lawsuits.
This is not mere conjecture. Secularists have frequently attempted to banish menorahs from public property. Recently, litigants claimed that the Establishment Clause prohibited the city of Boca Raton, Florida, from granting a zoning variance to allow Jewish citizens to build a synagogue. The plaintiffs claimed, among other things, that by showing such "favoritism" to Judaism, the city made them feel "disenfranchised" like "outsiders." While the plaintiffs lost that particular case, it is difficult to predict what might happen next time if the Supreme Court reinvigorates the endorsement test.
Attempts to prevent Jews from building religious structures that enable them to live in a community are one of the most pernicious examples of this litigation. An eruv is a ceremonial wire strung around Jewish communities. Some Jews believe this enables them to engage in activities, such as carrying outdoors, that are otherwise prohibited on the Sabbath. Without an eruv, it is difficult to build a large community of religious Jews. Opponents of installing an eruv have claimed that governmental permission to build an eruv, which is often strung from public utility poles, violates the Establishment Clause.
If the plaintiffs prevail in those cases, they could effectively block Jews from moving into a community. Under the endorsement test, the outcome of such challenges is up to the subjective whim of individual judges. So far, such cases have thankfully been unsuccessful, but the amorphous nature of the endorsement test makes future cases unpredictable. And more alarmingly, the mere specter of such litigation may deter towns from allowing Jewish communities to build an eruv. If the Supreme Court clarifies that the First Amendment prohibits religious coercion rather than endorsement, such claims will be universally exposed as meritless.
By protecting the Bladensburg Cross, the Supreme Court can help create a lively and pluralistic public square, one in which all religious Americans can express their faith. Courts will still have a role to play in ensuring that government entities do not use their coercive powers to establish or destroy any faith. But this is far preferable to the alternative — a sterile secular public square policed by the most intolerant and litigious among us.
Howard Slugh is the General Counsel of the Jewish Coalition for Religious Liberty, as well as an attorney practicing constitutional law in Washington, DC.