In recent decades, progressives have turned to the courts to accomplish what ought to be done in the political arena. No less is that true than when it comes to religiously expressive symbols that appear in public. The U.S. Supreme Court's decision in The American Legion v. AHA may be redirecting activists back to where the debate should take place.
Justice Samuel Alito, authoring the Supreme Court's majority opinion in the recent case, explained that "established, religiously expressive monuments, symbols, and practices" are now afforded "a strong presumption of constitutionality." That is good news to the citizens of Lehigh County, Pennsylvania.
A few years ago, someone complained about the county's official seal. When political means of having the seal altered failed, a group of secular activists sued. The county's seal, originally adopted the seal in 1944, displays the words "LEHIGH COUNTY" scrolled on a yellow ribbon with images of industrial buildings, imagery suggesting agriculture (including a cow), and topped with flags, bunting, and a red heart. And, most offensive to the activists: a large cross.
The contention of these strict church-state separationists was that the symbol — when displayed on public buildings, the side of county vehicles, and atop municipal stationary — establishes the Christian religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution.
Mercifully, the U.S. Court of Appeals for the Third Circuit disagreed. Third Circuit Judge Thomas Hardiman, writing for Judges Cheryl Ann Krause and Stephanos Bibas, looked to the decision in The American Legion, borrowed the words of Justice Alito, and declared the seal to bear "a strong presumption of constitutionality."
As Judge Hardiman made clear, that presumption of constitutionality flips the script. Whereas activists once rebuffed by the political process might depend upon a court-created "reasonable observer" to remove a religiously expressive symbol from public property based on little more than offense, under the newly announced standard they must now "demonstrate discriminatory intent in the decision to maintain a design or disrespect based on religion in the challenged design itself."
That far more exacting standard restrains judicial overreach as much as it preserves the intent of the First Amendment's Establishment Clause.
Judge Hardiman's opinion also refocused an outstanding question: just how "long" must something be around in order to be "longstanding"? The answer lies not so much in the chronological age, but whether the challenged monument, symbol, or practice is within the longstanding tradition of our country.
"The Lehigh County seal fits comfortably within a long tradition of State and municipal seals and flags throughout our Republic that include religious symbols or mottos," Judge Hardiman explained, "which further confirms its constitutionality."
That seems to be precisely the point Justice Neil Gorsuch had in mind when writing in his concurring opinion to The American Legion that "what matters when it comes to assessing a monument, symbol, or practice isn't its age but its compliance with ageless principles."
Such principles, he suggests, are timeless: "The Constitution's meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation's traditions is just as permissible whether undertaken today or 94 years ago."
Among those timeless principles is that the Constitution restrains government — including judges and justices — from overruling community sentiments by ordering the destruction of religious symbols in public.
Consider what might be the proposed resolution to Lehigh County's seal. Must a court order a community of self-governed Americans to cover part of their seal with a "censored" sticker? Must they morph the design into something more acceptable to the activists?
Any of those solutions, carried out by the hand of government would, according to Justice Samuel Alito, exhibit "a hostility toward religion that has no place in our Establishment Clause traditions." Judge Hardiman agreed: "we too decline to invite such dissension."
Displaying a cross on a county's seal is Constitutional and "fits comfortably within a long tradition" of a local community mixing religious and secular symbols in public. Should tomorrow, next year, or a hundred years from now the good citizens of Lehigh County wish to update their seal, the "community can retain or remove it in keeping with the First Amendment," wrote Judge Hardiman.
That's how our democratic process works. And that's what The American Legion decision protects. Rather than allow judges to force the removal, destruction, or censoring of religiously expressive monuments, symbols, or practices, The American Legion line of cases safeguards the history of our country, the text of our Constitution, and the simplicity of a self-governed local community.
Jeremy Dys (@JeremyDys) is Deputy General Counsel for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans. Read more at FirstLiberty.org.