The Supreme Court ruled last week that nonbelievers and those of other religions had no reason to be unduly disturbed if a government meeting opened with a Christian prayer.
Without more overt actions, there was no reason to see such invocations as government endorsement of a particular religion, Justice Anthony M. Kennedy wrote. And offended adults could simply leave that portion of the meeting or quietly let the time pass without being seen as endorsing the religious message delivered, he said.
“Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith,” he wrote.
The court’s decision, with its five most consistent conservatives seeming comfortable with the historical mingling of government and religion, cheered those who have other matters for the justices.
Crosses, for instance.
Should D.C. commuters whizzing by the Memorial Peace Cross in Prince George’s County see it as a monument to the dead of World War I or as the preeminent symbol of Christianity planted on government land?
Those who live in San Diego look to the hills of Mount Soledad and see a giant lighted cross that has been adopted by Congress as a national war memorial. But others see it as a poke at their faith, or lack thereof, in direct conflict with the constitution’s prohibition against government establishment of religion.
Those defending the Mount Soledad cross, built in 1954 and the subject of 25 years of litigation, have asked the Supreme Court to review a district court’s decision that it must be dismantled.
The lower court said that was the only remedy that would satisfy an earlier ruling of the U.S. Court of Appeals for the 9th Circuit that the memorial as “presently configured and as a whole” violates the Establishment Clause.
Those defending the cross say that there is no point in sending the case back to appeals court and that the Supreme Court should step in now to finally resolve the controversy and others like it.
“As long as the Ninth Circuit’s decision stands, it puts into question the legality of hundreds, if not thousands, of veterans’ memorials across the country,” said the petition of the Mount Soledad Memorial Association.
“Even though the district court stayed its order, the specter of the memorial cross being torn down looms large over the memorial, the city of San Diego, and American veterans of all wars.”
(The legal battle over the Prince George’s County cross, erected in Bladensburg in 1925, is not nearly so far along. The challenge to the cross was filed earlier this year by the American Humanist Association and several individuals. They say it is a memorial more fitting for “missionaries or crusaders” than fallen soldiers and should not be on land owned by the Maryland-National Capital Park and Planning Commission.)
The Supreme Court’s decision last week in Town of Greece v. Galloway said the history and tradition of invoking divine guidance for government leaders had to be taken into account when deciding whether modern practices violate the constitution.
Not surprisingly, Hiram Sasser of the Liberty Institute, which is defending the Mount Soledad cross, believes the decision helps his cause.
“At the very least, the Galloway decision expands the analysis [of the Establishment Clause] to historical practices,” Sasser said. War memorials often include crosses, he said.
Also not surprising is the reaction of those on the other side.
“There is no history of the U.S. government displaying a giant cross to represent veterans of all faiths,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief.
The Supreme Court has asked Mach to respond by next month about whether it should take the case now.
The Obama administration sided with the town of Greece in the prayer case and is defending Congress’s decision in 2006 to make Mount Soledad a national monument. Tearing it down, the government’s brief says, would “unnecessarily foster religious division.”
But since the lower court’s decision has been stayed, the brief says, there is no reason for the Supreme Court to get involved now, before it goes back to the 9th Circuit.
The justices in 2010 decided that a memorial cross in the Mojave National Preserve that had been transferred to private ownership could stand. The Mount Soledad case is different because the cross is on public land.
The oral arguments in the case produced a memorable exchange about whether a cross had become an almost universal symbol of the resting place for the dead.
Peter J. Eliasberg, an ACLU lawyer, said it had not. “I have been in Jewish cemeteries,” he said in an exchange with Justice Antonin Scalia. “There is never a cross on a tombstone of a Jew.”
Amid laughter from the audience, Scalia responded: “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.”
There’s an intriguing coda to that case, Salazar v. Buono.
The government’s lawyer arguing that the cross should remain in place was Elena Kagan, then President Obama’s solicitor general. After that term, she replaced Justice John Paul Stevens, who rejected her arguments on behalf of the government.
“I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message,” Stevens wrote. He was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Last week, it was Kagan who wrote the dissenting opinion in the prayer case. The town, she said, went too far in almost exclusively inviting Christian prayer-givers to give the invocation.
“In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government,” she wrote.