In a lawsuit between the American Humanist Association and the Maryland-National Capital Park and Planning Commission, the court held the cross violates two prongs of the three-pronged legal test first laid out in 1971 in Lemon v. Kurtzman, specifically, that the cross has a “principal or primary effect that advances, inhibits, or endorses religion” and fosters “an excessive entanglement between government and religion.”
Should the American Humanist Association get its way on remand, the cross could be demolished or have its horizontal beams removed “to form a non-religious slab or obelisk.” Such an outcome is unlikely in the foreseeable future, however, as the cross’s defenders vow to take the case all the way to the Supreme Court, if necessary.
Historically, formulating a bright-line rule for the establishment clause of the First Amendment has been a notoriously difficult task. In 2010, Justice Antonin Scalia lamented having to forgo “an opportunity to clarify the law” on the establishment clause but acknowledged the court has no power to do so “unless and until a proper case has been brought before [it].” If the Maryland cross dispute proves to be such a case, the Supreme Court should overhaul establishment clause jurisprudence, preferably in a way that enshrines into law religion’s influence on the Constitution and the founding of the American republic.
The republic established by the founders was, and always will be, a nation of Abraham. Throughout American history, there are seemingly limitless instances of laws respecting the role of religion, namely Christianity, in American life (e.g., Prohibition banned the consumption or sale of alcohol but provided an exception for sacramental use of wine; the pocket veto excludes Sundays from its 10-day toll).
Yet one need not be aware of these historical examples to see religion’s role in American government. A brief glance over the centerpiece of the American experiment — the Declaration of Independence — is nearly dispositive: “The Laws of Nature and of Nature’s God” entitle people to assume separate and equal station; men are endowed by their “Creator” with certain unalienable rights; the pledging of lives, fortunes, and sacred honor was made “in reliance on the protection of divine Providence.” Prior to the Declaration of Independence, such terms were used in the English tradition to describe not just any vague higher power but a specific supreme being: the God of Abraham, Isaac, and Jacob.
This is why the Lemon test, particularly the third prong concerning “excessive entanglement,” is fundamentally nothing more than a silly game of pretend. The courts themselves and the laws they interpret are inextricably anchored in Abrahamic understandings of morality and justice. Yet the Lemon test ignores this reality and instead reads into the establishment clause an Orwellian requirement to purge religious symbols from the public square. In doing so, it assumes the courts possess the shrewd omniscience necessary to invert the Lockean construct of sovereign power to give the judiciary prerogative over divine Providence itself.
In 1947, Justice Hugo Black channeled Thomas Jefferson when he wrote in Everson v. Board of Education, “The First Amendment has erected a wall between church and state.” Justice Black was mostly right, but the separation apparatus he described is a floor not a wall.
A wall is a barrier separating two entities (like the church and the state) that are at presumably equal elevation. But the founders did not see the church as being on equal footing with the state. The church, as a proxy for God, was the foundation, responsible for supporting the superstructure — i.e., the state. The establishment clause is the floor of the superstructure; it prevents the building’s inhabitants from falling into the pit of theocratic tyranny. This is what John Adams meant when he said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
To that end, I propose we dispense with the pretending of Lemon and adopt a new rule that does not require our judges to chip away at our republic’s foundation. Such a rule should reject an overwrought obsession with “excessive entanglement” and instead emphasize the individual right to worship (or not to worship) free from compulsion or prohibition. This, not severing entirely the nexus between our civic institutions and religion, was the founder’s intent in drafting the establishment clause.