The Supreme Court on Wednesday heard a lawsuit about a gigantic cross sitting on government property, and though the suit was actually brought by secular humanists who objected to the cross, it could well become a vehicle for the court’s conservatives to take a significant chunk out of the wall separating church and state.
At no time in decades has that wall been under more threat. Religious conservatives feel that they're losing the culture war — which they are — but with the Supreme Court firmly in conservative hands, they're winning the war in the courts.
This case concerned the Peace Cross, a 40-foot-high memorial erected on public land almost a century ago in Bladensburg, Md., to honor World War I dead. The question the court confronted is whether the cross is an unconstitutional endorsement of a particular religion.
What interests me most about cases such as this one is the effort on the part of conservatives to claim that plainly religious symbols are in fact not religious at all. This played out most vividly in a similar case in 2009, when Justice Antonin Scalia tried to assert that a cross is simply “the most common symbol of the resting place of the dead” and has nothing in particular to do with Christianity. One of the lawyers in the case replied, “The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.”
Nevertheless, the court ruled that that cross could stay, as it is likely to do with this one. Once again, the cross’s defenders argued that it isn’t a religious symbol; it’s just this thing we associate with graves and memorials. Believe me when I tell you that virtually no one who isn’t Christian agrees.
The question for the Supreme Court is what kind of legal standard it will establish to apply to cases such as these. The most radical idea is one that some conservatives would prefer, in which it would be fine for the government to make all kinds of religious statements as long as it isn’t coercing anyone into a particular belief. In other words, your town could place a giant statue of Jesus atop city hall and that would be fine.
Fortunately, most of the conservative justices on the court seem unwilling to go that far. But they are surely looking for new precedents they can establish to chip away at church/state separation and say that religious expressions such as this one are fine, just as they ruled in the Hobby Lobby case that corporations can decide which laws they want to disobey if they find a religious justification for their action.
But wait, you might say — this is all just about religious freedom and religious expression broadly, not about carving out special rights for Christians. But conservative Christians make these arguments precisely because they are in the majority, so they know that in almost every case where the government puts up a religious monument, it’s going to be their religion being honored.
This gets to the particular historical moment we’re in. When Donald Trump said that if he was elected people would once again be free to say “Merry Christmas,” he was lying in the sense that no one is forbidden from saying “Merry Christmas” and no one ever stopped saying it, but he was also getting at a deeper truth that conservative Christians face. They believe that they are an oppressed majority in America today, and while that’s not true either, they have indeed lost something. They’ve lost the cultural hegemony that they once enjoyed, in which their faith and only their faith is honored in the public arena, and everyone who isn’t Christian just has to suck it up.
In many parts of American life, that’s no longer true. We’ve now moved toward a more inclusive set of cultural norms that acknowledges that though most Americans are Christian, many other Americans follow other religions or no religion, and they deserve respect and acknowledgement, too. Many stores do indeed wish their patrons “Happy Holidays” in order to be inclusive. Schools in many areas are closed not only on Christmas and Easter, but also on Yom Kippur and maybe even Eid al-Fitr.
If you’re used to the entire society acting as though your religion is the only legitimate one, that might feel like a shock. Now combine that with the fact that you see the culture moving away from your values in other areas like sexuality and child-rearing, where society accepts same-sex marriage and condemns the use of physical violence as a child-rearing tool. You might sincerely feel that everything you believe in is under assault, and look to the courts to preserve your religion’s primacy in any way you can.
If you’re used to being on top, a move toward simple equality seems terribly unfair. You can see that impulse in recent comments from Paul LePage, the former governor of Maine. Speaking on a radio show, LePage warned against a plan promoted by activists to circumvent the electoral college by getting a large enough group of states to give their electoral votes to whichever candidate wins the national popular vote (under the Constitution states can assign their electoral votes however they please).
“What would happen if they do what they say they’re gonna do is white people will not have anything to say," said LePage. "It’s only going to be the minorities that would elect. It would be California, Texas, Florida.” He went on to assert that “we’re gonna be forgotten people.” In other words, a system in which white people don’t have a disproportionately large influence on the outcome, a system in which every American has an equal say, is the same thing as whites being completely disenfranchised.
There’s no telling what the future of the electoral college is, but we can be sure that as America grows more diverse, conservative Christians will feel more and more alienated from the culture. But they’ll keep finding a friendly ear for their grievances on the Supreme Court. And that gigantic cross isn’t going anywhere.