It does, however, stand there, as it has since 1925 — so what is to be done with it now? That was the question before the Supreme Court on Wednesday, when critics of the Peace Cross, led by the American Humanist Association, argued that the cross promotes a particular religion, to the detriment of others and in violation of the First Amendment’s prohibition against the establishment of an official faith. The cross must be either removed or privatized, they contend.
A majority of the justices seemed reluctant to agree. Admittedly, their thinking was not crystal clear, beyond general unease at purging any and all religious symbols from the public space of a country whose present may be increasingly secular but whose past was not. That concern cut across the justices’ traditionally left-right lines, prompting a nuanced discussion of the specific features of the Peace Cross, including secular inscriptions and the names of 49 local soldiers. Justice Elena Kagan, for example, noted that it was a product of a “historic moment in time” when the cross had acquired a more generic meaning because of its association with battlefield gravesites in Europe.
This close attention to context is wise. An undifferentiated approach to the various public monuments around the country could spawn avoidable religious conflict, as Justice Stephen G. Breyer has warned. At the same time, the court should not use this case to write a new rule permitting publicly sponsored religious displays as long as they do not “coerce” religious belief, as urged by the American Legion, which originally constructed the cross. A municipality armed with that standard could move from protecting a historic, arguably mixed secular-religious display, such as the Peace Cross, to building new religious symbols and telling those who object, in effect, “just ignore it.”
To be sure, the court’s religious-establishment doctrine is a bundle of contradictions and compromises, which is why the Peace Cross case arose and why some are urging the court to use it as an opportunity to create a doctrine that really will cover all cases. The fact, though, is that the Supreme Court’s struggles reflect not intellectual failure but the actual difficulty of balancing all the legitimate interests of a religiously diverse nation. Frustrating as it might be to purists, muddling through remains the court’s best option.