In what will almost certainly be a victory for the religious right, the Supreme Court announced on Friday that it will decide whether the Constitution permits a local government to display “on public property a 40-foot tall Latin cross, established in memory of soldiers who died in World War I.” Although a federal appeals court held that this cross violates the Constitution’s ban on laws “respecting an establishment of religion,” the confirmation of Brett Kavanaugh — which gave Republicans a solid five-person majority on the Supreme Court — all but guarantees that this lower court decision will be reversed.
The cross dispute arises in two consolidated cases, American Legion v. American Humanist Association, and Maryland-National Capital Park v. American Humanist Association.
The Supreme Court typically hears a religious monument case every few years — it considered a case brought by a religious organization hoping to build a monument to “the Seven Aphorisms of SUMMUM” in 2009, and last considered when the Constitution permits the government to display Christian iconography in 2005.
Beginning in the late 1980s, the Supreme Court appeared to settle on a test that judges could use to determine when the government is allowed to display religious images on its own property. As Justice Harry Blackmun wrote in County of Allegheny v. ACLU, the Constitution prohibits “governmental endorsement of religion.” That is, the Constitution “prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person’s standing in the political community.'”
Under this test, many government displays of religious icons remain constitutional. The Supreme Courtroom itself is decorated by images of famous historical lawgivers, for example, including the Jewish prophet Moses and the Islamic prophet Muhammad. These images are widely viewed as unoffensive to the Constitution because they do not appear to endorse Judaism or Islam when seen in context.
Moses and Muhammad are displayed along other historic figures such as King Hammurabi, Caesar Augustus, Napoleon, and former Chief Justice John Marshall. Thus, it is clear that Moses and Muhammad are depicted because of their contributions to the secular field of lawmaking, not because of their religious significance.
Yet, while this “Endorsement Test” rose to prominence when the Supreme Court was dominated by liberals and moderate conservatives, it is largely viewed as anathema by the hardline conservatives who control the Supreme Court today. Even Justice Anthony Kennedy, who was well to the left of Kavanaugh and the other members of the Court’s current majority, claimed that the Endorsement Test “reflects an unjustified hostility toward religion.”
According to Kennedy, government endorsements of faith are acceptable so long as lawmakers do not attempt to “further the interests of religion through the coercive power of government.” The American Humanist Association cases give the Court’s Republican majority an opportunity to, at the very least, write this narrow conception of the separation of church and state into the law.
The particular cross at issue in American Humanist Association has stood for 93 years. So, a decision reversing the lower court will change very little in the short term. In the long term, however, such a blow to the separation of church and state could embolden Christian nationalists and distort American politics.
The rule against government endorsement of religion exists for two interrelated purposes. As Justice Sandra Day O’Connor explained, “the endorsement test captures the essential command of the Establishment Clause, namely, that government must not make a person’s religious beliefs relevant to his or her standing in the political community by conveying a message ‘that religion or a particular religious belief is favored or preferred.'”
America is a pluralistic society where people of many faiths and people of no faith all stand on equal footing as citizens. Government endorsements of religion communicate the opposite message, that people of certain faiths are preferred.
Similarly, as the Supreme Court explained in Lemon v. Kurtzman, “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.” In a society where government may fund religious displays and expressions of religious belief, lawmakers are likely to divert funding from schools, roads and other essential services to such displays. Worse, candidates for office may campaign on promises that they will use their office to advance one religious belief or another — and elections could become referendums on religious identity rather than debates over policy.
The Court is likely to lift safeguards against such political divisions in American Humanist Association, and this decision in unlikely to be the last gift the Court’s Republican majority gives to the Christian right.
Just a couple of weeks ago, anti-LGBTQ lawyers filed a petition asking the Supreme Court to consider, once again, whether religious conservatives have a special right to defy anti-discrimination laws. With Kennedy gone, and Kavanaugh occupying Kennedy’s seat, it is likely that there are now five votes to permit such discrimination.