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How Old Does a Monument Need to Be?

In American Legion v. American Humanist Association (2019), justices of the Supreme Court held by a 7 to 2 vote that an “immense Latin cross [that] stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland” did not violate the First Amendment. The memorial, known as the Peace Cross, was erected in 1925. A few weeks after the June 20  decision, the United States Court of Appeals for the Third Circuit rejected a Freedom from Religion Foundation challenge to a seal featuring a Latin cross that was adopted by Lehigh County, Pennsylvania in 1944.

Those who would remove religion from the public square have suggested that these monuments are, in the words of Garrett Epps, “Fine Now—If They’re Old.” Put another way, if a religious symbol, image, or inscription on public property has been there for a long time, it is constitutional; if was adopted recently, it is not. Such an approach may be reasonably attributed to Justice Stephen Breyer, who stated in the Peace Cross oral arguments that: “History counts. And so, yes, okay, but no more.” His concurring opinion in the case, which was joined by Justice Elena Kagan, suggests that this may well be the position of both justices.

Where Are We to Draw the Chronological Line?

There are several problems with this proposed rule of law. First, how old does a monument need to be? Must it have reached the age of 90? Or would it be 50? Or maybe 20? Or perhaps only future uses of religious symbols on public property are prohibited?

Note that any of these possibilities would favor Christianity over other faiths. In the late 18th century, approximately 98 percent of white Americans were Protestants, 2 percent were Roman Catholics, and there were approximately 2,000 Jews in a handful of cities. By the early 20th century, the percentage of Catholics and Jews had grown significantly, but at least 95 percent of Americans still identified themselves as Christians. Governments regularly utilized Christian symbols, language, and images in public buildings and monuments. The Peace Cross is far from the only public monument to utilize this profoundly Christian symbol.

(I agree that symbols can have multiple meanings, or take on new meanings, but there is merit in Justices Ruth Bader Ginsburg and Sonia Sotomayor’s observation that “The Latin cross is the foremost symbol of the Christian faith, embodying the ‘central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.’”)

It was not until after the First World War that the tombstones of Jewish soldiers buried in national cemeteries could include a Star of David rather than a Latin Cross. Today, the grave-markers of Muslim military members can include the Crescent and Star, those of Baha’i military members can include that faith’s Enneagram (nine-pointed star), and so on. Few activist groups challenge the use of religious symbols in this context.

But when communities choose to adopt religious symbols, images, and inscriptions in other public settings, they can run into trouble. In 2012, for instance, the state of Ohio approved a Holocaust and Liberators Memorial, a central feature of which is a fractured Star of David.  Before it was dedicated, the Freedom From Religion Foundation sent a letter to the head of the state’s Holocaust Memorial Committee objecting to erecting a “religious symbol on government property.” The organization had no problem with the memorial per se, merely the inclusion of a “readily identifiable Jewish symbol.” Despite the foundation’s complaint, Ohio dedicated the memorial on June 2, 2014.

The Holocaust memorial in Columbia, the capital of South Carolina (dedicated in 2001), features the Star of David prominently, as does a memorial in New Orleans (2003). Charleston, South Carolina’s memorial (1999) contains as its “central element” a “lonely discarded tallit, the Jewish prayer shawl used by men in the synagogue and also in which for some it was customary to be wrapped for burial.”

The United States Holocaust Memorial Museum in Washington, D.C. (1993) was built on land donated by the federal government and receives annual appropriations from Congress. Its Hall of Remembrance can be interpreted as referencing the Star of David, and passages from the Hebrew Scriptures are inscribed on the building’s walls, including: “What have you done? Hark, thy brother’s blood cries out to me from the ground!” (Genesis 4:10); “Only guard yourself and guard your soul carefully, lest you forget the things your eyes saw, and lest these things depart your heart all the days of your life, and you shall make them known to your children, and to your children’s children” (Deuteronomy 4:9); and “You are my witnesses” (Isaiah 43:10).

Similarly, Idaho’s Anne Frank Human Rights Memorial (2002) contains numerous inscriptions from different religious leaders, including: “Let my people go” (Moses); Let justice roll down like waters, and righteousness like an ever-flowing stream” (Amos); “What you do not want done to yourself, do not do to others” (Confucius); “Not in the sky, nor in mid-ocean, in a mountain cave, is found that place on earth where abiding one may escape from the consequences of one’s evil deed” (Buddha).

The Varieties of Religious Symbolism

As America becomes more diverse, the range of religious images and language used in public places is bound to continue to expand. In 2001, New York City dedicated a tree and plaque to commemorate “the founding of the Hare Krishna religion in the United States.” And, as Justice Samuel Alito noted in his opinion in the Peace Cross case, “a new memorial to Native American veterans in Washington, D.C., will portray a steel circle to represent ‘the hole in the sky where the creator lives.’”

By most definitions, the buildings and monuments in the preceding paragraphs are new, not old. To hold that the Establishment Clause protects old monuments but not new ones would have the perverse (and almost certainly unintended) consequence of permitting the Peace Cross to remain in place while requiring the removal of, for instance, the Star of David in the Ohio Memorial. Surely the Constitution does not mandate such a result.

What if governments were merely proscribed from any future use of religious symbols, images, or language in the building of memorials or other such structures? If so, the still-in-the-works Native American War Memorial would have to be redesigned to remove such references, and civic authorities would be prohibited from utilizing heretofore neglected symbols and language from other minority faiths.

As I show in my recently published Did America Have a Christian Founding?, an originalist understanding of the Establishment Clause does not require governments to scrub religion from public spaces.  The erection of building and monuments containing religious language, images, and symbols is, to borrow from Chief Justices Warren Burger’s opinion in Marsh v. Chambers, “deeply embedded in the history and tradition of this country.”  When buildings and monuments are erected should not be, from an Establishment Clause perspective, decisive.

Civic friendship and prudence should inform decisions about the use of religious symbols today.  America is far more diverse than it was 100 years ago, so it would be inappropriate for a government to erect a massive cross to honor U.S. military members from different faiths. On the other hand, it is both constitutional and fitting to include crosses, stars of David, and other religious symbols in the 9/11 Memorial. The Establishment Clause does not require a religion-free public square, no matter how many times the Freedom From Religion Foundation insists that it does.

Reader Discussion

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on October 24, 2019 at 09:06:40 am

[…] symbolism portends is as yet unclear; but some interpretations would lead to perverse results. How Old Does a Monument Need to Be? syndicated from […]

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on October 24, 2019 at 10:50:21 am

Mark, This is a well argued and written article; thanks for posting it. I agree that the test of "oldness" is quite problematic and that the Establishment Clause does not require a religion-free public square, as several of your examples make clear. Your article, however, fails to provide a principled test for determining what would violate the EC. I submit that it should be whether a government action, e.g.,displaying a religious symbol on public property, would be generally understood as its endorsing or favoring a particular religion. Would you agree? Ellis

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Ellis West
on October 24, 2019 at 12:37:01 pm

Thanks for the kind words, Ellis. I think the endorsement test is too subjective and has little support as a matter of original understanding. I argue in my book that the Establishment Clause prevents governments from creating establishments, and follow McConnell in believing that this include things like (1) government control over the doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions. Under this approach, for instance, it is up to Ohio's legislature to decide whether a Holocaust Memorial that includes the Star of David is appropriate. I do not want judges attempting to decide whether the Star of David in this case endorses or favors Judaism.

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Mark David Hall
on October 24, 2019 at 14:45:51 pm

Alas, Mark, we disagree on the original meaning of the EC. My research, the results of which are contained in my most recently published book, shows that both religion clauses were intended to deprive the national government of jurisdiction over religious matter, i.e., to prevent ALL laws characteristic of religious establishments, including laws that favor/endorse/promote one religion or religious belief/practice over others. Perhaps my interpretation is incorrect. I look forward to reading your book and examining the evidence you present to support your interpretation of the EC. Ellis

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Ellis West
on October 24, 2019 at 16:49:18 pm

I have tended to favor a more Lemon-esque view of the Establishment Clause. I have understood the purpose of the clause to be avoiding needless tribalism and lecturing on what to value. “Needless” means unrelated to a bona fide governmental purpose (or, in the language of Lemon, lacking a “secular purpose.”) Thus, I objected to PGA Tour, Inc. v. Martin on Establishment Clause grounds, because the Court was asked to rule on what aspects of the (arbitrary) rules of sport we should value--a question that is beyond the Court's jurisdiction.

The public square need not be denuded of religion. Rather, it should welcome the religious displays of those individual who come to the square (with any requisite permits issued in a content-neutral basis).

Civic friendship and prudence should inform decisions about the use of religious symbols today. America is far more diverse than it was 100 years ago, so it would be inappropriate for a government to erect a massive cross to honor U.S. military members from different faiths.

What does “inappropriate” mean? How does Hall arrive at this conclusion?

One might likewise conclude that civic friendship and prudence should have resulting in Garland receiving a hearing, or barred gerrymander districts for partisan advantage, or barred a Muslim ban. In short, I understand Hall to offer “civic friendship and prudence” as a vacuous consolation prize for losers. The Establishment Clause may be summarized as “Might makes right,” and Judeo-Christians have the might.

Snark aside, I think it behooves Hall’s argument to be a bit more forthcoming about the practical effect of his views. For better or worse, this interpretation of the Establishment Clause declares open season on minorities, and they should expect to get it good and hard—at least until they become the majority, when they can look forward to payback.

[T]he Establishment Clause prevents governments from creating establishments, and …this include things….

Then follows five examples of things that do not look like “creating establishments;” they look like government involvement with existing establishments.

(3) government financial support of the established church….

Government provides the land and the maintenance for this memorial cross, yes? If government were providing the land and the maintenance for a church building, I expect people would conclude that this violated the Establishment Clause.

(Or not? I wouldn’t be surprised to learn that government owns and maintains certain historical churches—Paul Revere’s Old North Church? The Alamo?—even though religious services continue to occur there. And I expect that there is a chapel on lots of government educational campuses. And perhaps military bases?)

Anyway, I’m not wowed by the argument of “If you don’t like paying taxes to prop up religious symbols that offend you, your remedy is to avert your eyes….” SCOTUS held that Obamacare represented a legitimate exercise of Congress’s taxing power, and that Hobby Lobby had the right to withhold its “tax dollars” based on religious considerations. Do only corporations exercise religious liberty now?

More generally, what does religion mean for purposes of the First Amendment? Government creates K-12 schools, compels impressionable youths to attend, and more or less tells them what to believe. Does that violate the Establishment Clause?

Finally, churches carry out PLENTY of civil functions. Most obviously, they marry people. Many churches run schools. And many (Catholic Charities) run adoption agencies. Are children the chattel property of their parents or of adoption agencies, such that they can, for example, be sold to the highest bidder—or does the awarding of custody reflect a civil function? I surmise you mean that churches cannot have a monopoly on any given civic function.

No simple answers where church and state are involved.

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nobody.really
on October 24, 2019 at 17:08:17 pm

I always value your scholarship, Ellis, even when we reach different conclusions.

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Mark David Hall
on October 24, 2019 at 18:05:49 pm

Yep, it would have been better WITHOUT the snark.

I read nothing in the essayists arguments that indicates that minorities would "get it good."

"Then follows five examples of things that do not look like “creating establishments;” they look like government involvement with EXISTING establishments.

(3) government financial support of the established church….

Government provides the land and the maintenance for this memorial cross, yes? If government were providing the land and the maintenance for a church building, I expect people would conclude that this violated the Establishment Clause. "
I also had a hard time deciphering this.
Could it be that the essayist, contrary to his assertions, has actually bought into the Courts "how Old ARE you/" doctrine. I guess if the monument, or in this case Church has been around a long whikle, it MUST be acceptable.
In only that sense would minority churches, being recently created / erected, would be susceptible to claims by the current Atheist groups.

Also, Absotively correct. There is not a military installation, VA hospital, etc that does not have a Chapel of some sort. How old are these "establishments?"

And yes again, Churches ought not as a matter of wither law or policy have a monopoly on civic functions. then again, neither should the Public School system?

Question for you, brudda?

Catholic Charities provides adoption services. YET, many in the Woke community seek to prevent this agency from performing this critical service because, - WELL because - they ARE Catholic and practice their faith which does not coincide with the au courant views of the Woke on sexuality, etc.

What is to be done? Are we to provide a monopoly on civic services to the SECULAR when we would not provide one to the sectarian.

So long as all are able to express some religious sensibility / remembrances for their own - what, pray tell is the problem?

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gabe
on October 24, 2019 at 21:30:22 pm

The Congress passed no law establishing religion in this case. No one was ever coerced to pray, read the Bible, go to church, etc. in all the years of the cross's existence. Merely having religious speech or expression on gov't property in and of itself doesn't logically constitute an establishment of religion. It would be inappropriate at this stage, but not unconstitutional.

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anony mous
on October 25, 2019 at 12:33:57 pm

...what, pray tell is the problem?

gabe, we're trying to have a serious discussion of constitutional issues. Must you bring up prayer?

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nobody.really
on October 25, 2019 at 16:09:07 pm

BTW:

How about this one? Perhaps, not only OLD ones can be accepted but also CERTAIN *new* ones wherein we find that a Christian student MAY be forced, by a public school to recite the Muslim conversion prayer without violating COTUS

https://www.foxnews.com/faith-values/supreme-court-rejects-case-of-christian-teen-forced-to-write-islamic-conversion-prayer

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gabe
on October 28, 2019 at 00:18:16 am

Of course, but the ff's didn't make this clear

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Oft
on October 28, 2019 at 13:19:46 pm

nobody.really: gabe, have you noticed a pattern in your reading habits? The people who write the stuff you read seem to be interested in fanning your sense of outrage, but don’t seem to be interested in helping you put the issues into a context that might aid your understanding and assuage your outrage. Honestly, it is far from clear that these people are your friends; they seem to be using you. Have you considered broadening your media diet?

gabe: How about this one? Perhaps, not only OLD ones can be accepted but also CERTAIN *new* ones wherein we find that a Christian student MAY be forced, by a public school to recite the Muslim conversion prayer without violating COTUS

https://www.foxnews.com/faith-values/supreme-court-rejects-case-of-christian-teen-forced-to-write-islamic-conversion-prayer

Here’s the Fourth Circuit opinion. Note p. 11, where the panel unanimously found, “The students were not required to memorize the shahada, TO RECITE IT, or even to write the complete statement of faith. Instead, the worksheet included a variety of factual information related to Islam and merely asked the students to demonstrate their understanding of the material by completing the partial sentences.” (Emphasis added.)

We have fun on this web page. But nation-wide, this is not a laughing matter. I would like to imagine that you would never break into a pizza parlor, guns blazing, to stop a factious child sex ring. But if you're willing to believe anything your choice of media tells you, I have to suspect that this restraint has simply been fortuitous.

What do you suppose will happen to a nation when people consume media not for its accuracy or relevance, but simply to get their buttons pushed? Like well-trained Pavovian dogs, people dutifully return to get their regular doses of adrenaline--and never take the slightest effort to verify what they have been told, because that would reduce the high they get from simply believing? Is this addiction healthy for democracy? Or even for the consumer?

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nobody.really
on October 28, 2019 at 17:55:47 pm

"...completing the partial sentences."

Oh boy, well that makes it OK, doesn't it?

What if a Muslim student were asked to complete the Roman Catholic "confiteor" (sp?) or some other profession of Christian faith.

One wonders how the able jurists would have ruled.

Of course, I could insist that if it is HISTORICAL Islam and its rather curious theology of the most radical voluntarism (for those of you from Chicago, that means) that allah is the ONE and ONLY CAUSE of EVERYTHING. that human agency does not exist, that allah, should HE (yep, those pesky MUSLIMS ain;t going for this feminine God that some would propose) have a whim can make Evil to be Good or Good to be Evil.
I mean if it is "education" that we are after, why not delve into the various Islamist theologies; or perhaps, why they are so retrograde in, well just about everything.

Yep, this must have been a Pavlovian response.

My point is that the Schools, a Public School at that, had NO business offering such lessons on religious doctrine, even if under the guise of history.
As i said if it were history they were after then delve into the intellectual predilections (failings) that Islam has demonstrated historically.

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gabe
on October 28, 2019 at 18:12:21 pm

Oops, again, my friend! Forgot this:

1) And yet, we find Courts consistently defending the *rights* of students to refuse to recite the Pledge of Allegiance BECAUSE said pledge employs the phrase "Under God".
Then again, since our Islamists friends view Allah as something quite different than the God of the West (see my comment on "voluntarism" above), I guess the shihada squeaks through on a technicality - one of those mysteries of life, as it were. - Ha!
2) Comes news in recent days that the Dearborn Public School system has switched to an "All Halal" Diet.
Gee, as one frustrated mother quipped, "The Schools have never changed diets to accommodate any religion."
Clearly, they did not switch to a Kosher Diet (not much difference between the two, anyway). So what if my kid loved the Pork and Beans they used to serve? Out of luck, I suppose.

Actually, nobody, my complaint is with the hypocrisy of the Progressives.
And my point still stands. It appears that some "NEW" religious sects are available for constitutional protection while the old ones are frowned upon by the "woke", the envious and the resentful.
Hypocrisy!

so yes, I do go Pavlovian when I encounter continuing hypocrisy - both in the Progressive activist and in Jurists.

Now, I am going to make a rather large Bacon - on - Bacon sandwich and slurp through the Pledge of Allegiance.

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gabe
on October 29, 2019 at 09:02:32 am

Isn't the issue really what Justice Thomas noted in his 2005 Texas state capitol concurrence, where he said that the “Clause’s text and history resist incorporation against the states.” Van Orden v. Perry, 545 U.S. 677, 693 (Thomas, J. concurring in judgment).

We ignore the clear meaning of "Congress shall make no law..." when we substitute Congress for any state actor.

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Kurt Brown
on October 29, 2019 at 10:03:27 am

"The students were not required to memorize the shahada, TO RECITE IT, or even to write the complete statement of faith. Instead, the worksheet included a variety of factual information related to Islam and merely asked the students to demonstrate their understanding of the material by completing the partial sentences.”

Soooo!

What is the difference between reciting and reading (especially if one "moves one's lips when reading -Ha!). Is this not a "silent" recital.
Presumably, in order to "complete" the "partial sentences" one MUST have read the whole thing.
How fine shall we split these Juridicial hairs in order to reach our preferred outcome?

Are similar *History* lessons on offer for Christianity or Judaism? One suspects not; and in the rare instances that such "lessons" may appear, one may be reasonably certain that they will be challenged.

As i said before, if it is History that is allegedly on offer, why not provide lessons on Islam by 'comparing and contrasting" the Mutazalite and Asharite Schools of Islamist theology. One may find this somewhat more instructive.

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gabe
on November 11, 2019 at 12:59:36 pm

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MccrayJuarez
on November 19, 2019 at 15:04:25 pm

[…] You can read the full article here. […]

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“How Old Does a Monument Need to Be?” — Prof. Mark David Hall in Law & Liberty | James Wilson Institute

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