What the decision in the Peace Cross case on religious symbolism portends is as yet unclear; but some interpretations would lead to perverse results.
Justice Gorsuch’s concurrence in the Bladensburg Cross case argued, correctly, that the dispute should have been dismissed for lack of standing. The American Humanist Association’s claim that its members were offended by the sight of a World War I memorial in the shape of a cross on public land did not, Gorsuch concluded, constitute a discrete harm. The shame is that there is no legal doctrine for dismissing a case for lack of maturity.
The atheist organization’s decision to make a federal case out of its purported offense at the very sight of a cross on public land suggests that its members are either snowflakes or zealots, fragile or fanatical. Or both. The case illustrates the increasingly imperialist nature of secularism, which for some is itself taking on the attributes of a faith. H.L. Mencken characterized puritanism as “the haunting fear that someone, somewhere, may be happy.” Today’s secularism is increasingly assuming a zealous character that cannot tolerate the haunting fear that someone, somewhere, may be devout.
This secular puritanism is evident not only in the Bladensburg Cross case but also in the legal harassment of believers in other contexts. Jack Phillips of Masterpiece Cakeshop fame, for example, faces yet another lawsuit from activists who appear to be cold-calling businesses not to purchase their goods or services but rather to dare them into refusing to provide them. In Town of Greece v. Galloway, secularists sued in an unsuccessful attempt to stop religious invocations at town council meetings despite heroic attempts to make the prayers pluralistic. Similarly, as the Bladensburg Cross shows, secular puritans are hostile to any public expression of religion, which is inherently hostile to a wide range of faiths that depend on publicity.
This zeal is every bit the match for the rising influence of the integralism of those who believe politics and religion only work if they officially and institutionally reinforce each other. Secularists are becoming every bit as evangelical and expansionary as the most fanatical believers. The logic in both cases that it is not enough to exist, a right that no one would deny to either atheists or believers. It is not even enough to be allowed to evangelize through persuasion. Instead, the ethic is “proliferate or perish.” The public square must consequently be colonized. Secularism cannot simply grow because it can be shown to be compelling. Politics—for secular as for religious integralists—must be placed in its service.
Legal commentary on the Bladensburg case has centered largely on legitimate debates over the viability of the Lemon test. But secular fanaticism is ultimately a political rather than a legal problem. That is true for two reasons. One is that a free society cannot consist of members who relentlessly haul petty disputes into court or even into the political realm rather than resolving them informally or, better yet, tolerating them maturely. That is a formula for illiberalism that imposes rules for everything.
The second is that a truly classical liberalism—one that assumes mores and norms that precede and fortify it (on which point see Richard Reinsch and Peter Lawler)—must preserve space for competing views of the good. Those goods that must be preserved include public expressions of belief, but they must also have the self-confidence to believe they can persuade without compulsion.
This tolerance of dispute is falling out of conservative fashion, partly because integralists say the public square is never truly neutral. This is probably accurate in the same sense that even well-meaning journalists cannot be entirely objective or that even conscientious judges cannot be perfectly impartial: The impossibility of perfection is taken to mean that one should not do one’s best.
A relatively neutral and classically liberal public square would permit both publicity and dispute. This is a far better option than the secular or religious integralism that says that because the public square is not wholly neutral, everyone should attempt its conquest: Fervor must be made to counteract fervor. This combination of Carl Schmitt’s politics as warfare with either secular or religious puritanism is particularly dangerous to ordered liberty.
Secularists have dismissed integralists as theocrats. What they miss is that they, too, are zealous advocates of the integration of personal (and public) belief with politics. Secularism is growing both intolerant and imperialist or, if one prefers, evangelical.
This secular puritanism is not entirely wrong to say exclusive sectarian displays should not be maintained at public expense. The particular history of the Bladensburg Cross—erected by private organizations as a memorial to World War I, for which the cross was a widely accepted symbol, then appropriated by the city for its preservation when the groups faded—makes for a bad case with which to test that principle. It is equally probable that even an exacting legal standard (see Lemon) is unlikely to capture the nuances involved in welcoming expressions of faith into the public square.
There is, however, a political if not a legal solution that seems to elude puritans of both religious and secular stripes: We could cultivate a citizenry disposed to reserve offense for occasions on which it is genuinely warranted and otherwise to behave charitably. We ought to demand a government that fairly navigates religious and secular concerns and that is open rather than hostile to views of the good, including their public expression. There are occasions for offense or at least concern: One can imagine, for example, a proposal to build an exclusively sectarian chapel (Catholic, Protestant, Jewish, Muslim, etc.) in a political facility like a capitol or town hall. While such an act may not directly offend, it confers government favor on a particular faith tradition.
But these are not the hard cases that test the durability of a liberal regime. The hard cases involve occasions in which we can rush to offense or assume others’ good motives; when we can tolerate disagreement or insist on imperialism. Secularists need not snuff the approach of tyranny in every expression of “Merry Christmas,” and Christians need not interpret the greeting “Happy Holidays” as a war on Christmas. Both need the self-confidence to believe they can flourish on their merits without a conquest of the political. These are political, not judicial, cases. They depend on the virtues of citizenship. Edward Shils called this civility. Secular puritans are not displaying it any more than their religious counterparts.