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New Court, Same Problem

by Kara Murray | Spring 2019

This article discusses the recurring constitutional issue of religious symbols on government property in a modern context.  With the upcoming American Legion v American Humanist Association Supreme Court ruling, this issue has been thrust back under the microscope. I argue that to maintain all citizens’ rights under the First Amendment, and to set a clear future precedent, the government should never permit religious symbols on public property.

2. Savage, David G. "Supreme Court Will Look at Whether a Cross Is Promotion of Religion or War Memorial." Los Angeles Times. February 26, 2019. Accessed March 25, 2019. https://www.latimes.com/politics/la-na-pol-supreme-court-cross-religion-kavanaugh-20190226-story.html.

3. Lynch, Mayor of Pawtucket, et al. v Donnelly et al., 465 US 668 (March 5, 1984).

5. McCreary County, Kentucky, et al. v American Civil Liberties Union of Kentucky, et al., 545 US 1 (June 27, 2005).

6. Mount, Steve. "The Lemon Test." The U.S. Constitution. January 24, 2010. Accessed March 25, 2019. https://www.usconstitution.net/lemon.html

7. "Establishment Clause." Legal Information Institute. June 03, 2017. Accessed March 25, 2019. https://www.law.cornell.edu/wex/establishment_clause.

9. "Free Exercise Clause." Legal Information Institute. June 03, 2017. Accessed March 25, 2019. https://www.law.cornell.edu/wex/free_exercise_clause.

The separation of church and state is a long-held American value for many.  Yet, there is a notable interconnection of religion with the American government: references to God appear on American currency, churches are tax exempt, and most importantly, the Supreme Court has never set a clear precedent regarding religious symbols on public property.  Varying interpretations of the First Amendment have caused this lack of a clear precedent.  The First Amendment of the Constitution includes the right to freedom of religion, typically divided into two clauses: the Establishment Clause, which prohibits the establishment of religion by Congress, and the Free Exercise Clause, which protects individuals from government interference in their practice of faith.[1] The government should not permit religious symbols to be displayed on government property because it violates these clauses.

 

This issue is now more relevant than ever, with the upcoming Supreme Court decision on American Legion v American Humanist Association, which will decide the fate of a 40 foot cross, built in 1925 as a memorial to World War I veterans that has been maintained by public funds on public property since the 1960s.[2]  American Legion v American Humanist Association is bound to be a close decision, similar to Supreme Court decisions on the subject in the past.  In 1984, for instance, the Court in Lynch v Donnelly upheld a Christmas display in a park in the main shopping district of Pawtucket, RI because of its inclusion of secular holiday images and because the city had sponsored it for forty years without incident.[3]  Another religious symbol was upheld in Van Orden v Perry in 2005, where a 6 foot monolith of the Ten Commandments on the grounds of the Texas State Capital was deemed constitutional for its secular purpose.[4]  However, on the same day, the Court ruled in McCreary County v ACLU that a display of the Ten Commandments was unconstitutional inside of a Kentucky courthouse.[5]

 

The difference between these contradictory rulings is significant.  How can the Ten Commandments be ruled secular is one location, but religious in another, on the same day?  Although the Lemon Test—originating from Lemon v Kurtzman—established criteria for determining if a religious symbol is constitutional based on whether it has secular purpose, whether  it advances religion, and whether it permits excessive entanglement of the government and religion,[6] the wording of the test is incredibly vague.  This has permitted the differing outcomes for cases that seem similar, such as the aforementioned ones.  It seems as though there is currently no clear way for the Supreme Court to determine the constitutionality of a religious symbol on government property, compelling a standardized precedent.

 

Regardless of the vagueness of the Lemon Test, religious symbols should not be permitted in government property because they violate the Establishment and Free Exercise Clauses of the Constitution.  The Establishment Clause explicitly prohibits government establishment of religion,[7] which is mostly interpreted as not allowing the government to fund certain religions.  But the government should also not be permitted to favor specific religions—including Christianity—by placing those religious symbols on government property.  According to a Pew Research Poll, 70.6% of the American public identifies as Christian.[8]  Although Christians constitute the majority religious belief in America, this does not permit the government to advertise Christianity by placing crosses, the Ten Commandments, or other religious symbols on public property.  Religious minorities and non-believers have the fundamental right to a government that respects their religious beliefs, or lack thereof, and placing a religious symbol on government property fundamentally violates that right.  All citizens should be held to the same standard, and it seems as though the government is implicitly biased by placing religious symbols on government property.

 

This is not to say that no religious symbols should be allowed in public.  Private businesses, homes, and churches all have the right to display religious symbols.  But, the government can not claim equality under the law, guaranteed by the Fourteenth Amendment, if they are displaying—and thus endorsing—religious symbols on public property.  Moreover, the government certainly should not be funding these symbols, as seen in American Legion v American Humanist Association.

 

The display of religious symbols on government property additionally involves the Free Exercise Clause.  This clause guarantees citizens the right to practice religion freely, without government interference.[9]  Religious displays infringe on this right by implicitly discouraging people of other religions from practicing their religion.  If the government seems to be favoring a certain religion, which is the message conveyed by displaying the symbol of a religion, religious minorities could be uncomfortable displaying differing beliefs.  The government should remain neutral on religion by not displaying these symbols on public property in order to show citizens of all religion that their beliefs are respected by the government.  The government has power over individual citizens, but it absolutely can not use that power to impose religion on citizens.

 

The Supreme Court needs to form a clear decision on the issue of religious symbols on government property in American Legion v American Humanist Association.  In order to uphold all Americans’ rights to free worship and not create a government establishment of religion, it is necessary that religious symbols not be allowed on government property.  Although potentially controversial, this is the only constitutional decision that upholds the First Amendment and creates a clear division that the Supreme Court can enforce in the future.  The current inefficiency and inconsistency on this topic is a detriment to American society, the Court should take this opportunity to remedy it.

REFERENCES

 

[1] "The 1st Amendment of the U.S. Constitution." National Constitution Center. Accessed March 25, 2019. https://constitutioncenter.org/interactive-constitution/amendments/amendment-i.

[2] Savage, David G. "Supreme Court Will Look at Whether a Cross Is Promotion of Religion or War Memorial." Los Angeles Times. February 26, 2019. Accessed March 25, 2019. https://www.latimes.com/politics/la-na-pol-supreme-court-cross-religion-kavanaugh-20190226-story.html.

[3] Lynch, Mayor of Pawtucket, et al. v Donnelly et al., 465 US 668 (March 5, 1984).

[4] Van Orden v. Perry, In His Official Capacity As Governor Of Texas And Chairman, State Preservation Board, et al., 545 US 1 (June 27, 2005).

[5] McCreary County, Kentucky, et al. v American Civil Liberties Union of Kentucky, et al., 545 US 1 (June 27, 2005).

[6] Mount, Steve. "The Lemon Test." The U.S. Constitution. January 24, 2010. Accessed March 25, 2019. https://www.usconstitution.net/lemon.html

[7] "Establishment Clause." Legal Information Institute. June 03, 2017. Accessed March 25, 2019. https://www.law.cornell.edu/wex/establishment_clause.

[8] "Religion in America: U.S. Religious Data, Demographics and Statistics." Pew Research Center's Religion & Public Life Project. May 11, 2015. Accessed March 25, 2019. https://www.pewforum.org/religious-landscape-study/.

[9] "Free Exercise Clause." Legal Information Institute. June 03, 2017. Accessed March 25, 2019. https://www.law.cornell.edu/wex/free_exercise_clause.

1. "The 1st Amendment of the U.S. Constitution." National Constitution Center. Accessed March 25, 2019. https://constitutioncenter.org/interactive-constitution/amendments/amendment-i.

4. Van Orden v. Perry, In His Official Capacity As Governor Of Texas And Chairman, State Preservation Board, et al., 545 US 1 (June 27, 2005).

8. "Religion in America: U.S. Religious Data, Demographics and Statistics." Pew Research Center's Religion & Public Life Project. May 11, 2015. Accessed March 25, 2019. https://www.pewforum.org/religious-landscape-study/.