Saving religion by emptying its content

Fellow 17th century literary scholar, former postmodernist theorist, law professor, cultural commentator, and unconventional defender of religion Stanley Fish has this to say on the recent Supreme Court ruling allowing that Cross in the Mojave desert, as well as similar rulings permitting religious images in the public square. “When Is a Cross a Cross?” he asks.

Also, when is a menorah a menorah, and when is a crèche a crèche, and when are the Ten Commandments directives given to the Jews by God on Mt. Sinai? These questions, which might seem peculiar in the real world, are perfectly ordinary in the wild and wacky world of Establishment Clause jurisprudence, where in one case (Lynch v. Donnelly, 1984) the Supreme Court declared, with a straight judicial face, that a display featuring the baby Jesus, Mary, Joseph and the wise men conveyed a secular, not a religious message.

In the latest chapter of this odd project of saving religion by emptying it of its content, Justice Anthony Kennedy, writing for a plurality in Salazar v. Buono, ordered a district court to reconsider a ruling that Congress had impermissibly promoted religion by devising a plan designed to prevent the removal of a cross standing in the Mojave National Preserve. The cross had originally been erected in 1934 by the Veterans of Foreign Wars to commemorate American soldiers who had died in World War I. In 2002, Frank Buono, a retired Park Service employee, filed suit alleging a violation of the Establishment Clause and “sought an injunction requiring the government to remove the cross.”

In litigation unfolding in at least four stages, the District Court and the Appellate Court of the Ninth Circuit determined that “a reasonable observer would perceive a cross on federal land as governmental endorsement of religion.” In response, Congress took several actions, including designating the cross and the adjoining land a national memorial and transferring ownership of the land in question to the V.F.W. in exchange for land located elsewhere in the preserve. Turning again to the courts, Buono asked for an injunction against the transfer; the District Court granted it, concluding that “the transfer was an attempt by the Government to keep the cross atop Sunrise Rock and so was invalid.” The issue was Congress’s motive. The effect of what it had done was obvious: the cross now stood on private land, which meant, at least theoretically, that there was no longer an Establishment Clause violation because a private party, not the government, was speaking.

But the question remained: did the transfer “cure” the violation or did it, as Justice John Paul Stevens contended in dissent, extend and re-perform it? In a paroxysm of patriotism, Justice Anthony Kennedy has taken the Christianity out of the cross and turned it into an all-purpose means of marking secular achievements.

Now the fun and crazy stuff begins. Kennedy denies that the “emplacement” of the cross was accompanied by any intention “to promote a Christian message.” It was “intended simply to honor our Nation’s fallen soldiers.” (At oral argument Peter Eliasberg, an ACLU lawyer, observed, “There is never a cross on a tombstone of a Jew.”) Therefore, Kennedy reasoned, Congress had no “illicit” intention either; it merely sought a way to “accommodate” (a term of art in Establishment Clause jurisprudence) a “symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this Nation and its people.”

Notice what this paroxysm of patriotism had done: it has taken the Christianity out of the cross and turned it into an all-purpose means of marking secular achievements. (According to this reasoning the cross should mark the winning of championships in professional sports.)

It is one of the ironies of the sequence of cases dealing with religious symbols on public land that those who argue for their lawful presence must first deny them the significance that provokes the desire to put them there in the first place. It has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them, either by claiming for them a non-religious meaning as Kennedy does here, or, in the case of multiple symbols in a park or in front of a courthouse, by declaring that the fact of many of them means that no one of them is to be taken seriously; they don’t stand for anything sectarian; they stand for diversity.

So you save the symbols by leeching the life out of them. The operation is successful, but the patient is dead.

HT: FWS

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • kerner

    Usually, I generally agree with Fish’s primary point. We do a disservice to Christianity when we try to makes it acceptable to the general public by watering it down to the point it becomes unrecognisable.

    This time, however, I might agree with Justice Kennedy. Crosses ARE traditional grave markers, used to honor the dead. Military cemetaries display them. They are intended as a statement about the faith of the fallen, not a government mandate. I can’t imagine us going to, say, the cemetaries for the fallen in Normandy and tearing down all the grave markers.

    I also think I may disagree with Fish on the issue of access of multiple religious voices to the public square. A good example of what I mean just occurred in a Milwaukee suburb. The local public library has a display case used to display, among other things, artwork by students from local schools. When a local religious school took its turn, some of the students produced (big surprise) religious artwork. The librarian refused to post the display. This is a gross misunderstanding of the meaning of the 1st Amendment. It is crucial to distinguish between the government endorsing a religion and the government allowing the use of public facilities for the religious, along with the rest of the public, to have their say. This is particularly true when the public forum is small and the community is comparitively large such that the public has to take turns. And this is the definition of a public forum. It is a place set aside by the public for all members of the public (which includes the religious) to have their say. If the religious choose to use their access to a public forum to say something religious, this is by no means a government endorcement of what is said in public by the public. And it should come as no surprise.

  • kerner

    Usually, I generally agree with Fish’s primary point. We do a disservice to Christianity when we try to makes it acceptable to the general public by watering it down to the point it becomes unrecognisable.

    This time, however, I might agree with Justice Kennedy. Crosses ARE traditional grave markers, used to honor the dead. Military cemetaries display them. They are intended as a statement about the faith of the fallen, not a government mandate. I can’t imagine us going to, say, the cemetaries for the fallen in Normandy and tearing down all the grave markers.

    I also think I may disagree with Fish on the issue of access of multiple religious voices to the public square. A good example of what I mean just occurred in a Milwaukee suburb. The local public library has a display case used to display, among other things, artwork by students from local schools. When a local religious school took its turn, some of the students produced (big surprise) religious artwork. The librarian refused to post the display. This is a gross misunderstanding of the meaning of the 1st Amendment. It is crucial to distinguish between the government endorsing a religion and the government allowing the use of public facilities for the religious, along with the rest of the public, to have their say. This is particularly true when the public forum is small and the community is comparitively large such that the public has to take turns. And this is the definition of a public forum. It is a place set aside by the public for all members of the public (which includes the religious) to have their say. If the religious choose to use their access to a public forum to say something religious, this is by no means a government endorcement of what is said in public by the public. And it should come as no surprise.

  • CRB

    St. Paul said that the cross is foolishness to those who are perishing.
    If the Christ-haters carried their offense at religious symbols to its
    possible logical (?) conclusion, we might see power companies tearing down their poles to please the pagans among us!

  • CRB

    St. Paul said that the cross is foolishness to those who are perishing.
    If the Christ-haters carried their offense at religious symbols to its
    possible logical (?) conclusion, we might see power companies tearing down their poles to please the pagans among us!

  • http://mesamike.org Mike Westfall

    I have a problem with the whole idea that “Congress shall make no law…” has anything to do with anything other than congress making laws.

    But that’s just me. The Supreme Court is much wiser than me in divining the hidden emanations and penumbras within the meaning of clearly stated text.

  • http://mesamike.org Mike Westfall

    I have a problem with the whole idea that “Congress shall make no law…” has anything to do with anything other than congress making laws.

    But that’s just me. The Supreme Court is much wiser than me in divining the hidden emanations and penumbras within the meaning of clearly stated text.

  • http://www.redeemedrambling.blogspot.com/ John

    1. Kennedy is right. The use of a cross to mark a grave is only Christian in the blandest sense (witness the endless crosses in Arlington – all “Christians”? I doubt it).
    2. Nevertheless, the Cross is a radically subversive and thoroughly Christian symbol – to Christians.
    3. In the neverending quest to rid America of religion (instead of church – and there is a huge difference), must we determine the “meaning” of every last little symbol and trinket? There is a Buddhist garden near my home with gigantic iron swastikas wrought into the ironwork – what does that mean? Do the doric columns on the Lincoln memorial support Grecian pantheism? Am I allowed to were a stole in public? All this to say that the factthat we are even having these conversations is a bit tiresome.

  • http://www.redeemedrambling.blogspot.com/ John

    1. Kennedy is right. The use of a cross to mark a grave is only Christian in the blandest sense (witness the endless crosses in Arlington – all “Christians”? I doubt it).
    2. Nevertheless, the Cross is a radically subversive and thoroughly Christian symbol – to Christians.
    3. In the neverending quest to rid America of religion (instead of church – and there is a huge difference), must we determine the “meaning” of every last little symbol and trinket? There is a Buddhist garden near my home with gigantic iron swastikas wrought into the ironwork – what does that mean? Do the doric columns on the Lincoln memorial support Grecian pantheism? Am I allowed to were a stole in public? All this to say that the factthat we are even having these conversations is a bit tiresome.

  • http://www.toddstadler.com/ tODD

    Kerner (@1), you said, “Crosses ARE traditional grave markers, used to honor the dead. Military cemetaries display them. They are intended as a statement about the faith of the fallen, not a government mandate.” If that is so — and I agree — then it is also true that this giant cross was not, therefore, erected by the VFW to “commemorate American soldiers who had died in World War I” or “honor our Nation’s fallen soldiers”, but rather, to commemorate and honor only the Christian soldiers. Which was not what anyone has claimed.

  • http://www.toddstadler.com/ tODD

    Kerner (@1), you said, “Crosses ARE traditional grave markers, used to honor the dead. Military cemetaries display them. They are intended as a statement about the faith of the fallen, not a government mandate.” If that is so — and I agree — then it is also true that this giant cross was not, therefore, erected by the VFW to “commemorate American soldiers who had died in World War I” or “honor our Nation’s fallen soldiers”, but rather, to commemorate and honor only the Christian soldiers. Which was not what anyone has claimed.

  • DonS

    Kerner @ 1 hits the nail on the head. Even in our, imo, very overly broad reading of the Establishment Clause under current jurisprudence, it was unreasonable to construe the long ago erection of a cross honoring WWI dead as a governmental establishment of religion. As to your point, tODD @ 5, it is a valid one. Were we to erect that monument in the present day, particularly given the much more religiously pluralistic society in which we now live, we would probably do it very differently. At least the Star of David, and likely other appropriate symbols to specifically honor those non-Christians who died in service to our country might also be included. But, this is a historical marker. What makes us think that we need to go back, some 80 or 90 years later, and rip out old historical artifacts because, now, in the present hyper-sensitive age, they offend a few of us? That is historical revisionism of the worst kind, and for what purpose?

  • DonS

    Kerner @ 1 hits the nail on the head. Even in our, imo, very overly broad reading of the Establishment Clause under current jurisprudence, it was unreasonable to construe the long ago erection of a cross honoring WWI dead as a governmental establishment of religion. As to your point, tODD @ 5, it is a valid one. Were we to erect that monument in the present day, particularly given the much more religiously pluralistic society in which we now live, we would probably do it very differently. At least the Star of David, and likely other appropriate symbols to specifically honor those non-Christians who died in service to our country might also be included. But, this is a historical marker. What makes us think that we need to go back, some 80 or 90 years later, and rip out old historical artifacts because, now, in the present hyper-sensitive age, they offend a few of us? That is historical revisionism of the worst kind, and for what purpose?


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