History was critical to the Supreme Court’s decision in the Bladensburg cross case, so why did the court get so much wrong?

History was critical to the Supreme Court’s decision in the Bladensburg cross case, so why did the court get so much wrong? June 27, 2019

By Andrew L. Seidel
Director of Strategic Response/Constitutional Attorney
Freedom From Religion Foundation

History over principle.

That’s a fair summary of the Supreme Court’s decision last week to allow a 40-foot-tall Christian cross to remain on a public traffic circle in Bladensburg, Md. The fractured majority argued that the specific history of the cross — and the fact that it had been there for nearly a century — has magically transformed the pre-eminent symbol of Christianity into a secular symbol.

The court was not moved simply by the history of the cross itself (it’s been there for 100 years, we can’t get rid of it!), it also looked to U.S. history. But it wasn’t our complete history. And it wasn’t a fair reading. It was American history as rewritten from the perspective of Christian nationalism.

Justice Samuel Alito carefully curated a few moments from American history to justify his opinion. Taken as a whole, the intent of the revisionist history was clear: to make it seem like we are and have always been a Christian nation. This is precisely why I wrote The Founding Myth: Why Christian nationalism is Un-American. Historical myths are central to Christian nationalism’s hold on political power. Without historical support, many of its policy justifications crumble. Without its common well of myths, its identity will wither and fade. Its entire political and ideological reality is so weak and vulnerable because it is based on historical distortions and lies. The Founding Myth seeks to destroy the lies and half-truths that underlie this un-American political ideology. I wrote the book to head off Alito’s arguments and indeed all that is addressed below is tackled in The Founding Myth in greater depth.

Instead of looking to the First Amendment and the principle it represents — that the government must remain strictly neutral on matters of religion — Alito decided to take “a more modest approach that focuses on the particular issue at hand and looks to history for guidance.”

So let’s take a look at Alito’s history — most of which comes from section II-D of the opinion — to see how accurate it is.

1. Alito on the Ten Commandments: “For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our nation’s capital.”

The Ten Commandments are not the foundation of our legal system. It was sad to read this in a majority opinion issued by our Supreme Court, entrusted to enforce the United States’ godless, secular Constitution.

By the way, Alito fails to specify which version of the Ten Commandments was so historically significant to the founding of America. There are four different sets. This is a question Christian nationalists never answer. Most of the commandments conflict with core American principles. “I am the Lord your God” and “Have no other gods before me” violate the core constitutional principle of religious freedom. “Don’t take my name in vain” clearly violates the free speech clause of the First Amendment — as does the command not to make or worship images or idols. The punishment for violating that idol-worshipping command stands opposed to every American notion of justice — it punishes innocent children, “to the third and fourth generation,” if their parents exercise their constitutionally protected religious freedom. The Tenth Commandment’s ban on coveting hits a trifecta of condoning slavery, treating women as chattel, and criminalizing thought.

2. Alito on how “religion and morality” were mentioned in George Washington’s Farewell Address and the Northwest Ordinance: The First Congress “re-enacted the Northwest Territory Ordinance, which provided that ‘[r]eligion, morality, and knowledge, being necessary to good government…’ … President Washington echoed this sentiment in his Farewell Address, calling religion and morality ‘indispensable supports’ to ‘political prosperity.’”

George Washington and other Founders did not use religious principles when building our nation.

The Founders spoke of “religion and morality” as two separate entities. Morality was for those who had the time, education and personal libraries to delve into moral questions. Some of them considered that religion was for the masses, that religion was necessary for society to keep the “grazing multitude,” the “common persons,” in line.

And the Founders, not being the gods some pretend, were wrong on this point. Modern social sciences shows us that less religious societies score better on nearly every measure of well-being.

But this also means that the Founders, as the educated elite, did not need religion or religious principles to answer moral or philosophical questions. These invocations of “religion and morality” mean that the Founders, as the educated elite, did not turn to religion when it came time to craft our founding documents. These phrases actually disprove the point Alito is trying to make.

3. Alito on legislative prayer: “The prevalence of this philosophy at the time of the founding is reflected in other prominent actions taken by the First Congress. … The First Congress looked to these ‘supports’ when it chose to begin its sessions with a prayer.”

Alito’s statement is wrong. The First Congress did not look to any of the “supports” mentioned above in #2 when it chose to open with a prayer. The Supreme Court didn’t even look to those “supports” when it upheld paid prayer by Nebraska’s Senate in 1983. Alito is referencing these supports for the first time.

The Supreme Court is rightfully fond of citing James Madison, the Constitution’s principal architect. When it wrongly upheld legislative prayer, it had access to Madison’s Detached Memorandum, which condemns congressional chaplains and prayers, stating: “The establishment of the chaplainship to Congress is a palpable violation of equal rights, as well as of constitutional principles.” Madison was equally critical of “religious proclamations” by the government, calling them “shoots from the same root.” We’ll get to those in a second.

Yet the court ignored Madison’s legal opinion opposing chaplains, relegating it into a footnote on an unrelated sentence disposing of opposition to prayer at the Continental Congress. It’s not just that the court discounted Madison’s legal opinion, but that the justices selectively filtered Madison’s opinion, ignoring his legal analysis on government chaplains while citing his vote on, and passage of, a general appropriations bill that included chaplains. The bill approved chaplains, but was not about chaplains — it authorized salaries for government officials, including salaries for those voting on the bill. The justices cited this bill and Madison’s vote even though Madison specifically condemned the chaplaincy section, writing later that “it was not with my approbation, that the deviation from it took place in Congress when they appointed chaplains, to be paid from the national treasury.”

4. Washington’s day of thanksgiving: “the First Congress … requested — and President Washington proclaimed — a national day of prayer.”

Again, this is only part of the story. Jefferson and Madison, the latter no slouch on constitutional constraints (he’s known as the Father of the Constitution and the Father of the Bill of Rights for a reason), refused to issue day of prayer proclamations. Jefferson wrote eloquently of his refusal:

I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U.S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. … But it is only proposed that I should recommend, not prescribe a day of fasting & prayer. … I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting & prayer are religious exercises. …[C]ivil powers alone have been given to the President of the U.S. and no authority to direct the religious exercises of his constituents.

The government does not have the power to erect and maintain a 40-foot Latin cross any more than it does to tell its citizens to pray. Jefferson was right. Alito is wrong.

5. Alito on Martin Luther King, Jr.’s religiosity: “Many memorials for Dr. Martin Luther King, Jr., make reference to his faith. Take the Martin Luther King, Jr. Civil Rights Memorial Park in Seattle, which contains a sculpture in three segments representing ‘both the Christian Trinity and the union of the family.’ In Atlanta, the Ebenezer Baptist Church sits on the grounds of the Martin Luther King, Jr. National Historical Park.”

The referenced sculpture in this four-and-a-half acres memorial Seattle park is not a cross and whatever the dual intent, does not outwardly promote Christianity. There can be no comparison between this sculpture and the 40-foot-tall Bladensburg Christian cross. And sure, Martin Luther King Jr., a minister, was religious. So what? Even here, only half the story is told. MLK addressed his letter from the Birmingham Jail to white religious leaders who stood on the sidelines and “mouth pious irrelevancies and sanctimonious trivialities,” while he fought for civil rights. The day after he wrote it, Billy Graham mouthed a few more, arguing that King should “put the brakes on a little bit.” King also criticized the church for too often acting as a “taillight” on civil rights issues instead of a “headlight.” Finally, King was a strong supporter of the separation between religion and government.

The Supreme Court mucked up the case of the 40-foot cross. Instead of looking at the principles embodied in our secular Constitution, Alito looked to a whitewashed, cherry-picked history.

In the end, seven justices were afraid. They were afraid of ordering a cross to be removed. In oral argument, Alito asked “What message does that send when people see that on — on TV, they see crosses all over the country being knocked down? … What — what message is that? … That may promote a particular worldview, but is that — is that consistent with the Establishment Clause?”

That fear, in a nation with a church on practically every other street corner and with crosses dominating the landscape, is misplaced. Yet the majority of justices decided that curing a violation would violate the First Amendment because it would be “hostile” to religion. This aspect of the decision has alarming implications, least of all the fact that it seemingly overturns clear precedent the Supreme Court set in 1948. The court then wisely noted that “To hold that a state cannot, consistently with the First and 14th Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not . . . manifest a governmental hostility to religion or religious teachings.” This reasoning has been reaffirmed repeatedly from 1963 on: “It should be unnecessary to observe that [a curative] holding does not declare that the First Amendment manifests hostility to the practice or teaching of religion, but only applies prohibitions incorporated in the Bill of Rights in recognition of historic needs shared by church and state alike.”

If this court is willing to overturn such precedent — precedent without which the court cannot cure violations of the First Amendment without allegedly displaying “hostility” to religion — what else should we expect to lose?

There is one way we can fight back, and that is at least to correct the historical record. At the Freedom From Religion Foundation, we are committed to ensuring that no Christian nationalist lie or distortion ever goes uncorrected.


Andrew L. Seidel is the author of the new book, The Founding Myth: Why Christian Nationalism is Un-American. The Founding Myth seeks to destroy the lies and half-truths that underlie the un-American political ideology of Christian nationalism. Please reference the book for a fuller rebuttal of many of the assertions about history found in Alito’s ruling.

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