Earlier today, the American Humanist Association’s Monica Miller argued in front of the Supreme Court about how a giant Christian cross in Bladensburg, Maryland is an unconstitutional endorsement of Christianity by the government.
USA Today‘s Richard Wolf says that the justices may opt for middle ground here because they know crosses like these are unconstitutional, but they also don’t want to deal with the firestorm of taking this one down. Wolf said they may decide to “grandfather” in the Bladensburg Cross, allowing it to remain up because it’s been there for decades, while forbidding future crosses of the same nature.
Robert Barnes of the Washington Post also noted the justices were searching for a narrow answer that would allow this particular cross to remain in place.
The transcript of the oral arguments is now out. I’ll leave further analysis to sharper legal minds, but I loved these statements from Miller.
1) The Giant Cross is bad for Jews and Muslims and atheists and Christians alike
… the Commission is here arguing today, as well as the other Petitioners, that it is, you know, telling Jews, telling Muslims, telling humanists that the cross honors them, when they emphatically say it does not.
And it’s telling Christians that their most preeminent and — and sacred symbol of Jesus Christ actually, in fact, also symbolizes atheism.
As Humanists argued in their briefs, if the Supreme Court okays this monument by saying it’s not a uniquely Christian symbol but rather a generic one representing death, they’re basically saying when you see the cross, don’t think of Jesus. The devout Christians who treat the cross seriously would likely take offense to that.
2) Residents who are offended by the Giant Cross have legal standing to sue
… We’re talking about the government being the speaker and essentially giving you the message as the non-Christian in your community that you are a lesser citizen.
… here, all of the — all of the plaintiffs are individuals who are non-Christian, who say that when they encounter the government’s symbol saying, you know, that Christians have valor, Christians have courage, Christians have devotion, Christians have endurance, those words on the base, that says something to them.
Miller is really pushing for the judges not to reject this case based on “standing.” If being a local resident who has to see this eyesore regularly doesn’t give you standing to sue, then what would?
3) There’s no comparison between this Giant Cross and other (legal) memorials
In fact, on this record, I’m only aware of six other crosses, inclusive of Arlington, that are war memorial — World War I memorials on government land. The few others that their — that they cite are actually on private land. The ones in Baltimore, for instance, one has Jesus Christ written on it, so that says to us at the same time Bladensburg cross was being put up, other World War I memorials were being put up in direct recognition of Jesus Christ. That was the understanding at the time. These are Christian symbols.
Again, their — the government’s argument in this case is not that this is a Christian symbol anymore but that it, in fact, represents Jews and atheists and Muslims. And I think that there’s no history whatsoever of anyone using Latin crosses to honor Jews, Muslims, and atheists.
Bingo. The Cross represents Christianity, and it’s disingenuous for anyone to claim it’s a universal symbol of death for all people. It’s not. It never has been.
4) The Giant Cross crosses the line when it comes to acceptable instances of religion in government
… the Court was saying [in Greece v. Galloway, the invocation case] that when the government takes essentially a hands-off position with respect to the sectarian content of the prayers, you really — it’s not to say that it’s private speech, but the government isn’t being the mouthpiece for the sectarian message.
When the government is this — the mouthpiece, when it is 100 percent the government’s speech.
This is a distinction the other sides wants to muddy up. Religious invocations, when legal, are delivered by individuals, and everyone has the right to play the game. Crosses in Arlington National Cemetery are chosen by individuals. This Giant Cross is chosen and promoted and maintained entirely by the government. That’s why it’s illegal.
5) There’s a reason people don’t speak up against these symbols
With respect to history, there are a lot of reasons why religious minorities in — in Christian-dominated societies would not feel safe challenging an actively used war memorial that is the town’s most prominent symbol. You know, my clients have been threatened. I’ve received death threats. And I bet you it was not safer 90 years ago than it was — it is today.
This may be the strongest pushback against conservatives who claim these lawsuits should be ignored because the symbols, whether crosses or Ten Commandments monuments, have been up for decades without being subject to any legal fight. There’s a reason people don’t sue over them; they often fear for their lives. Christians will come after them.
6) Erecting a Giant Happy Humanist symbol would also be illegal
If the government decided to put up a giant happy humanist symbol, that’s our — it’s like this man with little hands. If they decided to replace the cross with the happy humanist, 40 feet tall, and they said this is the humanist monument, I think that would be a problem.
I’m just amused that symbol made it into an oral argument. But she’s right that an atheist or humanist symbol shouldn’t be promoted by the government either. Unlike conservative Christians, we want separation of religion and government even when it might benefit us.
7) Tearing down crosses might upset the FOX News crowd, but it may still be the right thing to do
… with respect to bulldozing, you say, 50 crosses, I mean, certainly, people will get the message that you can’t prefer Christianity. But this Court has always rejected the idea that restoring the government
to a place of neutrality is hostile to religion.
In fact, I think that argument cuts directly against their argument that says this isn’t a religious symbol. To say that it would be so hostile to religion, to move it to private land, to transfer the land underneath it, I think, really damages their argument…
This is a brilliant response. The argument was that tearing down other public crosses would look really bad to the general public. It would be seen as anti-Christian. But Miller argued that going from Christian supremacy to a place of religious neutrality isn’t anti-Christian at all. She’s right. Balancing the scale when it’s heavy on one side may upset certain people, but it doesn’t mean we should avoid righting the wrong. Furthermore, if removing a cross upsets Christians… then isn’t that just proof that the cross is a Christian symbol instead of some generic one? Checkmate, other side.
8) Moving the cross the private land is an ideal option for everyone
For one, with respect to moving it, we don’t have any statements that say — we — there’s one statement in the deposition that says it might be hard to move.
But we also have deposition testimony saying that the state has moved large historic houses, so we have a hard time imagining that a house is more difficult to move. There’s two World War I memorials that were in the center of medians.
I think that they’re ignoring the key problem that their own experts have — have warned them about, which is that the current location is causing its demise. And that’s why I say that I think our preferred remedy, which is moving it somewhere else, is the best situation for the cross.
It can be placed in a place where people don’t have to risk their lives to cross the street. They can actually come pay their respects. They can do so maybe a little bit more privately.
This is a sensible solution. Just move the structure to private land. It needs to be repaired anyway. It wouldn’t be any more complicated than moving other heavy worn-down structures.
Overall, there are multiple ways the Supreme Court can decide this case without doing long-term damage to church/state separation. For example, they could just call on this structure to move to private land. But to pretend this is anything but a Christian symbol would open the door to all kinds of religious endorsements of Christianity by the government. Miller wants the justices to avoid that slippery slope thinking, and their questions suggested they were open to that possibility. Let’s hope they say as much when they decide the case sometime this summer.