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.This is the one thing BP and I really argue about (and in over 15 years, have never managed agreement). She insists that a cross is a sign of the dead, and not limited to Christian symbolism. I, a non-Christian, say that's not the case, and it is an overtly Christian symbol that excludes those who are not Christian.
Fish goes on,
Kennedy denies that the “emplacement” of the cross was accompanied by any intention “to promote a Christian message.” .... 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.”BP would agree with Kennedy. In a majority Christian culture, she points out that the cross has acquired secular meaning as well, particularly to honor war dead. Beneath those crosses, row on row, she argues that there are a lot of non-believers (and I'm sure she's right about that). But Fish argues that it is not a both/and, as BP argues, and instead he thinks it's a somewhat dishonest attempt at either/or:
It has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them....The game being played here by Kennedy (and many justices before him) is “let’s pretend.” Let’s pretend that a cross that, as Kennedy acknowledges, “has been a gathering place for Easter services since it was first put in place,” does not breathe Christianity. Let’s pretend that Congress, which in addition to engineering a land-swap for the purpose of keeping the cross in place attached a reversionary clause requiring that the “memorial” (no cross is mentioned) be kept as it is, did not have in mind the preservation of a religious symbol. Let’s pretend that after all these machinations a “reasonable observer” who knew all the facts would not see the government’s hand, but would only see the hands of private parties. (This is what I call the “look, ma, no hands” argument.) Let’s pretend that there will be many who, if the cross were removed, would think that the government had conveyed “disrespect for those the cross was seen as honoring.” ....
Yet, Fish points out that you can never really remove the Christian from the cross.
The trouble with pretending is that it involves a strain; keeping the pretense going is hard, and the truth being occluded often peeks through, as it does when Kennedy protests that the Establishment Clause “does not require eradication of all religious symbols in the public realm” and adds that “the Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”Either this particular cross is an overtly Christian symbol, or it is a transcendent symbol of the dead. You can't argue that it's simply a memorial and then say "besides, it's okay to acknowledge religion." Consistency, please! One or the other. And it's clear which one it is, in a dominantly Christian culture that considers its religious symbols generalizable to all. That's completely understandable, but sometimes I think that Christians don't realize how VERY Christian this country is and the myriad of little ways that non-Christians can feel left behind. So to speak. ;-)
But I thought that the cross was not, at least in this instance, a religious symbol and that the issue was not government acknowledging religion, but government honoring its dead. At moments like this, the mask slips and the plurality’s real concern — “to foster the display of the cross” (Stevens ) — is revealed for all (who had no doubt already spied it beneath the subterfuge) to see. The Christian and conservative Web sites that welcomed the decision as a blow for Christianity and against liberalism knew what they were looking at.
Now, I am mildly annoyed by the cross on Mt Soledad, which I see every day. Although they call it a "war memorial" it's called the Easter Cross on the maps, which underlies its purpose: a marker of Christianity. BP points out that if it were on a private church on that hilltop, it wouldn't annoy me, even if it were the exact same cross. What's the difference, she asks? But it's not on a church, it's on public land, I reply. (Technically they have sold a few square feet of the land to make it private, but that's clearly just a ruse). On a church, it would be a private display of faith, which I completely support as free speech even if I don't agree. On public land, it's still a display of faith, one that I'm at some level as a taxpaying citizen, forced to support. BP argues that there is a historical context to it, as the cross was erected in a time (30s) when the majority Christian view was more...dominent? generalizable? I'm not nearly annoyed enough to agree with lawsuits to remove it, which I consider just this side of frivolous, but as a principle of the thing, I understand the instinct.
I think it is interesting that the majority of Christians see the cross as a symbol that goes beyond Christianity where as most non-Christians see it only as a Christian symbol. My wife and I adore each other but we just cannot see a cross in the same way.