Debates on Crosses and Confederate Monuments Don’t Belong in Courts

(Bloomberg Opinion) -- One of the fiercest political flashpoints today is whether to take down old memorials that offend current sensibilities. The U.S. Supreme Court is now considering what to do about that very problem. The case involves a World War I memorial in the form of a 40-foot cross, not a statue of a Confederate soldier. There’s a constitutional dimension because of the potential for establishment of religion. But the issues are nevertheless very much similar.

Like the Confederate monuments being criticized or removed, the Latin cross in Bladensburg, Maryland — known as the “peace cross” — has stood in the same place for decades. Only in the past few years have advocates for the separation of church and state decided that the cross so offended their sensibilities that it was worth bringing a constitutional challenge. The American Humanist Association argued the case before the Supreme Court last week.

Their claim is not precisely that the cross symbolizes their oppression, as African-American opponents of Confederate war memorials have sometimes suggested. But the claim is related: The opponents of the cross say that its existence on public lands, a median strip where three roads converge, endorses Christianity in violation of separation of church and state. They claim that the government is substantively preferring one religion to others.

The key difference between the cross case and the Confederate war memorials is, of course, that the constitution specifically prohibits “the establishment of religion.” That enables the cross’ opponents to go to court to see their case adjudicated, instead of just arguing it in the court of public opinion.

From the standpoint of the justices who must decide the fate of the cross, however, the bottom line is remarkably similar. Should they consider the monument in the light of today’s beliefs and values? Or should they afford special weight to the fact that the memorial has been there since 1925 and has become part of the fabric of society?

In the past, the Supreme Court has struggled mightily with this problem and hasn’t found a satisfactory solution. The most recent precedent involved two public spaces where the Ten Commandments were displayed. In one case, the Ten Commandments were written on sheets of paper newly framed and installed in the hallways of a Kentucky courthouse. The court struck down that display by a vote of 5-4. In the other case, the Ten Commandments were inscribed in ancient Hebrew script on a large stone monument placed on the grounds of the Texas Capitol in Austin, where they had been since the release of Cecil B. DeMille’s film, “The Ten Commandments,” in 1956. In fact, the statue was originally placed there as promotion for the movie. The court, by a vote of 5-4, allowed the Texas statue to remain in place.

These two decisions, rendered on the same day in 2005, seemed inconsistent at the time to most observers. Remarkably, four justices thought that both forms of the Ten Commandments should be removed, and four justices thought that both should be allowed to remain. The difference in the two outcomes was Justice Stephen Breyer, who struck down the new courthouse display, and upheld the old Texas monument.

Breyer did not articulate a very clear distinction between the two. But he hinted that it matters that the Texas monument had been in place for many decades, whereas the courthouse display was brand new. Expanded into a broader theory, the distinction would rest on the idea that the court should have a different rule for long-established monuments than for new displays.

According to this theory, a reasonable observer might not think that an old display had been intended as an endorsement of religion, because cultural beliefs and values were different in the past. It might have been innocently believed at one time that the Ten Commandments were a universal statement of morality, or so goes the theory. Whereas today, in our more multicultural environment, it seems evident that a display of the Ten Commandments is meant to endorse Judeo-Christian beliefs, or perhaps religion generally over nonreligion.

In oral arguments before the Supreme Court in the peace cross case, Breyer suggested a version of this idea. The basis for applying the argument here would be that the cross was seen after World War I as a generic memorials symbol, even if today it is obviously identifiably Christian.

The problem with using Breyer’s theory is that we now have both a more nuanced understanding of the past and a more morally sharp understanding of the present. In the oral argument, Justice Ruth Bader Ginsburg noted that she had visited WWI cemeteries and observed individual graves marked with the Star of David.  Thus, she reasonably concluded, the cross was not purely a generic memorial symbol, even a century ago.

Ginsburg is, of course, correct. Her observation is similar to the argument made by opponents of Confederate memorials that many of them were erected not simply to commemorate Confederate dead but to buttress Jim Crow segregation. In other words, there was never a true neutral moment in the past. Memorials always have politics associated with them.

That brings us to the present, and our current moral judgments. To the cross opponents, what matter is not what people might have thought about it after WWI but what it means now. Its observers today would interpret it as Christian, so then they are harmed by the state’s endorsement of Christianity. They are, in other words, in a situation comparable to that of African-Americans and others who experience Confederate monuments as genuinely racist today.

What should the Supreme Court do? The truth is that the court, like the rest of society faced with potentially offensive historical monuments, can’t win. Taking down the monuments satisfies contemporary critics by alienating those who love tradition with all its warts. Leaving them up pleases traditionalists but allows genuine offense to persist, offense that often implicates the equality of all citizens.

Faced with such conflicts, the courts are poorly placed to decide such hard values choices. They are best made by democratic debate, not judicial fiat. Breyer may be correct but for the wrong reasons: It’s not that old monuments aren’t offensive. It’s that taking them down should be the job of towns and states, not the courts.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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