Stanley Fish has an astute analysis of last week’s Supreme Court decision in Salazar v. Buono.
By a 5-4 decision, the Court disagreed with a federal judge’s ruling that Congress promoted religion in a battle to prevent the removal of a 8-foot-high cross standing in Mojave National Preserve. The cross was erected in 1934 by the Veterans of Foreign Wars to commemorate American soldiers who had died in World War I. In 2002, a retired Park Service employee filed suit on the basis that the cross was an establishment of religion.
In order to keep the cross standing, Congress approved a swap, donating the cross and the land on which it stands to the VFW in exchange for another piece of property. The District Court ruled that the “the transfer was an attempt by the Government to keep the cross atop Sunrise Rock and so was invalid.”
But in order to sell their case that the religious symbol—in this case the symbol of Christ’s sacrifice and crucifixion on which Christianity is based—doesn’t violate the First Amendment Establishment Clause, government attorneys had to first deny the symbol has religious meaning. As Fish warns, it’s a dangerous game:
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.
These kinds of cases are always intractably messy because they essentially pit the First Amendment’s two clauses dedicated to religion against each other:
But that is what the religion clause drives you to when in one of its clauses—the free exercise clause—it singles out religion for special positive treatment, and in the other clause—the Establishment Clause—it places a warning label (watch out for this stuff; it’s trouble) on religion. It’s no wonder that the justices who try to deal with this schizophrenia tie themselves in knots and produce opinions that are as unedifying as they are disingenuous.
While I don’t necessarily agree with all his points, I kinda like the way Alan Shore on Boston Legal points it: