Could the United States put “In Jesus Christ We Trust” on its coins?
Justice Antonin Scalia asked the conservative lawyer Charles Cooper that question during an oral argument on November 6, 1991, in a high-profile Church-state case called Lee v. Weisman.
“I don’t think we would put that on the coins,” Cooper replied. “But I think that is because, at this stage, that would not be politically possible …”
That answer—which startled even Scalia then and is still startling today—is in the background of American Humanist Association v. American Legion, which will be argued in the high court on February 27. Formally at stake is the fate of a 40-foot-high concrete Latin cross, designated as a memorial to the local World War I dead, which sits on public land in the midst of a busy traffic circle in Prince George’s County, Maryland. The result may help resolve disputes over local memorials around the country. Beyond that, it will tell us a lot about the new conservative Supreme Court majority’s approach to the First Amendment’s establishment clause.
Cooper lost Lee v. Weisman in 1991, and the “Jesus on the money” answer surely didn’t help. He was representing a local school board that planned to open its graduation ceremonies with religious invocations by local clergy. The invocations were constitutional, Cooper told the Court, because students were not required to attend their graduation ceremony.
The Court held, 5–4, that a high-school graduation was not in fact a “voluntary” exercise, and that peer pressure would likely coerce some students into at least passively taking part in the government-sponsored and -endorsed prayer. That coercion, the opinion by Justice Anthony Kennedy said, violated the First Amendment’s ban on “an establishment of religion.”
Scalia dissented. Only official coercion—punishment or fine—would violate the establishment clause, he argued. The logical result of that test would seem to be—as Cooper had admitted to Justice Sandra Day O’Connor during the oral argument—that an American state could designate an official religion as long as it said “we’re not going to enforce it.” Scalia tempered his proposed rule by suggesting that government endorsement of religion was barred “where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).”
In the 28 years since Lee v. Weisman, shifting Court majorities have struggled in vain to come up with a clear constitutional “test” to apply to establishment cases. There is a standard test, from a case called Lemon v. Kurtzman: (1) Does the challenged practice have a “secular purpose”? (2) Is its “primary effect” neutral toward religion? And (3) Does it foster “excessive entanglement” between Church and state?
That test is beloved by nobody, but it has never quite been overruled, because another has never gathered five votes. Meanwhile, other justices have proposed their own.
O’Connor argued that government could not “endorse” religion in any way that “sends a message to nonadherents that they are outsiders, not full members of the political community.” This question is to be answered by asking what a “reasonable observer”—an imaginary creature who knows the history of the place and the practice—would conclude about the message sent by a display or ceremonial practice. The conservative justices often look toward Scalia’s notion—that “historic” religious practices could not be “establishments” as long as they weren’t “sectarian” and didn’t use legal coercion to make the public comply.
In two cases involving “passive displays,” Justice Stephen Breyer urged the Court to evaluate whether a given “display” referring to religion was placed in a “context” that created an impression of patriotic or nonreligious display, and whether it was new or had been in place for many years—which meant that a recent Ten Commandments plaque in a courthouse had to go, while a long-established one on the grounds of a state capitol could stay. In a 2014 case called Town of Greece v. Galloway, Kennedy wrote for a 5–4 majority that even explicitly sectarian prayers before a town-council meeting aren’t “coercive” as long as they don’t try hard to convert anybody.
We haven’t heard much about Jesus on the money lately. But old constitutional arguments never die. On February 27, the American Legion will ask the Court to revive Cooper’s proposed pure hard-edged “coercion” test.
The history of the Maryland Peace Cross illustrates the complex and highly individual history of public monuments and disputes over their meaning. Within a year after the end of World War I, a private group began to raise money and make plans for a memorial to the 49 Prince George’s residents who died in the fighting. After the local group’s fundraising stalled, the local American Legion post carried the project to completion in 1925. By 1961, the state had acquired the land, and has maintained the monument ever since. Meanwhile, civic groups funded other war memorials in that general area—commemorating Pearl Harbor, World War II, the War of 1812, the Battle of Bladensburg, and the Korean and Vietnam Wars. But the Peace Cross stands alone at the center of what has become a busy traffic circle just outside the nation’s capital.
When the Humanist Association sued on behalf of local members, the Fourth Circuit held that official maintenance of the cross was an “establishment of religion” and ordered it changed or removed. The Court granted review of that decision, and will almost certainly reverse it.
A lot is riding on its reasoning. If a cross-shaped war memorial is allowed, why is it constitutional? The answer will shape how courts around the country respond to monuments, official and “voluntary” public prayer, and other official and semiofficial manifestations of popular faith and belief.
The Maryland-National Capital Park and Planning Commission, also a defendant in the case, is represented by former acting Solicitor General Neal Kumar Katyal. Katyal is a reassuring, mainstream choice: He appeared before the Court last term to challenge the administration’s “travel ban” as a forbidden expression of “animus” toward Muslim immigrants and their families. In American Humanist Association, his brief argues that the Court should approve the monument because this particular cross has acquired the “secular” meaning of memorialization of war dead, and also “fits within a longstanding history or tradition of similar practices”—the use of crosses for military monuments and gravestones.
The United States, which as amicus curiae will also take part in the oral argument, supports the cross. Hardly surprising: The solicitor general himself, Noel Francisco, while in private practice, actually represented the American Legion in this case in lower court. He’s conflicted out of the case, and the government brief was written by acting Solicitor General Jeffrey Wall. It goes farther than Katyal’s: It argues that “passive displays”—like a government-maintained memorial cross—are permissible “because they typically do not compel religious belief; coerce support for, or participation in, any particular religion or its exercise; or represent an effort to proselytize or denigrate any particular faith.”
The American Legion, represented by the conservative lawyer Michael A. Carvin, filed by far the most radical brief. It asks the Court to scrap all existing establishment-clause jurisprudence and adopt a Cooper-style pure “coercion” test across the board. Nonbelievers may object to government religious speech, but their views are irrelevant: “By making a constitutional claim out of feelings of offense and exclusion, the endorsement test grants a heckler’s veto over speech supportive of religion that does not apply to any other form of government speech,” the brief argues. It’s a huge reach, and unlikely to attract five votes. But it will smoke out the attitudes of Justices Neil Gorsuch and Brett Kavanaugh, who haven’t yet been part of the Court’s religious wars. Both are expected to be solid votes for greater government latitude in establishment disputes. Barring the unlikely event—one hesitates to use the word miracle in this context—of a decision against the cross, the Court has a lot of paths through this litigation, and the question is how far the new majority wants to go. Regardless of the path it chooses, it is liable to provide a boost to conservative advocates of government-endorsed faith. In descending order of sweepingness, here are the major contenders:
• A number of conservative amici are urging the Court to hold that objectors to displays like the Peace Cross will no longer have “standing to sue” to block them, which would end most establishment cases before they begin.
• The legion’s pure “coercion” test would clear the deck for a wide variety of government practices—in public ceremonies, symbols, and prayers, and in other areas such as education—embodying majority beliefs.
• The solicitor general’s test would make public religious displays harder to challenge.
• The commission’s approach would, in essence, legitimize the display of crosses only in the war-memorial context.
Finally, two prominent constitutional lawyers, former Deputy Assistant Attorney General Martin Lederman and former acting Solicitor General Walter Dellinger, have filed a brief urging the Court to stay out of the doctrinal wars and approve only this cross, on the grounds that “it memorializes 49 former residents of Prince George’s County who were, in all likelihood, all Christians.” Thus, it would be a permissible memorial to those individuals alone—much the way a cross placed on the gravestone of an individual serviceperson represents that individual, not the nation as a whole.
The simplest solution might be to ask religious folk to keep their observances distinct from public ceremony and symbol, much the way James Madison sometimes suggested, to protect both the integrity of government and the purity of conscience. Such is not the law, however, and probably can’t be, simply because our nation has by now so much history of blending Christian symbolism with patriotic display. And given that history, every dispute in this area is agonizing.
Twenty years ago, fresh out of law school, I volunteered with a team of civil-liberties lawyers challenging a 50-foot “war memorial” cross that private parties had erected on the city skyline of Eugene, Oregon. During the early years of the 20th century, Eugene’s powerful Ku Klux Klan chapter had used that very site to terrorize the community by burning crosses against the sky. In the early 1960s, a private group had crossed without permission onto city park land to place a permanent cross in the same spot. When a state court ordered the cross taken down, the American Legion organized a referendum to designate it a “war memorial” and convinced the state judges that the majority’s approval made it okay.
A federal court at last ordered the cross removed. But on June 12, 1997, when the work crews arrived, they found a 50-year-old Vietnam War veteran waiting with a 12-gauge shotgun. “You ain’t taking this cross down today,” he said. Then he tied the shotgun in place, pointed at his own head, with his own hand taped to the pistol grip.
After three hours, the standoff ended, and the cross was taken to a perfectly visible new home on private land across town, where it stands today. The veteran turned out to be a former New Mexico deputy sheriff, disabled by a drunk driver, who had spent the previous few years providing services to veterans. No one involved in that day’s events doubted the sincerity of that old soldier’s pain. To him, the cross was a statement of respect for the sacrifice of lives of comrades he had known; to see it uprooted was so painful that he was willing to put his own life on the line in protest.
I’m glad to say that law enforcement was very careful to avoid provoking any violence that day. The protesting veteran was worthy of the community’s care, even though the law disagreed with his stand. But feelings on the other side are worthy of similar respect. For more than three decades, the cross engendered bitter feeling within a religiously diverse community. Raising my children in its shadow had left me feeling that neither their conscience nor mine were entirely safe in our new home.
These aren’t just hurt feelings; they are the promptings of conscience, which our constitutional order professes to hold sacred. For this reason, the legion’s approach—which belittles the conscience of religious minorities as mere “feelings of offense and exclusion”—would be a blot on our constitutional tradition, a step toward a future where, whatever is on the money, “majority religion” slowly but surely becomes “official religion.”