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Supreme Court Decides Two Church-State Cases

by Paul Rasor, Center Director

After going five years without deciding a major religious freedom case, the U.S. Supreme Court made up for lost time by issuing opinions in two major cases in 2010.

Salazar v. Buono is the latest case involving a display of religious symbols on government property. In 1934, the Veterans of Foreign Wars erected an 8-foot white cross on federal land in the Mojave National Preserve as a tribute to American soldiers killed in World War I. In 2001, Frank Buono, a retired Park Service employee and a Roman Catholic, filed a suit in federal court, claiming that the cross constituted an unlawful establishment of religion. The lower court agreed and granted an injunction forbidding the government from displaying the cross. Meanwhile, Congress designated the cross as a national war memorial and directed the Secretary of the Interior to transfer the one-acre parcel containing the cross to the VFW. However, the lower court said this exchange would not cure the First Amendment violation.

A severely divided the Supreme Court reversed. In a plurality opinion written by Justice Kennedy and joined only by Chief Justice Roberts and by Justice Alito, the Court said that Congress acted properly when it designated the cross as a national war memorial. While the cross was "certainly a Christian symbol," Justice Kennedy wrote, it was not intended here "to promote a Christian message" or "to set the imprimatur of the state on a particular creed." In this context the cross "evokes far more than religion. It evokes the thousands of small crosses in foreign fields marking the graves of Americans who fell in battles."

In a strong dissent, Justice Stevens noted that the cross is a specifically Christian symbol, one that "conveys an inescapably sectarian message," and this does not change just because the cross is used as a memorial. Designating it as a war memorial "does not make the cross secular," Justice Stevens said, "it makes the war memorial sectarian." When Congress adopted the cross as a national symbol, it impermissibly endorsed religion in violation of the First Amendment. He added that while the nation is right to memorialize those who died in World War I, "it cannot lawfully do so by continued endorsement of a starkly sectarian message."

The Buono case continues the Court's unfortunate trend toward dismantling the metaphorical wall separating government and religion. Those who encourage the government to promote religion—nearly always their own version of Christianity—do themselves a disservice. To succeed under the legal framework of the First Amendment, they have to argue that the government is using their religious texts or symbols for a secular purpose. Yet this claim inherently devalues the meaning of those very symbols and it implicitly accepts the notion that the government may determine that meaning. Many religious groups oppose government use of their symbols precisely for this reason.

In Christian Legal Society v. Martinez, the Court ruled that public colleges and universities may require student groups to comply with an anti-discrimination "all-comers" policy. At Hastings College of Law in California, a student chapter of the Christian Legal Society (CLS) required its members to affirm their belief in certain orthodox Christian doctrines and excluded gay and lesbian students. These requirements violated Hastings' nondiscrimination policy and the school denied recognition. CLS then sued, alleging that the college violated its constitutional rights of free speech, freedom of association, and free exercise of religion. The lower federal courts ruled against CLS, and the Supreme Court affirmed by a 5-4 vote.

In her majority opinion, Justice Ginsburg said the all-comers policy was "a reasonable viewpoint-neutral condition" that applied to all student groups and that Hastings did not violate CLS's constitutional rights by denying it an exemption. "The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be," Justice Ginsburg wrote, "but CLS enjoys no constitutional right to state subvention of its selectivity." In dissent, Justice Alito argued that Hastings' policy violated CLS's right to expressive association by forcing it to admit members who did not share its core values.

In CLS, the relevant constitutional principles seem to pull in opposite directions. On the one hand, freedom of association is one of our most fundamental rights. Student groups understandably want members who share a common interest and support their views. On the other, nondiscrimination and equality are foundational principles in American society, and antidiscrimination laws protect individuals from being excluded based on characteristics such as race, gender, religion, disability, or sexual orientation. Enforcing antidiscrimination laws can interfere with group autonomy, yet not enforcing them undermines our basic commitment to equality. It is not always easy to tell where to draw the line, and results may differ depending on the particular context. In the CLF case, the Court said Hastings was within its prerogatives to draw the line where it did.

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