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. The cross had originally been erected in 1934 by the Veterans of Foreign Wars to commemorate American soldiers who had died in World War I. In 2002, Frank Buono, a retired Park Service employee, filed suit alleging a violation of the Establishment Clause and “sought an injunction requiring the government to remove the cross.
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Notice what this paroxysm of patriotism had done: it has taken the Christianity out of the cross and turned it into an all-purpose means of marking secular achievements. (According to this reasoning the cross should mark the winning of championships in professional sports.) It is one of the ironies of the sequence of cases dealing with religious symbols on public land that those who argue for their lawful presence must first deny them the significance that provokes the desire to put them there in the first place.
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.
Fish makes clear that he does not oppose accommodation of religious symbols in public life, but the reasoning we use to reach that accommodation matters:
My distaste for Kennedy’s opinion has nothing to do with its result. In general, and for the record, I have no problem with the state accommodating religious symbols and I am not bothered by the thought of a cross standing in a remote part of the Mojave desert even if the land it stands on is owned by the government. I do have a problem with reasoning that is patently dishonest and protests too much about its own motives and the motives of those it defends. 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.
I am a big fan of the work of the Baptist Joint Committee for Religious Liberty in its ongoing efforts to ensure common sense balance between free exercise or accommodation of all religions and government non-establishment or favoring of a particular religion. Its Executive Director Brent Walker has said it well:
As I have said, both of these clauses in the First Amendment ensure religious liberty, but in different ways. The Establishment Clause keeps government from indirectly hurting your religion by helping somebody else’s religion and Free Exercise keeps government from harming your religion directly. Even though these provisions are complementary, sometimes—when taken to their logical conclusion—they rub up against the other clause.
This tension between the two clauses is good. If one assiduously enforces the Establishment Clause and forgets about free exercise, an environment of hostility to religion can result. However, if one concentrates only on the Free Exercise Clause and forgets about no establishment, the logical outcome can be a theocracy or something close to it. In either case, religious liberty would be diminished.
In short, it is important that we understand that government should accommodate religion, without advancing it; protect religion, without privileging it; sometimes lift burdens on the exercise of religion without extending religion an impermissible benefit.
Although U.S. constitutional law has come up with elaborate typologies to help us sort through this dilemma (mandatory, permissible and impermissible exemptions), I like to employ a common sense exercise. Every time we say “no” to government activity to uphold the Establishment Clause, we should find a way to say “yes” to its Free Exercise counterpart. This allows us always to try to find a “win-win” solution.
As with anything else in life, it is balance and preserving the healthy tension that leads to the best possible outcome. This is, in the end, the essence of the Governance Imperative: struggling with what is moral in right within a pre-erected structure or framework of fairness.
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