A cross memorial does not establish a state religion. The Supreme Court ruled this week that a large cross—a WWI memorial—located at the junction of three roads in Bladensburg, Md., does not violate the Constitution’s establishment clause and therefore does not have to be removed. Ilya Shapiro comments on the Court’s decision in American Legion v. American Humanist Association:
James Madison, arguably the most influential framer of the Constitution, strongly opposed state religion because colonial Virginia was teeming with religious persecution. Preachers were jailed for simply publishing their religious views, and the official state religion was integrated with many parts of the government. This had a profound effect on Madison. When he wrote his draft of the First Amendment, Madison envisioned the Establishment Clause as the culmination of his philosophy on religion and government, with liberty of conscience as the centerpiece. His purpose was to ensure that people could exercise their faith free from compulsion. The Establishment Clause, thus, was a shield to defend “individual liberty of conscience.”
As Justices Thomas and Gorsuch explain in their concurrences, the Court in future should return to the original public meaning of the Establishment Clause, which ensures liberty of conscience and protects people from truly “established” state religions that coerce belief and support. A non-coercive, harmless monument – a cross memorial, or a Star of David, or any other religious symbol – is not an establishment of religion. As seven justices correctly found here, tearing down an old war memorial instead establishes an anti-religious orthodoxy, with a mandate that religious symbols be eradicated from public life.
The Framers did not intend for that to happen, but maybe the fact that we’re fighting over things like this is a good indication that nobody in America is really trying to establish religion any more – compelling religious worship, on penalty of state law – that the danger to the freedom of conscience comes more from government mandates and regulations that infringe on the free exercise of systems of belief, religious and secular alike.
[Ilya Shapiro, “Of Course a Memorial Cross Doesn’t Establish Religion,” Cato Institute, June 20]
