Column: Charles C. Haynes, Inside the First Amendment

Few church-state issues spark more argument in 21st century America than crosses, Ten Commandments and other religious symbols on public property.

Consider the current conflict in Whitefish, Mont., where hundreds of people rallied last week in support of keeping a statue of Jesus Christ on federal land in Flathead National Forest.

The Jesus statue, erected by veterans in 1955, is being challenged by the Freedom From Religion Foundation as a violation of the establishment clause of the First Amendment. What statue supporters see as a historic monument, opponents view as government endorsement of religion.

A similar fight is underway in Giles County, Va., where court filings earlier this month pit the Liberty Counsel against the ACLU in a battle over a Ten Commandments display in the local high school. Here again, what’s history to one side is state promotion of religion to the other.

Earlier this fall, the Supreme Court had an opportunity to clarify the convoluted guidance it has provided in past cases. (On one day alone in 2005, the high court struck down a Ten Commandments display in a Kentucky courthouse, but upheld a Ten Commandments monument in a park on Texas Statehouse grounds.)

But on Oct. 31, the Court ducked the issue when it declined to hear an appeal of a 10th U.S. Circuit Court of Appeals decision ordering the removal of roadside crosses honoring fallen Utah state troopers (Davenport v. American Atheists).

Although the 12-foot tall crosses were donated by a private group, they bear the Utah Highway Patrol official symbol and are mostly on public land. According to the 10th Circuit, a “reasonable observer” would conclude that “the state of Utah is endorsing Christianity.”

What will this mean for other roadside crosses on public land? Would removing the police insignia cure the First Amendment problem? Is it more or less of a constitutional issue if other religious symbols are also used? The Supreme Court won’t say.

Folks in Whitefish and Giles County who are determined to keep their religious symbols in public spaces are scrambling to prevail under current, murky Supreme Court establishment-clause jurisprudence.

Last week, Montana Republican Rep. Denny Rehberg announced that he would introduce legislation proposing a land swap between the National Forest System and Whitefish Mountain Resort, thereby putting the statue on private land. If it passes, Rehberg’s bill could end the debate since the Supreme Court recently upheld a similar arrangement (in Salazar v. Buono, 2010).

Meanwhile, Giles County school officials are hoping to save the Ten Commandments display by surrounding the commandments with a variety of historical documents. They are looking to the Supreme Court’s holiday-display decisions that allow government-sponsored holiday displays to include some religious symbols if the overall message is secular.

What’s remarkable about cases like these (and there are many) is how far some Americans will go to preserve religious symbols on public property — and how far others will go to see that all vestiges of religion are removed from the public square.

With true believers dug in on both sides, it’s not surprising that the Supreme Court struggles to find a balanced approach that keeps the government from taking sides in religion, but allows citizens to display their faith in public spaces.

One lesson of the conflict seems clear: In a diverse, divided and litigious America, one religious symbol no longer fits all. If it ever did.

 

Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C., 20001. Web: firstamendmentcenter.org. Email: chaynes@freedomforum.org.