This article first appeared on Slate.com.
By Andrew L. Seidel
he Supreme Court on June 20 decided to allow a 40-foot tall, government-maintained cross to remain prominently displayed on a city traffic island. In ruling to let Maryland’s “Bladensburg Peace Cross” remain in place, the court argued that long-standing religious monuments have “secular meaning” and that curing old First Amendment violations would show “hostility toward religion.” Until now, the Supreme Court had repeatedly rejected that second line of argument, going all the way back to its first state-church decision.
The hostility argument seems to demonstrate a severe persecution complex on the part of Justice Samuel Alito, who wrote the majority opinion. It simultaneously assumes that the cross does violate the core First Amendment principle that the government should remain neutral when it comes to religion but that a free pass is warranted for old (read: Christian) symbols.
The backwardness of the logic at work is clear: If removing the cross is hostile to religion, then displaying the cross promotes religion — it is not neutral and should be found to violate the Establishment Clause.
The hostility argument also assumes that the only fix for the violation would have been to essentially bulldoze the cross. In reality, moving the cross to church property would have fixed the constitutional violation and saved the cross.
In an ideal world, a court refusing to cure discrimination because the remedy is hostile to the oppressor should be unimaginable. Unfortunately, the Supreme Court has made many such decisions over the centuries, including last term in the Masterpiece Cakeshop case.
In that case, the court held that Colorado showed religious animus to a Christian baker who did not want to make wedding cakes for gay couples.
Days later, the court refused to apply that same hostility standard to Trump’s travel ban, despite stronger evidence that it was motivated by anti-Muslim sentiment. The double standard is transparent.
Twice in the past two terms, the court has relied on dubious or self-defeating claims of hostility to elevate Christianity — and only Christianity — above the law, and only in ways that favor Christians.
In the cross case, Alito went so far as to write that upholding the First Amendment was akin to the French Reign of Terror: “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past.”
Of course, the prohibition against state-sanctioned persecution of religion does not mean that the state can actively promote religion. The founders of this nation laid out a middle path, where the state does not harass or assist religion. They did so for a number of reasons, including to ensure individual religious liberty, because there is no freedom of religion without a government that is free from religion.
“Scrubbing,” “militant … regimes,” and “aggressively hostile” read like fearmongering, but perhaps Alito is truly afraid of a tyrannical majority using the government to impose anti-religion zeal on religious citizens.
We have a safety net against such fears, though.
It’s the plain legal principle of religious neutrality, which the justices set aside in favor of unconvincing “hostility” and history arguments. Alito’s repeated and troubling invocations of “community” and “community standards” mean little more than this: that a majority of the community can decide to violate the Constitution and the courts cannot correct that majority. This undermines the very purpose of the Bill of Rights — to protect the minority from the tyranny of the majority.
But the most alarming aspect of Alito’s hostility argument is that it solidifies that privilege of the current majority in perpetuity. He recognized that demographics in the country are shifting rapidly away from Christianity, which is fast losing its majority.
Alito’s opinion laid out a road map to preserve these monuments to Christianity’s cultural dominance and privilege: “As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage.”
The subtext is clear: As Christians lose their majority and their privilege, they are in a better position to claim persecution and hostility when that privilege erodes, which will allow them to preserve that privilege, even if it violates the Constitution.
In the end, the court painted America’s Christian majority as persecuted and quailing under the hostility of the First Amendment.
Andrew L. Seidel is FFRF’s director of strategic response and a constitutional lawyer.