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Toledo Legal News - Editorial List Table

 

When is a religious symbol not a religious symbol?

 

Can a Latin cross ever be anything other than a symbol of the crucifixion and resurrection of Jesus? Can religious symbols or practices — Christian, Hindu, Native American or other — take on other meanings?

In the “Peace Cross Case” — American Legion v. American Humanist Association — the U.S. Supreme Court was presented with the question of whether it was constitutional for a 32-foot cross, maintained by taxpayer dollars, to remain on Maryland state property, where it has been since 1925.

Justice Samuel Alito, a Roman Catholic, wrote: “The cross came into widespread use as a symbol of Christianity by the fourth century and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular.”

Perhaps the most important question raised by the ruling: Are courts or government agencies competent to adjudicate what is religious and what is not?

I think not. But the more we include religion in government-funded, public spaces, the more that courts and government agencies will be asked to determine the meaning and significance of religious symbols and practices.

Let’s go back to the Peace Cross Case. The cross in question was completed by the American Legion in 1925 to honor fallen soldiers from Bladensburg, Md., during World War I. A Roman Catholic priest and a Baptist pastor took part in the dedication ceremony and U.S. Rep. Stephen W. Gambrill asked attendees to think of the cross as “symbolic of Calvary.”

What did the court say? The cross can stay. It does not violate the Establishment Clause. Why? Justice Alito — writing the majority opinion and joined by Chief Justice Roberts and justices Breyer, Kagan and Kavanaugh — explained that though the cross is certainly religious for some folks, “With sufficient time, religiously expressive monuments, symbols and practices can become embedded features of a community’s landscape and identity. The community may come to value them without necessarily embracing their religious roots.”

Perhaps this ruling, and the court’s reasoning, should not surprise us. After all, 25 years ago, in the majority opinion in Lynch v. Donnelly, the U.S. Supreme Court repeatedly referred to wreaths, garlands, reindeer, carolers and even Santa Claus as “secular images” and “secular figures.” Tell that to the Christian carolers singing “O Come, O Come Emmanuel.” Or to Saint Nicholas of Myra.

The upshot? If religious communities want to spare themselves the pain of having a court say that a Latin cross or Santa are not primarily religious symbols for some people in some circumstances, then religious communities should reconsider whether it is in their best interest to ask governments to play a role in creating or maintaining religious symbols or practices in the public square.

Ultimately this is about what we want our government saying about religion. History tells us that individuals and communities ascribe new meanings to religious symbols and even religious ritual practices, in different times and places. The American Academy of Religion — the world’s largest and most respected professional association for scholars who study religion — affirms that a central premise of the study of religion is that religious interpretations and expressions change over time as they influence and are influenced by culture. But should we ask the government in a religiously diverse democracy to dictate how society should understand specific religious symbols or practices?

To be fair to courts, deciding whether a symbol or practice is religious, secular or both can be an incredibly difficult task that vexes even the most savvy theologians and religious studies scholars. It is precisely because answers to questions of definition and classification are so nuanced — and so important — that we should avoid putting the government in a position to make the call whenever possible.

Take yoga as a reminder of what is at stake. The type of yoga practiced today by tens of millions of Americans in the United States is often considered a secular physical activity that promotes mindfulness. Yet it has its origins in a Hindu religious practice. In 2015, the Court of Appeal for the Fourth Appellate District in California was asked to decide whether a yoga program in a physical education class is a religious activity that violates the California Constitution’s ban on the establishment of religion. Its answer: no. You might agree with the decision. But have you contemplated its effect on the religious identities of the Hindu Americans who started a Take Back Yoga campaign in 2010 because they mourned the fact that “Hinduism has lost control of [yoga’s] brand?”

Or take lacrosse. I would guess that fewer Americans recognize the connection — historic and contemporary — between the stick-and-ball sport and religion. Yet members of the Haudenosaunee, including the Onondaga Nation, consider the game to be sacred. From the Onondaga Nation website: “It is a game that was given by the Creator, to be played for the Creator, and has been known to have healing power.” What pain do we inflict on Haudenosaunee communities when we ignore the religious significance of the game while playing it in our public schools?

I do not mean to suggest it is easy to determine the extent to which yoga and lacrosse are religious — and by extension whether they should be allowed in public schools. But I know that when courts and government agencies decide that yoga and lacrosse are not entirely religious, they can compound the pain of religious communities that already consider themselves marginalized.

Back to Bladensburg. The Supreme Court affirmed the religious significance of the Latin cross, but they also suggested that the cross might be understood as both a religious and secular symbol in certain contexts. That should give pause to those Christians who feel sidelined by secularism but support governmental ownership and upkeep of the Peace Cross.

In the aftermath of the case, Harvey Weiner, the national judge advocate of the Jewish War Veterans of the United States Inc., lamented the suggestion that the Peace Cross is not primarily a symbol of Christ: “Alas, to Christians, that a war memorial Latin cross has significant meanings other than being the ultimate symbol of Christianity.”

So next time you want the government to support a religious practice or display your most cherished religious symbol, consider whether you are willing to have the government later say that those symbols or practices are not entirely religious after all.

Benjamin P. Marcus is religious literacy specialist at the Religious Freedom Center of the Freedom Forum Institute. His email address is: bmarcus@freedomforum.org.

Benjamin Marcus, Freedom Forum Institute

Getting Congress back on track

 

The other day, someone I’ve known for years offered a pointed bit of criticism. “It’s easy for people like you to make long lists of things Congress should do to improve,” he said. “But you know good and well most of them won’t happen. So if you’re really serious, what’s the one most important thing it could do? What does Congress absolutely need to start getting itself back on track?”

He was right. “People like me” — that is, people who comment publicly about all the things Congress gets wrong — often have long laundry lists of fixes, from wringing the influence of special-interest money out of the system to members of different parties spending more time together. But the most important fix? That takes some thinking.

I’ve spent some time on it and have my answer. But you’re not going to like it. What’s critically important for Congress to do? Return to the regular order.

I know, even a lot of wonks don’t know what that means. That’s because it’s a little hard to define precisely. Drawing on the work of congressional scholars Tom Mann and Norm Ornstein, you could think of the regular order as the rules, precedents and norms that have evolved over congressional history to make sure that it treats its members fairly in the course of its work and that it plays its proper role in our scheme of government.

In part, this is about process. You may think of committee hearings, expert testimony, and a fair debate and amendments process as eye-glazing details, but they evolved for a reason: They’re how Congress ensured that a diversity of voices got heard, members got the benefit of the best thinking in the country on difficult issues, and even rank-and-file members had a chance to shape policy.

I put those in the past tense because, of course, mostly they no longer happen. Instead, Congress has gotten into some distressing habits — omnibus bills, weakened committees (especially in the budget process), amendment-free legislating — which all add up to a curtailed process dominated by the leadership. It has limited floor debate, tends to bypass ordinary members, and gives disproportionate influence to big donors and lobbyists. It often sidesteps dealing with tough issues. And it’s not unusual for important legislative provisions to be added at the last minute by powerful members without discussion or debate.

The result is the diminished, unproductive Congress we now see. Deliberation, openness, the give-and-take of a free society, the process of consulting with experts and those who might be affected by legislation, a Congress that squarely addresses the tough questions that need to be answered if we’re to move forward as a society — all have fallen victim to Congress’s abandonment of the regular order. And largely because of this, Congress no longer plays the role that our founders envisioned and our diverse, complex society needs.

Now, I don’t want to give the impression that the regular order is flawless. Any process will have its problems, and even when it was observed, the regular order still put too much power in the hands of too few people.

But it was far better than the ad hoc, unpredictable, and often dysfunctional process we see now. Because once the regular order breaks down, democracy-defying habits like omnibus bills, sleight-of-hand legislating, and powerful leadership teams take hold.

And the result isn’t just an institution that no longer represents the American people. It’s also a bad product: legislation that isn’t vetted, doesn’t reflect a consensus among members, and often reveals itself to be unsustainable once it meets the real world.

In short, if you’ve got a bad process, you’re likely to create a bad result. A good process doesn’t ensure good results, but it definitely boosts the chances of getting to one.

We have two centuries of experience on Capitol Hill that have taught us how to run a legislature so that the voices of the American people can be reflected in the halls of power, multiple viewpoints get fair and respectful consideration, and ordinary legislators have a fair shot at influencing the results. Until we get back to that, no amount of tinkering with Congress will add up to much.

The Center on Representative Government is a non-partisan educational institution that develops and provides materials on civics and government at no-cost to students and educators.

Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar at the IU Hamilton Lugar School of Global and International Studies; and a Professor of Practice at the IU O’Neill School of Public and Environmental Affairs. He was a member of the U.S. House of Representatives for 34 years.

Lee Hamilton, Center on Representative Government

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