LIFT HIGH THE CROSS?
CONTRASTING THE NEW EUROPEAN AND AMERICAN CASES ON RELIGIOUS SYMBOLS ON GOVERNMENT PROPERTY
Abstract
A comparative anthropologist could not have asked for a better script: two high profile cases, one before the European Court of Human Rights, the other before the U.S. Supreme court, each involving challenges to traditional displays of crosses on government property. The European high court struck down the cross. The American high court up-held the cross. Both cases are procedurally complicated and are factually distinguishable. But the juxtaposition of these decisions illustrates the growing contrast in European and American attitudes toward traditional religious symbols on government land and toward religious freedom more generally. Europe, as the heartland of Christianity for nearly two millennia, seems to be moving towards ever-stronger policies of secularization and laicite. America, once the champion of strict separation of church and state, seems to be moving toward an ever more generous accommodation of its religious traditions and symbols.
In Lautsi v. Italy, a mother of two children who attended an Italian public school challenged an Italian tradition going back to 1924 that called for the display of a crucifix in each public school classroom. The perennial and prominent presence of these overtly Christian symbols, Lautsi argued, was contrary to the atheistic beliefs with which she wanted to raise and educate her children. She thus sought to have the crucifixes removed. She won her case in the Italian trial court. She lost before the Italian domestic courts, which declared that the cross was an integral part of Italy's history, culture, and identity, and that the cross was itself a symbol of the nation's distinct commitment to liberty, pluralism, and toleration of all peaceable faiths. Lautsi then appealed to the European Court of Human Rights, arguing that Italy's actions violated her and her children's rights to education and to religious freedom guaranteed by the European Convention on Human Rights in Article 2 (of Protocol Number 1) and Article 9.
On November 3, 2009, a unanimous seven-judge chamber of the European Court of Human Rights held for Lautsi.9 The Court found that the public display of crucifixes in public school classrooms constituted a violation both of the right of parents to educate their children in conformity with their own convictions and of the right of children to freedom of thought, conscience, and religion, which included the right to be free from coerced religious participation or observance.10 The Court ordered damages to Lautsi of €5000.11Italy appealed, dismayed at what it took to be an assault on its national culture and tradition.
On June 30, 2010, the Grand Chamber of the European Court of Human Rights heard further arguments in the case.13 At least twenty European nations publicly stated their support for Italy and joined its criticism of the European Court's first chamber decision. The Lautsi case was taken under advisement by the Grand Chamber, which was subject to intense lobbying pressure on both sides.
On March 18, 2011, just as this Article was going to final press, the Grand Chamber of the European Court of Human Rights reversed the Chamber below, and held fifteen to two in favor of Italy, halting at least for now the steady march toward increasing secularization and laicite. 15 While this Article retains our analysis of the original Chamber judgment against the backdrop of earlier European Court cases, we reflect on the significance of the Grand Chamber's judgment in the Conclusion and show the growing convergence with recent U.S. Supreme Court case law.
In Salazar v. Buono,16 a retired national park worker challenged the display of a cross in a national park in the State of California.17 The Veterans of Foreign Wars (“VFW”), a private group, had donated and erected the cross in 1934 as a memorial to fallen American soldiers.18 The cross stood alone, visible on the horizon.19 A small sign at the base of the cross indicated that the VFW had donated it.20 Buono brought suit claiming that the presence of the cross on government land constituted an establishment of religion in violation of the First Amendment to the U.S. Constitution.21 A federal district court found the cross display to be unconstitutional.22 Congress responded by conveying a small parcel of the federal land with and around the cross to the VFW, in exchange for a nearby private tract of land that was added to the national park. The district court declared this purported Constitutional cure a “sham,” and repeated its injunction that the cross be removed. The national park service appealed, ultimately to the Supreme Court.
A plurality of the Supreme Court ordered that the cross be retained.26 The decision to enjoin Congress's land sale, Justice Kennedy wrote for the plurality, required the district court to undertake a separate Constitutional inquiry of whether Congress had violated the First Amendment Establishment Clause; it could not simply assume that this land sale was a “sham” designed to “evade” the first injunction.27 Congress had tried to resolve a “dilemma” created by the district court: “It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those [dead soldiers] the cross was seen as honoring. Deeming neither alternative to be satisfactory,” Congress had instead sold the land and cross to a private party The district court now would have to judge the Constitutionality of Congress's actions on the merits. In Justice Kennedy's view, the district court would have to take into account the reality that, while the cross was “certainly a Christian symbol,” it had been erected in the park not “to promote a Christian message” or to “set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation's fallen soldiers.” The district court would further have to recognize that “[t]ime also has played its role” and that “the cross and the cause it commemorated had become entwined in the public conscious-ness” and part of “our national heritage.”
The contrasts in these cases are as ironic as they are striking. It is no small irony that Italy, a land saturated with Christian religious symbols, was ordered to remove its crosses, while California, famous for its Hollywood-style secularism and avant-garde culture, may keep a cross in place. It is no small irony that, after so many centuries of cultural adaptation and application, a cross in Italy was still judged to be an offensive religious symbol, while in America, after a few short decades, a memorial cross was judged to be so deeply woven into American “public consciousness” and “national heritage” that it could no longer be removed. And it is no small irony that the European Court, operating without an explicit prohibition on religious establishments, struck down the cross, while the U.S. Supreme Court, armed with an explicit Constitutional command that “Congress shall make no law respecting an establishment of religion,”33 let the cross stand on land that Congress controlled.
What is not so ironic or surprising is that the Lautsi court took this firm stand against the public display of a cross in a public school setting. Young and impressionable students, often compelled to be in school, are generally more vulnerable to religious pressure and coercion, and western courts have thus long been zealous in protecting them in the name of religious freedom. Indeed, in six decades of cases before Salazar, the U.S. Supreme Court had struck down the use of religious symbols in public schools, along with prayers, Bible reading, and religious instruction.34 A number of European nations besides Italy have done the same.This might suggest that, with Lautsi, European and American laws of religious freedom are actually moving closer together rather than further apart. And it might further suggest that the Lautsi case, despite its strong language of secularity and laicite, may be restricted in its application to public schools, rather than becoming a step on the slippery slope toward the greater secularization of Europe that some critics fear. After all, despite the sweeping Constitutional logic of strict separation of church and state36 at work in many of its religion and public school cases, the U.S. Supreme Court has rarely used these cases as precedents to strike down overt religious expression, free exercise accommodations, and church-state cooperation in other areas of public life.37 Particularly in recent years, the Supreme Court, flush with neo- federalist energy, has shown ample deference to the actions of state and local officials concerning religion when those actions are challenged under the First Amendment Establishment Clause. The European Court of Human Rights might proceed similarly in limiting the reach of Lautsi to public schools – particularly given its parallel doctrine to federalism of granting a “margin of appreciation” to national traditions and practices that are challenged as violations of the religious freedom guarantees of the European Convention on Human Rights.
The aim of this mini-symposium on “Religious Symbols on Government Property” is to probe these questions at greater depth. In the balance of this Article, the authors situate the Lautsi and Salazar cases in the existing case law of the European Court of Human Rights and the U.S. Supreme Court, respectively. The Lautsi case, it turns out, is largely one of first impression: most European Court cases on religious freedom and educational rights to date have dealt with private expressions of religious dress and ornamentation in public schools and other public settings.40 The Salazar case, by contrast, is the last in a three-decade series of convoluted Supreme Court cases.41 It seems to signal a retreat by the Court to its original position of allowing old religious symbols to stand on public lands, even while still preventing religious symbols in public schools.
In the two Articles that follow, two experts provide an in-depth analysis of the Lautsi and Salazar cases and the jurisprudential stakes at work in each case. Adam Linkner, a bright new Constitutional scholar now clerking with a distinguished federal judge, has followed the Salazar case from the beginning. He takes note of the conflicting lower federal court treatment of the very issue on which the Salazar plurality divided – whether a sale of government property that contains offending religious symbols is permissible under the First
Amendment Establishment Clause.43 The real difficulty with Salazar, he argues, is that the
Supreme Court gave too little guidance to the district court on remand to determine the
Constitutionality of Congress's land sale.44Linkner thus cleverly distills the convoluted six
decades of Supreme Court approaches to the Establishment Clause into a more workable
and predictable “insider/outsider” test that he astutely discerns at work even in the multiple opinions in Salazar45 First, this test requires a court to judge whether the “predominant purpose” or intent of the government was to favor, endorse, or privilege religion. This is an “insider” inquiry that considers all the evidence of what went into the government's decision and action respecting religion.47Second, the test requires a court to judge whether an external reasonable observer would see the primary effect of the government's action as one that endorsed religion.48 This is an “outsider” inquiry, one that views the result of the government's action in context and determines whether it mostly supports, favors, or privileges religion over non-religion.49 These are separate inquiries, Linkner insists; a government action respecting religion should be struck down if either its predominant purpose or its principal effect is to favor religion.50 In Linkner's view, Congress's land sale was so transparently favorable to religion that it fails the insider/outsider inquiry. In the end, Linkner thinks Salazar is wrong and the cross should come down. He would likely applaud the recent case of Trunk v. City of San Diego, where the Ninth Circuit Court of Appeals, distinguishing Salazar, ordered the removal of a large cross which was privately donated to the United States nearly a century ago but now owned by the federal government – the Ninth Circuit's concern being that, from an outsider's perspective, the primary effect of the cross was to endorse religion.
Andrea Pin, a distinguished Constitutional law professor at the University of Padua, has watched the Lautsi case emerge from the very region of Italy where Pin had been schooled as a child and where he now teaches as a law professor. Pin provides a close and revealing analysis of the Constitutional history and cultural battles of Italy concerning religious freedom, the shifting relationship between the Catholic Church and the Italian state, and the unique understanding of Italian-style laicita (rather than French-style laicite). Pin then contrasts the Italian Constitutional law of religious symbolism with the emerging jurisprudence of religious freedom of the European Court of Human Rights. Pin regards Lautsi as a serious test case that marks the growing tension between Italy and Europe, between religious traditions and secular modernity, between a commodious Constitutional concordance of religion and state and the emerging right of a secularist to veto these carefully calibrated national arrangements in the name of European religious freedom. In the end, Pin thinks the original Chamber decision of Lautsi is wrong, and the crosses should remain. He thus applauds the recent Grand Chamber judgment.
Together, these two Articles illustrate some of the complexity of the legal issues surrounding the place of religious symbols on government land, and how serious scholars and judges can take opposing views and marshal reasoned arguments for each of them. It is easy to be cynical about these cases – treating them as much ado about nothing, or expensive hobbyhorses for cultural killjoys and public interest litigants to ride. But that view underestimates the extraordinary luxury we now enjoy in the West to be able to fight our cultural contests over religious symbols in courts and academies, rather than on the streets and battlefields. In centuries past in the West, and in many regions of the world still today, disputes over religious symbols often lead to violence, sometimes to all-out warfare. For religious and cultural symbols often embrace and evoke deep personal and communal emotions. Think of what happens when someone attacks or defaces an icon, a flag, the grave of a loved one, or the memorial of a fallen hero. Far more is thus at stake in these cross cases than the fate of a couple of pieces of wood nailed together. These case are essential forums in which to work through our deep cultural differences and to sort out peaceably which traditions and practices should continue and which should change.
