Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Legal Spirits Episode 002: SCOTUS Grants Cert in the Peace Cross Case

Peace Cross 5
The Peace Cross, a World War I Memorial, in Bladensburg, Maryland

 

In this “Legal Spirits” podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami talk about the Supreme Court’s grant earlier this month in The American Legion v. American Humanist Association, the Peace Cross case. The Court will decide whether a 90-year old war memorial in Maryland, pictured above, violates the Establishment Clause. Mark and Marc discuss the ins-and-outs of the case and speculate whether the Court will finally clear up some of the confusion surrounding religious displays on public property.

 

Jensen, “The Cross”

A few years ago, the European Court of Human Rights took up a case involving the display of the crucifix in Italian public school classrooms. A claimant argued that displaying a religious symbol in a public school interfered with her right, under the European Convention on Human Rights, to educate her children in accordance with her own, secular humanist beliefs. The Italian government argued, somewhat implausibly, that the crucifix was really a neutral symbol that reflected secular, cultural values. (Hey, that’s what the Italian national courts held). The Court sidestepped the issue of what, exactly, the crucifix represented, but held that, even if the crucifix were a sectarian symbol, its display was permissible under the Convention.

The meaning of the cross has thus been a matter of great controversy recently, a least in a legal sense. A interesting-looking new book from Notre Dame theology professor Robin Jensen, The Cross: History, Art, and Controversy (Harvard) addresses the various meanings of the cross throughout history and up to today. Here’s the description from the Harvard website:

9780674088801-lgThe cross stirs intense feelings among Christians as well as non-Christians. Robin Jensen takes readers on an intellectual and spiritual journey through the two-thousand-year evolution of the cross as an idea and an artifact, illuminating the controversies—along with the forms of devotion—this central symbol of Christianity inspires.

Jesus’s death on the cross posed a dilemma for Saint Paul and the early Church fathers. Crucifixion was a humiliating form of execution reserved for slaves and criminals. How could their messiah and savior have been subjected to such an ignominious death? Wrestling with this paradox, they reimagined the cross as a triumphant expression of Christ’s sacrificial love and miraculous resurrection. Over time, the symbol’s transformation raised myriad doctrinal questions, particularly about the crucifix—the cross with the figure of Christ—and whether it should emphasize Jesus’s suffering or his glorification. How should Jesus’s body be depicted: alive or dead, naked or dressed? Should it be shown at all?

Jensen’s wide-ranging study focuses on the cross in painting and literature, the quest for the “true cross” in Jerusalem, and the symbol’s role in conflicts from the Crusades to wars of colonial conquest. The Cross also reveals how Jews and Muslims viewed the most sacred of all Christian emblems and explains its role in public life in the West today.

Faith or Tradition? A Bolognese Easter Controversy

Here’s an interesting story about an Italian controversy concerning the giving ofGIOSUE-CARDUCCI a blessing at the public Giosuè Carducci Elementary School in Bologna in advance of Easter. Apparently there is an objection by a parent to the blessing that has generated a law suit against the school. In a lovely exemplar of the privatization of religion, the objecting parent opined, “Everything has a place, and the school is not the place for these blessings.” One wonders whether the public square is the place for San Petronio. And in a clear echo of the “endorsement test’s” concern for offended feelings and excluded sensibilities, there is this: “‘Is it fair that everyone has to see this, even if some students are Muslims, Buddhist or atheists?’ asked Adele Orioli, legal adviser to Italy’s Union of Atheists and Rationalistic Agnostics.” There is also some dispute among the school board members about where the blessing should be given, whether in a central garden location or instead in a less central (and probably danker and less sweet smelling) gymnasium. Finally, there is this from the Reverend Raffaele Buono, who oversees religious education in Bologna’s schools:  “It is not a matter of faith. It is a matter of belonging to a tradition.” Must it really be either/or, Reverend Buono?

Welcome, Italy, to issues that have plagued the United States for the last quarter century! You had your first taste with Lautsi, but believe me when I tell you that these will be sources of limitless acrimony and contention for you. We over here are waiting with bated breath to see whether Bologna will be compelled to rip down its statues of San Petronio and house them in privately owned palestre. (parenthetically, Carducci himself (pictured), a late Risorgimento nationalist writer whose poetry I have generally found to be abominably pompous, would almost certainly have held the Christian blessing in the greatest contempt).

Guerres de Noël

US-LIFESTYLE-HOLIDAY-DECORATIONS

I used to think that the annual Christmas Wars were strictly an American thing, like corn dogs and and attorneys’ contingency fees. Only in America, I thought, do people seriously argue about whether to allow Christmas trees in public parks or to permit public school choirs to sing “Silent Night” at holiday concerts. The issues become more and more bizarre. This year, a Maryland school district decided to remove even a reference to “Christmas” in the school calendar–as though the reference amounted to religious oppression and removal would make people forget what holiday comes round every 25th of December.

Our Supreme Court, whose Establishment Clause jurisprudence focuses on factors like the presence of plastic reindeer and talking wishing wells, bears much blame for this state of affairs. But judges in other countries seem eager to replicate our model. Last week, a French administrative court ruled that the town of La Roche-sur-Yon–located, appropriately, in the historically royalist, counter-revolutionary region of the Vendee–must remove a Christmas crèche from its city hall. The court held that the crèche violates the 1905 French Law on the Separation of Church and State, which, according to the court, forbids religious displays like crèches on public property. According to news reports (in French), the court concluded the display was incompatible with the principle of state religious neutrality, or laïcité.

I don’t know enough about French administrative law to evaluate the decision. What I find fascinating, as an outsider, is how closely the French debate tracks the American. The lawsuit seeking removal of the crèche was brought by a secularist group called the “Fédération de la Libre Pensée,” which, I gather, is analogous to American groups like the Freedom from Religion Foundation and American Atheists. The group argues that the crèche “fails to respect the conscience of the citizen” by “imposing” on him a religious display whenever he enters city hall. In response, the town’s supporters evoke cultural traditions more than Christianity. Religious neutrality, they say, does not require abandoning longstanding French customs. What’s next, they ask? Church bells and Christmas lights? They’ve started a popular hashtag campaign, #TouchePasAMaCreche.

Each side has to live with its ironies. Notwithstanding the rhetorical commitment to laïcité, French law allows a great deal of entanglement between church and state–more, in some respects, than we would tolerate in the US. (Guess who owns Notre Dame and all other church buildings that existed as of 1905? Hint: it’s not the Church). On the other hand, the defense of tradition in this case rings somewhat hollow. La Roche-sur-Yon only began displaying the crèche 22 years ago.

The city has vowed to appeal the decision. I’ll keep you posted. Meanwhile, here’s a thought. If France has adopted the Christmas Wars, can Black Friday be far behind?

Photo: Le Figaro

Berger on Kemalism Here and Abroad

Peter Berger has an interesting column this week, well worth reading in full, about the display of religious symbols by the government and the culture war features of legal disagreement. The legal cases he discusses are not new–the Utah public highway cross case (Davenport v. American Atheists) which the Supreme Court declined to hear and the Lautsi case. Professor Berger might have noted that in declining to hear the case, the Supreme Court left intact the Tenth Circuit’s ruling striking the crosses down as an Establishment Clause violation.

But that’s largely irrelevant, for the insights of the column lie in his comparative cultural analysis:

Why the recent flurry of church/state issues? In America it is part of the politics surrounding the so-called “culture wars”:  The rising influence of conservative Protestants in the Republican party has mobilized liberals against any political role of organized religion—especially since conservative Catholics have been allied with conservative Protestants on most of the issues “south of the navel” (issues, that is, that liberals are personally anxious about). The politics in Europe is different: Conservative Christianity (Protestant or Catholic) is not very significant politically, but the perceived threat of militant Islam has made secularism (such as French laicite) appear as a defense of European values against theocracy.

I think there is also the factor of lawyers looking for business, and then the professional deformation of this group comes into play. Lawyers live, literally and emotionally, on the making of fine distinctions. Thus the distinctions made in American courts, on where a particular instance violates or does not violate the First Amendment, are veritably scholastic (or, if you will, Talmudic). These considerations tend to be sovereignly free of common sense. . . . Am I exaggerating? Of course I am. But I do so for a reason: I am applying the old casuistic method of reductio ad absurdum. 

Let me “reduce” some more: The Kemalist assault on religion in public space is related to an old progressive notion, the abolition of history. It goes back to the Enlightenment and particularly to its political expression in the French Revolution. It was not for nothing that the latter abolished the old calendar and substituted a new one (with months like brumaire and thermidor). That particular exercise did not last long, but the underlying progressive idea persisted: By the very notion of progress, the present is further on the march toward the glorious future than anything in the past. It affected America too: see the motto about the “new order of the ages” emblazoned on the Grand Seal of the United States (and on the dollar bills in your wallet). But in this country these utopian fantasies have often been modified by common sense and by Protestant suspicions about human nature. Be this as it may, the abolition of history continues to be a dream that haunts the progressive imagination . . . .

As I write this, we are on the eve of the Christmas season (the ADL guide would surely prefer just plain “holiday season”). There is the usual orgy of shopping, the favored season for shopkeepers to be merry. Christmas carols blare through the PA systems, jolly Santa Clauses (fully evolved from their saintly ancestor, St. Nicholas) listen to the wishes of small children perched on their knees, everyone smiles with good will. This synthesis of religion and secularity is regularly criticized from opposite sides. The secularists don’t like the religious part. They can’t do much about the shopping malls, but they can surely agitate and litigate against any trace of Christianity in the holiday season insofar as it is acknowledged on government property—maybe crèches can be allowed, but without baby Jesus or any other New Testament characters. If any values are to be celebrated, they are family ties, the happiness of children and general good will. And on the other side are those who want to “bring Christ back into Christmas”, doing away with all the supposedly fake jolliness and commercial exploitation, instead restore the original religious character of this holy-day. I think that both criticisms are misguided. There is nothing fake about the secular cheer of the season, nor about the expressions of general amiability – and there is nothing wrong about the fact that some people are making money out of it. Those who want to focus on the birth of Christ the savior, are free to do so. Let me admit it: I do celebrate the birth of Christ at Christmas. I also like the secular cheer that is also celebrated. I even like the commercialism—it is a source of happiness for many people, especially children.

Devil’s Cross

I was rereading the Supreme Court’s opinion in Salazar v. Buono, the case concerning a cross erected in the Mojave Desert in 1934 by a group of veterans in order to commemorate American soldiers who died in World War I. In his dissenting opinion, Justice Stevens took his usual rigid view in any case dealing with display of symbols: the cross “necessarily” conveys an “inescapably sectarian message….Making a plain, unadorned cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” Justice Stevens also cited approvingly the district court judge’s view that the cross is “exclusively a Christian symbol.”

The more I read these lines, the more implausible I find them and the view of symbols that they represent. Perhaps another way to put my skepticism is that any observer who believed this about a symbol like the cross would be unreasonable–the sort of person who could not effectively administer a “reasonable observer” standard in Establishment Clause cases of this kind. The implausibility of the view is conceptual but it also is empirical. Though I recognize that anecdotes are not data, still, personal experience is worth something. The “holiday” of Halloween was for children when I was a child, but it seems to have become a kind of modern-day equivalent of Venetian Carnevale circa 1760. No matter; this year, I am grateful to Halloween for offering a useful challenge to claims about what the symbol of the cross must mean, in all times and places, for all people.

My neighborhood is child-saturated, and as a result Halloween is widely and noisily celebrated. Part of the celebration involves the display of putatively spooky lawn decorations of motley sorts, among the most popular of which is the “creepy gravesite” ensemble. It used to be that round headstones were the convention. But now one increasingly sees in such arrangements the presence of a cross. Here’s a fairly typical setup:

Devil's CrossProbably my surreptitiously taken picture does not do justice to the mise en scène. But what it displays is a simple black Latin cross with the words RIP at the base. You can see that the cross is surrounded by other Halloween acoutrements–a skeleton in the ground, gravestones, spiderwebs. All around these sit related objects–werewolves and other hairy and unsavory creatures, a plastic witch, ghosts dangling from trees with flashing red eyes, and so on. This sort of decorative landscape is extremely common. The presence of a cross in it is less so, but just in my own neighborhood, I counted 4 displays that contained a cross of some sort.

Suppose that a municipality chose to display something like this on town hall grounds at Halloween. What would it be communicating? What does a cross mean in a display like this? Its meaning is complicated because it is situated in several contexts. It sits first within a mock cemetery but the point of the display is not remotely either commemorative (as in a memorial for the dead) or Christian. The point of the display is to celebrate, in a lighthearted, cute, and possibly mischievous way, all that Halloween has come to represent as an occasion for kids: the occult, mild wickedness, spookiness, and so on. It would make a dour schoolmarm of Christianity to say that displays like this are anti-Christian. Of course they are not. But it would verge on sheer absurdity to claim that a cross in this sort of context conveyed “an inescapably sectarian message,” or that what would otherwise be a tribute to spooky kid fun just must be transformed into a celebration of Christ by the inclusion of a cross.

It is true that even in this context, the meaning of the cross is to some extent connected to the original Christian meaning. It is so connected in this weak way: had there been no prior Christian meaning, there could have been no subsequent tradition in which crosses have come to convey a commemorative message, and therefore no cultural context within which a cross could come to find its way into a Halloween cemetery display. But noting that atavic genealogical connection is very different than assigning this particular cross–or others like it–an indelibly Christian meaning today.

It might be argued that the meaning associated with the Halloween cross only arose because people are ignorant of the Christian, soteriological meaning. That seems uncharitable to me, but also mistaken. What is more probable is that meanings intertwine, and that it becomes difficult over time to disaggregate the religious meaning from other fair, culturally specific interpretations. As I write in The Tragedy of Religious Freedom about the Mojave Desert Cross:

Just as it is impossible to distinguish precisely where the religious ends and the artistic begins in a Bach oratorio, a Giotto fresco, or a Dantean canto, so, too, is it fruitless to attempt to tweeze away the Buono cross’s civic submeanings from an antecedent religious meaning. But the fact that it is unprofitable to perform this exercise in segregation, and in quantifying the importance of this or that meaning, does not mean that permitting these various submeanings to exist is equivalent to condoning state sponsorship of religious belief. Religious and cultural meanings may and do interpenetrate across time. And meanings that emerge from that interpenetration are not ipso facto constitutionally impermissible, but invitations to historically and contextually graduated judgment.