Liberty Or Favoritism?

As we wait for the U.S. Supreme Court to decide another religious liberty case–this time, concerning the constitutional propriety of a 40-foot cross in Maryland–it might be helpful to revisit the origins of the competing definitions of “liberty” that are at the heart of so many of these cases.

We are told that the colonists who originally settled in what is now the United States came to the new world for religious liberty. And that’s right; they did. But their view of religious liberty was that it was “freedom to do the right thing.” And that involved establishing colonies where the government would make sure that everyone did “the right thing.”

Around 150 years later, George Washington became the first President of a country founded upon a very different understanding of liberty. Liberty was conceived of as freedom to do your own thing, so long as you did not thereby harm the person or property of someone else, and so long as you were willing to accord an equal right to others.

What had changed the definition of liberty? The scientific and intellectual movement we call the Enlightenment, which had occurred in the interim between the original Puritans and the Revolutionary War.

The U.S. Constitution may have been based upon the definition that emerged from the Enlightenment, but America still is home to lots of Puritans. And their “sincere belief” is that liberty means the government should be able to impose–or at least, privilege– their religion.

An editorial in The New York Times explains the case currently pending before the Court:

This week’s hearing, in American Legion v. American Humanist Association, involved a 40-foot cross in Bladensburg, Md., that was erected 93 years ago to honor fallen World War I soldiers. The question before the court: Is Maryland in violation of the First Amendment because the memorial is on public property and maintained with public funds?

There would be no constitutional violation if the cross were on private property. The issue is government endorsement of religion, which is prohibited by the Establishment Clause of the First Amendment.

The editorial notes that there is considerable confusion about the application of the Establishment Clause to public monuments.

Lower court judges are confused about how to apply the Supreme Court’s dictates in this area of the law, so more clarity from the high court — if not a definitive, bright-line rule — is in order.

Alas, such clarity doesn’t seem to be on the horizon. After Wednesday’s hearing, the court seems poised to allow the cross — which otherwise bears no religious inscriptions — to stay. But the justices don’t appear to be any closer to consensus on this issue than they’ve ever been.

“I mean, it is the foremost symbol of Christianity, isn’t it?” Justice Elena Kagan asked at Wednesday’s session. “It invokes the central theological claim of Christianity, that Jesus Christ, the son of God, died on the cross for humanity’s sins and that he rose from the dead. This is why Christians use crosses as a way to memorialize the dead.”

Justice Stephen Breyer, who in the past has wrestledwith the Constitution’s religion clauses, pondered whether “history counts” when assessing a monument’s legality. Maybe older displays, erected when the nation wasn’t nearly as religiously diverse, should be allowed, he suggested. “We’re a different country,” Justice Breyer said. “We are a different country now, and there are 50 more different religions.”

Not surprisingly, the Trump Administration–which wasn’t a party to the case and need not have offered an opinion–weighed in on the side of those who want the cross to remain.

The editorial concluded:

With its recent rulings, the Supreme Court has only muddied the separation between church and state by taking seriously religious objections to contraception, civil rights laws and the allocation of public funds. It is hard to fathom the justices being nearly as accommodating with a publicly funded monument to atheism or a Wiccan pentagram. And last month, the court couldn’t even agree that a Muslim death-row prisoner from Alabama deserved the same rights as Christians in his final moments.

However the justices resolve this the dispute, they would be wise to not sow more confusion in this area of the law and feed the perception that only certain religions and practices get a fair shake in public life.

When those “certain religions” are privileged, equality before the law takes a hit.


  1. When the best we can hope for is that the Supreme Court makes a ruling that does not “sow more confusion” on an issue, we have reached a point where we are teetering on the edge of the abyss.

  2. The issue of religious symbols (and it is always Christian) on public property was decided several years ago…I thought. The symbol of the cross IS based in Christianity; but the question appears to me to be which denomination of Christianity does this particular cross symbolize if Trump and his evangelicals are in favor of keeping it? Do they even know themselves what they are supporting or why they support it?

    “When those “certain religions” are privileged, equality before the law takes a hit.”

    Equality before the law and adhering to the Constitution, especially regarding religion, was tossed aside with Trump’s first Executive Order by denying the already “vetted” Muslims to enter this country. That particular issue has changed form but remains activated by denying entry to people, whatever their status, from specific countries.

    “Justice Stephen Breyer, who in the past has wrestledwith the Constitution’s religion clauses, pondered whether “history counts” when assessing a monument’s legality. Maybe older displays, erected when the nation wasn’t nearly as religiously diverse, should be allowed, he suggested. “We’re a different country,” Justice Breyer said. “We are a different country now, and there are 50 more different religions.”

    Applying Justice Breyer’s concept of “history counts” could/should have been applied to the legality of monuments in the south of Confederate Generals on public property; it was nothing but a political issue and they should have been allowed to remain in place. They were American citizens who remained American citizens, none were prosecuted for war crimes but were welcomed back into the Union by President Abraham Lincoln…a Republican.

    There have already been cases of people trying to prevent the Confederate flag from being flown on private property; an ugly reminder of an ugly chapter in this country’s history to be sure. There are many ugly chapters in the history of this country and removing reminders of them does not remove them from existence. We can, and we MUST, compare this case of the 40 foot Cross in Maryland to the anti-abortion laws which could also be expanded to government being allowed to REQUIRE abortions of specific women of their choosing.

    “Liberty or Favoritism?” applies here…and to birth control…and to voter registration and voter purging…and to personal sex lives…and to FREEDOM OF THE PRESS which will deprive us of access to facts before any of these cases reach courts at any level. If America does not recognize the current loss of liberties and leadership by favoritism; we can count on Trump being reelected in 2020.

  3. What fascinates me is these are the same folks who rail against “big government.” Trump wants to build a giant wall, has offered multi-billion dollar bailout packages for farmers and wants the government to fund private religious schools.

    Their hypocrisy is endless.

    As long as the government is working in their favor–it’s righteous.


    If SCOTUS allows the giant cross, how long before other religions want one of their symbols on public property cared for by taxpayer dollars?

    I would expect it the day after the ruling…

    Maybe the Humanists fighting this cross already have plans for suggesting a monument. 🙂

  4. No matter how hard I try, I can’t see this court ruling in favor of the plaintiffs.

  5. Folks, as has been noted, all the people honored by this symbol are Christians and the thing has been there and bothered no one for all this time. We have many more significant issues of “religious correctness” that affect real people’s lives than this!

    I live in “Silent Sam’s” town and have watched “racial correctness” tear our town, university and state apart. We have real issues of life pain for Black people to deal with that the energy spent on a stupid statue that bothered no one for nearly 100 years could be used for…

    Let’s do real work for justice and fairness, not divisive screaming and symbolic havoc.

  6. The issue is also if you allow a cross to be displayed on public property, how many other religions will you then have to accommodate. It would seem the American Legion would have no status as the cross is not on their property and it is maintained by public funds. Perhaps a solution might be take the arms off of the cross and it would become obelisk type of monument.

    The bible thumping evangelicals want the excessive liberty to impose their religious beliefs on others.

  7. Religious symbolism visible to all is nothing more than tribal ego expression that says, “My beliefs are stronger than yours.” It’s all bullshit, of course, but then that’s what religion tends to do when it is “competing” for souls and MONEY.

  8. The colonists who came to our shores were not only seeking religious freedom but were escaping religious tyranny, only to establish their own form of religious tyranny here. King Henry, whose abundance of testosterone caused him to break with the papal regime (another tyranny), formed a tyranny of his own (in which to this day the king or queen is the head of the Church of England, thus cementing politics with religion). Dissenters to the new tyranny fled to Holland and to our shores.

    Though since fragmented into many religious groupings today, Christians seem to be relatively united in having Christian symbolism on public or publicly supported venues such as parks, courthouse lawns etc. They are proceeding as though the Enlightenment never happened or that Madison didn’t mean to write what he did in the Second Amendment, that the descriptive Federalist Papers are to be disregarded, or that there are millions of non-Christian taxpayers who have standing and a right not to pay for someone else’s expressions of religious views.

    Count me as one of the dissenters to the dissenters of old. I am opposed not only to Christian symbolism either on publicly owned or supported venues or public funding in such connection but also to such symbolism of any religion where public ownership or leasehold or public funding are involved. There is good reason to support separation of church and state. Read history, or look around even today at states where there is no separation. Let’s have the state referee but not participate in religious choice.

  9. Gerald,

    Perfectly said. Religion keeps coming to the rescue of sanity. See: DeVos, Betsy; Pence, Mike.

  10. I look at who,,files the complaint..and ties the hands of people outside their camp. if tolerance is a myth in the bible, then the theology behind whatever they want to believe, has to be driven onto others? if they say i want my religious freedom, wheres my freedom to have mine? or, if im a non believer,(i am) wheres my right to have my own life,without due cause of your issue? when i read about confrontations of lbgq and religion, why is anyone,for any reason, forcing the subject. my freedom, not to have a confrontation,when i can obviously see, as myself as a customer, will not do buisness with you.. (ill take my bucks elsewhere) Im around diffrent types all day long, working class,moms,kids etc. if they try and sell me on religion,i respectfully pass on the sermon. and i will say, i do not believe, and please respect my view,as i do yours. i just cant see tying the court up with what i feel is a frivolous subject. being a non believer, prove theres a deity who has created this whole mess,and and ill step aside and let ya win the conversation. but now the court has to stand on a ground that this,, a unproven theory, and render judgement..If America hasnt given religion enough,maybe you need to give America something,besides taking our time up with frivolous suits.

  11. The Republican Party of 2019 is about three issues: 1. How do I justify and validate and spread my racism; 2. How can I coerce others to think as I think since my thinking is unquestionably right; 3. What move can I make that is most likely to attract more money into my campaign to save America from liberal laws that consume tax dollars that rightfully belong to my contributors? All of these center around the acquisition of power and the use of power to cancel the progress of the Enlightenment.

    In pursuit of this perverse philosophy, nothing is off limits, including vilification of a dead senator who served the country honorably his entire life, dumbing down America, denying a president’s right to nominate a Supreme Court Justice, erosion of the rule of law, white nationalism, kleptocracy, ceaseless lying, undermining the power of the press, subverting evangelicals by hypocritically supporting their abortion position, demonizing foreigners, uninformed economic policies, irrational and self-destructive foreign policies, adoration of dictators, and on and on and on.

    Justification of favoritism is on public display in the White House and via cabinet appointments. Liberty, to this administration, means freedom to behave as the Party (or Trump) tells you to and freedom to speak within the boundaries the Party (or Trump) lays out. Acting or speaking otherwise brings down the wrath of America’s most prolific tweeter. In other words, the issue of “liberty or favoritism” has been settled as far as this administration is concerned and will not arise again until Trump is replaced. If he knew of a way to implement his wishes, Trump would willingly use the military to enforce these views.

  12. Isn’t every grave in Arlington marked with a white cross? How does this figure into the debate?

  13. Unfortunately we seem to be in times where technological progress has moved on much faster than cultural progress. We can at least create the illusion that the earth can support 7.5B people. We are never more than a days travel from every other person on earth. Live images and sounds go around the world instantly. The Internet gives us at least superficial exposure to, well, everything everywhere. Everyone has a soapbox to opine from. Sellers can come in to our living spaces and compelling pitch their wares.

    We are in fact one people for the first time in history.

    Yet we are swimming in cultures centuries old. Even the Supreme Court is confused about how to apply outdated culture to modern conditions.

    It’s a problem whose solution is at once difficult, far reaching, pervasive, and slow to be solved.

  14. Ah, liberty! I shall take the liberty to respond to a comment in yesterday’s blog.

    Peggy Hannon: You say, “You only need to be able to read to understand our constitution.” and then almost immediately, you state …”it (the Constitution) says different things to different people.” And soon after, you complain that something needs to be done to “…limit the impact of ideologues on the interpretation (of the Constitution).”

    All that to rebut my suggestion that the Constitution needs to be rewritten to say what it means in a way that cannot be misinterpreted.

    I have a friend who has memorized the Constitution. He can quote it verbatim, which serves him mostly as a cheap bar trick…but he has no idea what the Constitution means…because 1) he does not know the full meaning of many of the words that he quotes, 2) he does not understand that words have two meanings–denotative and connotative–and 3) he cannot decipher double negatives, which do exist in the Constitution.

    It is possible that the authors of the Constitution did not want to be explicit and precise and were fine with the document being obtuse enough to be flexible in the face of changing events. If so, the strict constructionists need to back off into the snake hole they come out of, and the rest of us need to become more comfortable with unending debates about how the Constitution should be applied.

    And it would help if we all learned to read, so that, unlike my friend with the memory, we understand what we read, as well as recognize when the authors of what we read do not even intend to be precise.

  15. Grave markers at Arlington are generally “generic” tombstone shapes. On each shape there might be a Christian cross, Star of David, or other religious symbol reflecting the faith of the service member interred there. Presumably the symbol is chosen by the family. The photos I saw to verify my understanding also show there are a couple of cross designs, one a Celtic cross (Catholic?) and the other the “standard” Latin cross.

  16. Clarification: Every grave in Arlington is not marked with a cross but with the symbol of that individual’s religion. And those that do not believe in a religion show none. Not a situation where any religion or none is endorsed. Just information regarding the individual.

  17. Justice Kagen has ascribed penal atonement with a Jesus substitution as a belief of all Christians. It is not. Lots of changes today in resurgence Christianity based on the reconciliation of all human kind in the very existence of Jesus.

  18. Sheila —
    Having finished (and thoroughly enjoyed) “We the People”, considering the conservative court now seated, dream on!

  19. Dear Sheila –
    Having finished (and thoroughly enjoyed) “We the People” and considering the conservative court now seated, my bet is that Favoritism will be the guiding principle for the next several decades.

  20. Lester Levine,
    How, exactly, do we know the men honored by this memorial were christian?
    How, exactly, do you know that no one has ever been bothered by this memorial before?
    Seems to me that correcting a constitutional violation, even if it took some time to be recognized, IS about justice and fairness.
    I suspect your response would have been very different had the memorial been in the shape of a crescent moon.

  21. Pete,

    Very perceptive. Great insights. I’ll look forward to reading your book on the asynchronicity between culture and technology. To me, the implications seem vast. Please let me know if the book has already been written.

  22. RJD – Arlington Cemetery markers show the religious symbol of the deceased’s faith, whatever that was. So you will see more than crosses at Arlington.

  23. Mark – I did not do the fact checking on the people. It was a reputable source.

    I went through public schools that sang Christmas carols every year and somehow survived.

    Do we need to go on a hunt throughout the US for every cross on public property that may have been there for many years? I, for one, would prefer to see that energy put into REALLY saving our democracy.

  24. “What had changed the definition of liberty? The scientific and intellectual movement we call the Enlightenment….”

    Minor point. “Most historians have abandoned this grand narrative of the Enlightenment which conflates political and intellectual developments…. Enlightenment thinkers were not politically or religiously progressive in any way.” Per “Misrepresentations” by Dimitri Levitin in London Review of Books November 22. 2018.

    While I think there is abundant evidence to support Ms. Kennedy’s viewpoint, there are prominent dissenting views.

    Outstanding post, Ms. Kennedy

  25. San Francisco had a cross-on-public-lands issue too…103 feet tall, 750 cubic yards of concrete around thirty tons of reinforced steel. To avoid demolition following lawsuits, the cross and 0.38 acres of land around the base were sold to the Armenian community for $26,000 and it now “stands as a memorial to the 1.5 million victims of the Armenian Genocide of 1915.”

Comments are closed.