Religion & Law

Here's Fish, in the Times, writing about the recent decision in Salazar:

It has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them, either by claiming for them a non-religious meaning as Kennedy does here, or, in the case of multiple symbols in a park or in front of a courthouse, by declaring that the fact of many of them means that no one of them is to be taken seriously; they don?t stand for anything sectarian; they stand for diversity. So you save the symbols by leeching the life out of them. The operation is successful, but the patient is dead.

The game being played here by Kennedy (and many justices before him) is ?let?s pretend.? . . .

My distaste for Kennedy?s opinion has nothing to do with its result. In general, and for the record, I have no problem with the state accommodating religious symbols and I am not bothered by the thought of a cross standing in a remote part of the Mojave desert even if the land it stands on is owned by the government. I do have a problem with reasoning that is patently dishonest and protests too much about its own motives and the motives of those it defends. But that is what the religion clause drives you to when in one of its clauses ? the free exercise clause ? it singles out religion for special positive treatment, and in the other clause ? the Establishment Clause ? it places a warning label (watch out for this stuff; it?s trouble) on religion. It?s no wonder that the justices who try to deal with this schizophrenia tie themselves in knots and produce opinions that are as unedifying as they are disingenuous.

I think there's a lot to this.  (I think Fish is probably too quick to insist that Congress's motive in preserving the cross is to preserve it as a religious symbol, but put that aside.)  In my view, if it is constitutionally permissible for the government to display religious symbols it is not because the symbols are not religious.  It is, instead, because the display of a religious symbol is not an "establishment" of religion.