Thanks to the American Civil Liberties Union, there have been countless frivolous First Amendment challenges with the aim of turning the cause of “separation of church and state” into an obsessive crusade to chase every trace of religion from American public life. Everything from religious symbols on city seals and Bibles on teachers’ desks to creches in public parks and, yes, even Christian-inspired city names such as San Francisco have come under attack.
But occasionally a case comes along where the ACLU would be on solid ground because the religious advocates go too far. There is such a case in the town of Dugger. In 2010, town officials gave permission to Faith Community Church to erect, on town-owned land, a two-stories-tall cross with “Jesus Saves” written on it. Now they’re asking the church to remove it because they got a letter of complaint from the organization Americans United for Separation of Church and State.
Town Council members say they couldn’t keep the cross up without a legal battle, which the town does not have the money for. But at least some officials seem to understand that the town would lose such a battle because it has been improperly endorsing Christianity.
Not that Dugger would deserve to lose based on the original intent of the First Amendment. Our founders had fresh memories of religious persecution, so they were more interested in protecting religion from government than in protecting citizens from religion. Their purpose was to prevent a national religion – several state religions were well-established.
But we have to apply the First Amendment today as it has evolved, not as we wish it were still interpreted. Thanks to the equal protection clause of the 14th Amendment, the Supreme Court has ruled that the First also applies to state and local governments; they can’t appear to favor one religion anymore than Congress can. Having a huge “Jesus Saves” cross on public land at an entrance to town is a pretty clear violation. The Supreme Court pretty much settled that when it confirmed a court of appeals ruling that large concrete cross on public land in San Diego was unconstitutional, even though it had been designated a Korean War memorial.
The immediate solution for the church is relatively easy. It can just move the cross to private land or try to buy the land the cross is now on from the town. That makes more sense than entering a battle it can’t win. In the long run, though, the conversation about religion in the public square needs to continue. We are a very long way from getting it right.