Not all religious symbols in public places are created equal. When former Alabama Chief Justice Roy Moore installed a Ten Commandments monument in the state Judicial Building he did it with the express purpose of acknowledging God as the moral foundation of law. McCreary County, Kentucky, originally erected a Ten Commandments display for a similar reason and, despite several attempts to backpedal from that reason, the Supreme Court ordered the Ten Commandments down for its original purpose of “endorsing religion.”
But what of those ostensibly “religious” symbols that are not installed for “religious” reasons? The city of Las Cruces, New Mexico, for instance, has as its official symbol three crosses inside a sunburst. To a Christian or one familiar with the crucifixion story in the biblical gospels, the symbol of “three crosses” may call to mind Jesus Christ’s crucifixion death on a Roman cross between two crucified thieves, a central tenet of the Christian faith. “Las Cruces” is Spanish for “the crosses,” a name derived from numerous memorial crosses erected in the area in the 18th and 19th centuries to mark the sites of several different massacres and tragic deaths. Thus, for obvious historical reasons—but not, it appears, for religious reasons—the city of the crosses adopted the three-crosses symbol in the 1940s. The Ten Circuit Court of Appeals upheld the constitutionality of the Las Cruces symbol on September 12, 2008.
Or take that courthouse in Montgomery, Alabama. No, not the state judicial building; rather, the federal courthouse where Chief Justice Moore was sued over his Ten Commandments monument. In front of that federal courthouse sits a pool with two scales of justice on either side of a representation of the face of Themis, the Greek goddess of justice. While those in charge of the federal courthouse décor may have been striving for a classical motif, a display of a goddess’s image is undeniably “religious,” however much the worship of said goddess may have waned in modern times.
Though a few extreme secularists advocate a categorical ban on religious symbols in the public square, not even the federal courts have imposed such a drastic policy. Such a position would work quite a hardship on, for starters, the U.S. Supreme Court, which has numerous renditions of the Ten Commandments and Moses throughout its majestic building and courtroom. The Court has excused its displays of Moses, for example, by noting in McCreary County v. ACLU of Kentucky (2005) that Moses is holding the Commandments “in the company of 17 other lawgivers, most of them secular figure”—there being no risk, therefore, that “Moses would strike an observer as evidence that the National Government was violating neutrality in religion.” Many other buildings in Washington, D.C., would likewise be affected by a no-religious-symbols policy, including the Capitol Building, the Library of Congress, the National Archives and various public monuments around the city.
The federal courts’ modern distinction between permissible and impermissible symbols, as it sees it, is the standard mentioned in above in McCreary: whether the government symbol appears to be endorsing religion. But such a subjective standard actually favors the display of symbols cherished by little-known or even “dead” religions—Themis and the like—over the more ubiquitous Christian symbols—a cross or Ten Commandments display—that are more familiar to the average American who is either a Christian or is familiar with Christian symbolism and beliefs. Luck favors the obscure, as it were.
Thus, while no total ban on religious symbols is making headway in the courts, more subjective and, arguably, more religiously discriminatory policies are being advanced. If a government official posts a well-known religious symbol and thinks “religious” thoughts while doing so, the courts are more likely to order its removal. If that same government official posts the same religious symbol and thinks “secular” or “historical” thoughts, he or she has a better chance of passing court scrutiny. Finally, if that same government official posts a religious symbol from a belief system no one knows about, even with the most sincerely devout and religious thoughts in mind, his or her religious symbol is the safest of all.
“Justice” may be blind, but apparently she can sniff out a hint of sincere religious expression shared by a majority of the people.
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