Sunday, April 18, 2010
By EUGENE KONTOROVICH
The First Amendment prohibits any "law respecting an establishment of religion," and in recent years the Supreme Court's Establishment Clause cases have focused on religiously themed public displays. Yet the court has failed to develop clear rules for deciding such cases, ensuring further litigation. There is something picayune about these disputes, over courthouse Ten Commandments displays or school-yard crèches. In this term's Establishment Clause case, Salazar v. Bruno, for instance, the justices will soon decide whether an eight-foot cruciform war memorial in a park in the Mojave Desert violates the Constitution.
All the while, the court has never come to grips with the existence of a literal established church on a hill just across town—the National Cathedral. Although the Cathedral helps put issues like those in Salazar in proper perspective, it seems the court can't see the Cathedral for the crosses.
The Cathedral's parent body, the Protestant Episcopal Cathedral Foundation, was "constituted" by an act of Congress in 1893, and the cornerstone was laid in the presence of President Theodore Roosevelt in 1907. The charter Congress issued on the Feast of the Epiphany called on the Foundation to "establish…within the District of Columbia a cathedral . . . for the promotion of religion" and other worthwhile causes.
No one has ever challenged the constitutionality of the Cathedral, and rightly not. The Establishment Clause, as understood for most of the nation's history, does not concern itself with such passive ceremonial nods to religion.
The Cathedral is a private entity. It stands on private land and no public money has ever been used for its construction, maintenance or for any other expenses. Congress has no say in its operations (although the first board of trustees, named in the charter, included the sitting vice president and chief justice). The Cathedral has no formal governmental role.
Yet the chartering had clear religious dimensions. The recognition of the Cathedral's special status has since been abundantly confirmed in practice, with it hosting the inauguration of four out of five of the latest presidents, as well as state funerals, memorial services and, under FDR, "annual national patriotic services." At the Cathedral's final dedication in 1990—private funds take a long time to raise—President George H. W. Bush called it "a house of prayer for the nation."
To be sure, the Cathedral's charter gives it no special prerogatives. Yet its generally undisputed status as the "national" cathedral is owed to the charter, and to its subsequent use for official ceremony. By contrast, when a Washington synagogue dubbed itself the "National Synagogue" several years ago, its claim was not accepted by others and it enjoys no particular distinction.
This setup—official recognition, private management and funding—was arrived at specifically because neither Congress nor the clerics of the time wanted an established church. As Bishop Henry Satterlee, the first head of the Cathedral, put it: "The Framers of the Constitution . . . held, from religious conviction, the necessity of the separation of Church and State. . .Unlike the Medieval Cathedrals of Europe. . .Washington Cathedral will stand on the firm foundation of a Free Church in a Free State—free from any entangling alliance with the government; free to declare the whole Word of God without fear or favor of any political party."
The Cathedral's presumptive constitutionality suggests some broader points about Establishment doctrine. When the Supreme Court attempts to reconcile its increasingly broad prohibition against Establishment with the ubiquity of religious symbolism in public life, it resorts to some dubious distinctions. When the court sustains a particular religious display, it says that the symbols in question do not "endorse" religion, or are denatured—essentially "secular." Yet the governmental use of religious symbols, from among all possible symbols, necessarily reflects a favorable view of faith. To call such displays secular either trivializes the faith of those for whom they are meaningful, or simply underscores that their spiritual message is widely subscribed to.
The existence of the Cathedral illustrates the weaknesses of these tests. "Religious and patriotic associations have [always] been intertwined," Satterlee wrote, and thus some public religious forum is needed to give full scope to peoples' national feeling. (Consider the national motto, or the Pledge of Allegiance.) The Cathedral's charter suggests Congress agreed. It would be hard to pass off a working cathedral as predominantly secular.
While the ACLU and other plaintiffs have scoured public spaces for religious symbols to challenge under the First Amendment, no suit has questioned the Cathedral's constitutionality. That in 120 years Americans of all and no creeds have not found it obnoxious is excellent evidence that it is not. In deciding Salazar, the court would do well to be aware of the full extent and rich history of governmental use of religious symbols, such as the Cathedral. A decision against the Mojave cross could have larger implications than the justices might desire.
Mr. Kontorovich is a professor at Northwestern University School of Law.