Who is the bigger loser when the Supreme Court rules against church-state separation and in favor of government-endorsed Christianity—atheists, or Christians?
There is a common misconception, perpetuated by the Religious Right, Fox News, and sometimes the mainstream media, that church-state separation protects atheists at the expense of Christians. It’s true that most plaintiffs in Establishment Clause cases are atheists, but who really suffers when the Supreme Court upholds government-sponsored Christian prayers, symbols, and practices? Do such rulings against separation even benefit religious practice? Do they increase church membership? Do they further church autonomy? Do the decisions protect actual devout Christians?
The Religious Right declares victory when they prevail against atheists over a challenged monument or prayer, but they have little to celebrate. When government takes religion from the private domain and thrusts it into the public sphere, it opens that faith to public scrutiny—a dose of sunlight that isn’t always welcomed.
The scientists, philosophers, and scholars of the Enlightenment who founded this country understood that religion and government must be separate for the benefit of religion as much as government.
When government takes religion from the private domain and thrusts it into the public sphere, it opens that faith to public scrutiny, mockery, exploitation, and reinterpretation.
The First Amendment’s Establishment Clause is the first provision in our Bill of Rights for a reason. As the Supreme Court explained in 1962, the Establishment Clause’s “first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.” James Madison forewarned: “Experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.” Thomas Jefferson believed that governmental religious favoritism “tends only to corrupt the principles of that very Religion it is meant to encourage.”
Benjamin Franklin may have put it best when he said, “When a Religion is good, I conceive it will support itself; and when it does not support itself, . . . ‘tis a Sign, I apprehend, of its being a bad one.’”
The Cheapening of Christianity
As the Supreme Court has recognized, government sponsorship of a religious message taints that message “with a corrosive secularism.” Reverend Dean Kelley, former leader of the National Council of Churches, recognized this reality, penning in 1963:
What is the result of all this display of holy things in public places? Does it make the market-place more holy? Does it improve people? Does it change their character or motives? On the contrary, the sacred symbols are thereby cheapened and degraded. The effect is often that of a television commercial on a captive audience — boredom and resentment.
Below I offer a few such Supreme Court rulings that have proven to be Pyrrhic victories for Christianity.
The Nativity Scene (aka Creche)
In 1984, the Supreme Court narrowly upheld a town’s nativity scene because the religious decoration was just one small part of a secular array of an otherwise commercial holiday display (with reindeer, Santa, the works). We pejoratively call this the “reindeer rule.” Justice Blackmun dissented on the grounds it desecrated the religious symbol: “The creche has been relegated to the role of a neutral harbinger of the holiday season . . . devoid of any inherent meaning.”
A decade later, the Supreme Court struck down a nativity display that stood alone inside a city rotunda with no snowmen or reindeer. It was, in other words, too religious, too Christian, too holy. Justice Kennedy noted that devout Christians “may be as offended by the holiday display as are nonbelievers, if not more so.” He reasoned: “To place these religious symbols in a common hallway or sidewalk, where they may be ignored or even insulted, must be distasteful to many who cherish their meaning.” Justice Kennedy nonetheless voted to uphold the nativity largely because he believed that unlike the “Latin cross,” and perhaps because of the Lynch ruling, the creche had already become a secularized symbol of a secular national holiday. He specifically distinguished the Christmas display from a Latin cross, saying the latter would be an obvious violation.
So Christians won the battle but sacrificed the sacred.
The Latin Cross
The creche is not the only victim of Supreme Court desecration. In my 2019 Supreme Court case, Trump’s high court allowed Maryland to redefine the Latin cross’s “exclusively sectarian meaning” by casting it as a “secular” and “benign” symbol that represented Satanists and atheists alike. The Trump administration filed a brief claiming the cross was not religious to begin with!
The government assertions propelled millions of Christians to file a brief on my side, asserting: “[The government’] welter of alleged secular meanings for the cross, and their efforts to minimize its religious meaning, are offensive to many Christians.”
The Satanic Temple co-founder Lucien Greaves declared: “‘Deciding that the Bladensburg Cross does not just represent Christians, but people of all faiths including Satanists, is a kind of blasphemy that is consistent with Satanism.’” Robed Satanists chanted around their newly-dedicated “Bladensburg Satanic Peace Cross” in July of 2021.
Perhaps even more significant is what happened in my Florida cross case that was vacated and remanded back to the Eleventh Circuit after the Bladensburg ruling. In the 1960s, the City of Pensacola allowed a private group to erect a Latin cross in a city park to serve as the centerpiece for annual Easter Sunrise Services. The cross remained the only symbol in the park. Even though I had a Bush Senior-appointed judge, who told me right before my opening argument that he served on the board that voted to erect the cross, I won because the precedent was clear: the government cannot endorse an exclusively Christian symbol.
The Eleventh Circuit reversed after Bladensburg on the grounds that the Pensacola cross was secularized by history and not no longer a purely Christian symbol: “ It’s hard to imagine how the City could more convincingly demonstrate its commitment to neutrality than by allowing use of the cross for any purpose—including one of the complaining plaintiffs’ own satanic rituals.” In other words, a Trump-appointed judge lauded the government for allowing a Satanist (my client) to exploit the Latin cross for “satanic rituals” even outbidding Christians on Easter Sunrise.
This is not a win for Christians. This is a win for Satanists.
Legislative Prayer
In the 1980s, the Supreme Court created a narrow exception to the general rule against government-sponsored prayer for the historic practice of legislative prayer.
Up until 2014, legislative prayer was understood to mean Judeo-Christian prayer. The Supreme Court in Town of Greece v. Galloway changed this when it upheld a New York township’s legislative prayer practice in part because a “minister or layperson of any persuasion, including an atheist, could give the invocation.” (emphasis added). And as a direct result of the Town of Greece decision, atheist invocations are now commonplace.
Christians won the battle but sacrificed the sacred.
Christians may have won the battle to get prayer in local government meetings, but what has that done to the holy practice of prayer? And how does allowing everyone to deliver prayers at government meetings make Christians appear better than the other denominations? Doesn’t this just give other faith groups an opportunity for a government spotlight they wouldn’t normally have?
Wins for Christians are wins for Muslims, Satanists, and Atheists
This past July, a Massachusetts federal court found that the City of Boston acted with a “discriminatory motive” in excluding Satanists from its invocation practice. Satanists were already delivering invocations in Florida, with predictable outcry:
If Christians win their battle to fly their flag over Boston City Hall, that same precedent will apply to The Satanic Temple.
The Rise of the Nones
Preferential judiciary treatment towards Christians isn’t actually increasing the percentage of Christians in the electorate or making Americans more religious. In terms of both religious affiliation and belief, American demographics have been trending steadily secular for at least two decades, to the point that about one in four Americans now identify as religiously unaffiliated.
In ruling in favor of Catholic employers in 2020, Trump’s Supreme Court declared: “the Religion Clauses protect the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” Yet Trump’s Supreme Court also allowed the government to secularize the Latin cross over the objection of millions of Christians. How on earth does that recognize a church’s absolute right to interpret religious texts with their zeal?
The Supreme Court has allowed the government to quash the spiritual content out of the Latin cross, Christmas Jesus, Easter and even prayer.
Trump judges are decidedly anti-American. They want Satanists to use public crosses and horrify local Christians. They want strife. Because strife leads to tyranny. It’s not about religion at all. It’s about power and control.
My cases are not atheists vs. Christians, they are citizens vs. government bureaucrats who abuse Christianity for their personal political gain. We need Christians fighting these battles with us, opposing governmental religious endorsement, refusing handouts, and demanding autonomy in messaging. Christianity may be doomed in America (on its current Supreme Court trajectory anyway) but America will survive provided we keep our wall separating church and state high and mighty. Sadly, that’s not the current state of affairs.
Until Christians realize they have an equal, if not greater, stake in separation, we can expect to see a Handmaid’s Tale future, and in the not-so-distant future.