Prof. Eastman has filed a lawsuit arguing that the removal of the cross from the L.A. County seal isn’t just stupid, but also unconstitutional. The argument is that it violates the Establishment Clause as well as the California Constitution’s “no preference” clause (which states that “Free exercise and enjoyment of religion without discrimination or preference are guaranteed.... The Legislature shall make no law respecting an establishment of religion....”) The complaint hasn’t been posted on line yet, but the argument seems to be that removing the cross demonstrates a “hostility to religion” which violates the Establishment Clause.
Without having read the complaint, I can’t say for certain, but I’m pretty sure Eastman is wrong here. The Establishment Clause, at least, does not prohibit the state from declining to display religious symbols. As I’ve blogged on Panda’s Thumb, one must take care not to confuse the Establishment Clause and the Free Exercise Clause here. The Establishment Clause merely prohibits the government from doing something that puts the state’s imprimatur on a religious view. Eastman might be arguing that by removing the cross, the County is putting its imprimatur on a religious view (namely, anti-religion), but that is a pretty big stretch. Declining to say something is different than saying something. If Los Angeles were to write on its seal “God is dead,” then Eastman might have a case, but merely removing a symbol does a lot less in the way of making a statement.
Now, I don’t deny that people will see this as expressing hostility to religion. But that doesn’t an Establishment make. You know how I know that? Because a court in Ohio declared that it did not violate the Establishment Clause for the state to adopt the motto “With God, All Things Are Possible.” American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Bd., 243 F.3d 289 (6th Cir. 2001). In making that decision, the court noted that “[t]he mere fact that something done by the government may offend us philosophically or aesthetically does not mean, ipso facto, that the Constitution is offended.” Id. at 309. It used the Lemon test, to determine that the Ohio motto was written with a secular purpose, did not advance or inhibits religion, and did not fosters an excessive entanglement of government with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). And, of course, one of those who most loudly praised this outcome was none other than John Eastman, who wrote that “Ohio’s acknowledgement of God in its state motto hardly seems to qualify as the kind of thing the founders sought to prohibit by the Establishment Clause.” (Eastman also argued that adding “under God” to the Pledge of Allegiance was not a violation of the Establishment Clause.)
Well, the removal of the cross from the L.A. seal is also hardly the sort of thing the founders sought to prohibit. Thomas Jefferson, for example, and James Madison, declined to issue proclamations for thanksgiving days. Was their decision not to issue such proclamations a violation of the Establishment Clause? No, because a government decision not to make religious statements does not violate the Establishment Clause. Really, I think that this is obvious. The Establishment Clause, after all, was written to ban the government from making (at least some) religious statements!
What about the Free Exercise Clause? There, I would think the argument might be stronger, since one might see the County’s action as somehow inhibiting the expression of a religious view. But, again, the Free Exercise Clause does not compel the government to make religious statements.:
It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment..... [But t]his does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit”: “For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”
Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 449-451 (1988) (quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring)).
Simply put, the County’s action in no way bars a Christian from making Christian statements or observing Christian precepts.
I admire Dr. Eastman too much to think that he is engaging in frivolous litigation, or is attempting to make an absurd and clearly wrong argument which runs so contrary to his own published statements on the Establishment Clause in the Ohio case. Yet I cannot imagine what arguments make sense in this case. He seems to be saying that it is not Establishment for the state to say “With God All Things Are Possible,” or to require school children to say “under God” in the Pledge of Allegiance, but that it is Establishment to remove a religious symbol from a government seal. These are, to say the least, not consistent positions. I hope that when the complaint is posted, it will explain what I am misunderstanding. But so far it appears that the only consistent explanation for his position regarding the Ohio motto, and his position regarding the Los Angeles seal, would be a position that “Christian symbols are always right.” And that position is certainly not one rooted in Constitutional law.
Update: Here is the complaint. It alleges several other causes of action which might be valid (I haven’t considered them yet). But as to the Establishment Clause claim, the argument is that
The County’s decision was made under threat of litigation.... Because the appearance of a cross...is so palpably permissible under existing Supreme Court precedent, and because the ACLU’s threat of litigation was met with actual litigation challenging the removal of the cross from the Seal prior to the County’s final action removing the cross...it appears that the members of the County Board of Supervisors...share or condone the ACLU’s antipathy toward public acknowledgement of the role that religion has played in the historical development of Los Angeles County
and that the removal of the cross “manifest[s] hostility toward religion in general, and the Christian religion in particular,” and therefore violates the Establishment Clause.
But, again, the Establishment Clause prohibits government from doing certain things, not from doing things for bad reasons. The question is not whether the County decided to remove the cross out of hostility toward religion, but whether the County’s decision to remove the cross violates the Clause. Yes, in some contexts the motivation of the legislators is relevant to determining constitutional violations—including in the context of the Free Exercise Clause—but that is not the case when the action itself is perfectly permissible under the Establishment Clause. We are, again, talking about the county ceasing to make a religious statement. That is not prohibited by a Clause which bans government from making religious statements.
The complaint says that the removal of the cross “send[s] a message to Christians...that they are outsiders, not full members of the political community.” This is a recitation of Justice O’Connor’s opinion in Lynch v. Donnelly, 465 U.S. 668, 688 (1984). But that opinion is not controlling precedent, and sending such a message does not alone constitute Establishment. Moreover, Prof. Eastman has spent a good deal of his career attacking the notion that sending such a message constitutes Establishment. After all, what does it say to Jews, or Muslims, or Atheists, that a cross was in the seal in the first place? Certainly it sends a message that they are outsiders. Yet Eastman would disdain the notion that the cross’ presence in the seal constitutes Establishment—no, removing it does. This is absurd.
Finally, note once again the reference to “the role that religion has played in the historical development of Los Angeles County.” This is intended to distract us from the idea that the cross is a religious symbol, put into the seal as a religious invocation. For tactical legal reasons, the complaint instead claims that the cross’ presence is only a historical reference, rather than a religious symbol. Now, if I were a Christian, I would be highly offended by this idea. Is this not denying one’s faith before the world? See Matt. 10:33. I think Christians should be offended at the idea that they should pretend that the cross’ significance is only historical, or only literary, or only a curiosity, rather than a glowing symbol of the living faith.