There is an interesting case coming out of southern California that brings to the forefront a few of the constitutional issues involving church and state. The courts have tried to draw distinctions between passive symbols of religion (such as mottoes, crosses and Bibles on seals, and religious sayings on monuments and currencies) and active actions (such as prayer and religious instruction and religion-based actions and policies). It has also tried to distinguish between elimination of long-standing religious practices and those that are introduced as new now, even if the specific act involved is the same.
You may recall chief justice John Roberts making this comment during the oral arguments in the Greece v. Galloway case that showed this distinction.
But wouldn’t we look at it differently if there were –suddenly if there were a proposal today for the first time, to say let’s adopt a motto “In God we trust”? Would we view that the same way simply because it’s –in other words, the history doesn’t make it clear that a particular practice is okay going on in the future. It means, well, this is what they’ve done –they have done, so we’re not going to go back and revisit it. Just like we’re not going to go back and take the cross out of every city seal that’s been there since, you know, 1800. But it doesn’t mean that it would be okay to adopt a seal today that would have a cross in it, does it? (p. 11)
Now the County of Los Angeles has done just what Roberts hypothesized, and voted to insert a cross into its county seal. They are being sued by the ACLU. You can see the current seal on the right that in 2004 replaced the earlier seal on the left. What is being proposed is to add a cross to the one on the right.
It is the history of the seal that complicates things. The original seal designed in 1887 did not have a cross but in 1957 the seal was redesigned as shown on the left to have a cross that you can see in the middle panel on the right above the semi-circles that represent the Hollywood Bowl. The seal was redesigned in 2004 and under threat of a lawsuit from the ACLU, the current seal as shown on the right was adopted where there is no cross and the middle panel now shows a building that represents the San Gabriel Mission church.
The supervisors have now voted in favor of a new redesign to add a cross to the roof of the image of the church. So is this a case of a new cross being introduced or an old cross being re-instated? This is further complicated because the church used to have a cross prior to 1989 but it was brought down due to earthquake damage and then got stolen so that when the current seal was designed there was no cross on the building. The cross was restored to the church in 2009 and the supervisors argue that they are now inserting it into the seal for the sake of accuracy.
I don’t buy the reason but it could well persuade the court to accept the revision for the following reasons. One of the tests used for determining whether any government action satisfies the Establishment Clause is to see whether it passes the Lemon test which requires the act to (a) have a secular purpose; (b) have the effect of neither advancing or inhibiting religion; and (c) not entangle the government with religion. It is the purpose prong that is likely to be at issue here. If the supervisors can argue that they are purely driven by the desire for accuracy, they might be able to persuade the court that they meet the purpose prong, unless there is a record of the supervisors saying or doing things that suggest they have a covert religious motivation (which is what happened in the 2005 Dover intelligent design case).
There is another doctrinal test (the endorsement test) that asks whether a hypothetical reasonable and informed observer would view the government action as an endorsement of religion. That will be tricky to judge in this case.
The burden of proof will be on the ACLU to prove their case and I think they might lose unless there is a clear trail of evidence showing religious motivation for this action. So why take on the case, since a county seal seems like a fairly trivial thing?
There is one school of thought that says that one should reserve one’s energies for major battles and that things like details of images on county seals are too insignificant to waste time on since hardly anyone pays any attention to them anyway.
Another school of thought says that one must fight encroachments of religion into government actions whenever and wherever they occur, however minor, so that it discourages other government entities from trying to sneak in things, hoping that their actions will be too small to be challenged. If many small incursions are allowed, pretty soon we might be surrounded by religious symbolism. So the LA seal issue should not be looked at in isolation.
So whether one thinks this is a good case to take on or not likely depends on your view of the importance of tactical battles as part of a long-term strategy.
From what I’ve heard and seen, the ACLU challenges things based on the sorts of arguments they can make precedent. Like in the DOMA case where they argued for heightened scrutiny for discrimination against gays. The ambiguity of the precedent in this case makes this more of an opportunity for them to get courts to rule their way in the future.
So thinking in that sense, these kinds of minor cases have a significant role in long-term strategy. People tend to think in terms of big cases because they are spectacular and make sweeping rulings and such.
An RC mission without a cross, or an RC mission with one? Seems like a distinction without much of a difference.
I think the ACLU is right on this one, both in principle and in practice. Obviously, the cross is being added for religious reasons, regardless of what the county says, and there will be plenty of evidence to come out as the local news stations interview the average person….. It doesn’t hurt that they can quote Roberts’ statement, as you noted above. It will be interesting to see if the lower courts even try to wiggle around it or not.
The mission was built in 1771, the city was founded in 1781, the country formed in 1850.
The County is a bunch of idiots if they argue the cross is about the present condition of the mission.
If they argue that historically the mission had a cross, then the ACLU should lose (assuming the mission at the time of the county’s founding had a cross) because the mission played an enormous role in the history of the city and so the county.
If they are not arguing history, but current day crapola, they should remove the mission entirely. Nice place to visit, great place for your wedding or quinceanera, but a very very minor role in current LA County culture.
Hell, the best way to attack it is ask why they spend tax payer money to redesign the seal 10 years after it’s last redesign.
That should be county not country of course. Stupid fingers.
My first thought on looking at the image of the mission church was that it looks much like a stereotypical mosque.
Rather than a cross, they should make the image more clearly reminiscent of southern California history by adding a picture of a Native American family toiling in a field under the supervision of an armed friar, maybe with one or two collapsing with visible symptoms of smallpox.
And of course Ronald Reagan smiling down from the sky.
I grew up across the street from an elementary school. The school was across the street from a dairy farm. I can’t imagine there are any dairy farms left in LA County (perhaps out in Palmdale). They’ve moved to San Bernardino County, Riverside County and the Central Valley. There maybe a couple in Orange County.
Pearlette the cow’s days on the seal might be numbered.
I say we eat Pearlette and put in a nod to the Port of Los Angeles.
More like a Mormon temple to me! I’m glad Mano explained what the Hollywood Bowl was supposed to be. The version without the cross looks pretty New-Agey to me. And the triangle and dividers a bit Masonic.
Trebuchet, it’s not a very attractive seal.
The bowl would have worked better if it had a tiny Neil Diamond, Monty Python, Zubin Mehta, Leonard Bernstein, or Kermit and Miss Piggy.