Just a cross?

Source: Los Angeles County

Sometimes a Cross Is Just a Cross (or Is It?)

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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If I tell you a California judge struck down the addition of a Christian cross to the Los Angeles County seal, that probably sounds like a good example of the separation of church and state. If I tell you that the cross was going to be added to an image of the San Gabriel mission to reflect the real-life, cross-topped church, the same decision begins to sound like judicial overreach. When it comes to religion, framing is everything -- at least under current law.

As it turns out, the story of the cross and the LA County seal is more complicated than either of these simple summaries. The judge had the unenviable task of choosing among various possible narratives to reach a conclusion that’s defensible under existing constitutional doctrine, though by no means certainly correct. And that should tell you something about the strangeness of the Supreme Court’s doctrine in the area of public religious symbols -- and the desirability of reform.

The story begins with the LA County seal adopted in 1957, which you might think of as the Mad Men era in church-state relations. From 1888 to 1957, the county seal was a black-and-white depiction of a bunch of grapes. The 1957 seal was much fancier. Its central panel features an image of Pomona, the Roman goddess of abundance, holding what look vaguely like sheaves of wheat with mountains in the background and the sea at her feet. On either side of her are three panels with icons representing different aspects of LA County. Going clockwise, they depict: three oil derricks; a stylized Hollywood bowl with two stars and the Latin cross above it; a cow, apparently a championship cow named Pearlette; a tuna; a three-masted ship representing the Spanish galleon San Salvador; and a caliper on top of a draftsman’s triangle, standing for construction.

In 2004, the American Civil Liberties Union threatened to sue the county over the presence of the cross floating over the Hollywood bowl. After a debate and several contentious public meetings, the County Board of Supervisors agreed to make changes. The seal adopted in 2014 replaced Pomona with a Native American woman carrying a bowl of what might be fruit. The Hollywood bowl has been moved up a notch, replacing the oil derricks, which are now gone, perhaps because drilling for fossil fuels is no longer something to brag about in LA. The free-floating cross above the Hollywood bowl is gone, with only the two stars, supposedly representing the movie industry, remaining.

Beneath the Hollywood bowl icon is now an image of the eastern facade of the Mission San Gabriel Arcángel, which has origins in the 18th century. The mission was the anchor for the town of Nuestra Señora la Reina de los Ángeles -- Our Lady the Queen of Angels -- the precursor to modern Los Angeles.

In 2004, the mission was under reconstruction; there had been no cross topping it since the late 1980s. So the icon on the seal showed the mission building, which is clearly a church, but without a cross.

In 2009, however, the church got its cross back. And in 2014, the LA Board of Supervisors, after another contentious debate and hearings, voted 3-2 to add the cross to the image of the mission on the seal. It’s small, but you can see it’s there. The ACLU sued.

So, did the addition of the cross amount to the establishment of religion -- an action forbidden to government? California’s Central District federal court thought so. Its decision said the addition of the cross aided sectarian religion in violation of the California Constitution.

Then it turned to the establishment clause of the U.S. Constitution: “Congress shall make no law respecting an establishment of religion….” It applied the so-called Lemon test as enshrined in the 1971 case of Lemon v. Kurtzman, which asks whether the challenged government action has a secular purpose. The California judge concluded that a reasonable observer who knew the history would think that the addition of the cross had a predominantly religious purpose, thus violating the establishment clause.

Its logic was that the same constituency that resisted removal of the free-floating cross in 2004 had taken the opportunity to get the cross back on to the seal in 2014. That motive of seeking to restore a religious symbol was enough to taint the depiction -- which otherwise might well have been constitutional.

Doctrinally, the California court was doing the Supreme Court’s bidding. In a 2005 decision involving framed copies of the Ten Commandments in two Kentucky courthouses, the court made a similar inquiry into the detailed history of the religious symbols, concluding that the motives of those who posted them were primarily religious. The California court was therefore trying to do the difficult job of figuring out motives to see whether the establishment clause was violated.

But the controlling doctrine is more than a little ridiculous. The San Gabriel mission is a Christian mission that logically and historically should have a cross on it. The name “Los Angeles” is itself religious -- and in a specifically sectarian Christian way, given that it derives from one of the appellations of the Virgin Mary, Queen of Angels. Many California cities have names and histories drawn from missions, and symbols that depict missions with crosses, as the court noted.

It makes almost no sense for some depictions of historic buildings with crosses to be constitutional while another one isn’t -- just because of the motives of those who proposed it. It’s also a legal fiction to argue that anyone would know the detailed history of the seal.

A constitutional jurisprudence based on symbols should just look at the symbols themselves, not the arcane history of their production or the motives of those who proposed them. Until then, we’ll have to live with strange results -- like a mission with no cross on it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net