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Something has been irritating me about Establishment Clause jurisprudence for some time.  At least one source of my pique was crystallized in, of all things, a very recent New York criminal case: People v. Knowles, a decision of the appellate division in which the defendant claimed that the prosecution's use of its peremptory challenges to exclude a black juror violated Batson v. Kentucky.  The prosecutor's reason for the exclusion?  That the juror had admitted that she read the Bible "in her free time" and that "while there was nothing wrong with the practice" (always comforting when the state says such things) it was "an unusual reading choice" that suggested to the prosecutor that the juror "might be a person who would be on the spectrum of forgiveness rather than judgment."  Apparently, this explanation was felt by the appellate court not to be pretextual.

What interests me is not so much the outcome, though that is curious as well.  Presumably the pretextual quality of the peremptory challenge ought to depend on whether the juror was reading, say, the book of Matthew or Revelation, but I can certainly understand the court's unwillingness to inquire after the juror's chapter-and-verse preferences. 

Instead, it is the typically legal characterization by the state about what someone who read the Bible in her spare time would be most likely to believe, and even to be, that I want to consider, because this kind of characterization is common in particular sorts of Establishment Clause disputes as well.

The assumption in certain Establishment Clause cases, present in this criminal case, is that religious texts and symbols have a core meaning, and that it is the law's job to identify that core meaning -- to pin it down, so that it can be used across a range of cases as a ready-made ingredient in a legal test.  Sometimes commentators will describe this exercise as the search for "social meaning," giving it sophisticated theoretical bona fides.  But often enough, that core meaning will be reduced to a description of a single "belief" about something: a credo, a proposition.  Once the text or symbol has been characterized in terms of that single belief, it is then possible to say that claimants who are committed to those religious texts and symbols are actually committed to the formerly identified proposition, which has already been adjudged impermissible (or, in the case of the criminal case, disqualifying).  

The key feature of this move in the law is that there will only be one core description of a text or symbol, and it will always deal with some proposition, some "belief."  So, for example, some will claim that "under God" in the Pledge of Allegiance is the purest expression of religious belief, and that is the phrase's core.  When the state includes that phrase in its pledge, what else could it intend than full-throated expression of the belief that there is a God, and that the state is subordinate to Him.  Others will react by driving hard in exactly the opposite direction, denying that the phrase says anything at all about religious belief.  To counter the position of their antagonists, in all sincerity, they will claim that the phrase indicates absolutely nothing about what the government "believes." They need to make such an extreme claim, because if the government is seen to believe that which it is not permitted to  believe, then we've got endorsement problems.

Similar sorts of problems arose with the Salazar v. Buono Cross.  That Cross has stood since 1934 as a monument to the war dead.  In the near century that it has stood, it has doubtlessly acquired many meanings to those who have seen it, or read about it, or thought about it -- perhaps not as many meanings as has the Bible to all who have read it in the span of millennia, but a dauntingly irreducible number at any rate.  And when Congress in 1999, in response to its threatened removal, designated the Cross a national memorial, its motivations were doubtless tied to the multiplicity of meanings that the Cross had acquired over time.

But those who would remove it want to show the opposite.  They want to demonstrate not only the Cross's unitary meaning for legal purposes, but also that the unitary meaning relates to the government's belief, manifested in its designation and support of the symbol, that Christianity is supreme among faiths.  And those who oppose the Cross's critics must, in their own turn, then argue implausibly that the Cross has absolutely no Christian connection at all. 

One might wonder what business it is of the law to express such arrogant certitudes about a symbol's or a text's unitary social meaning?  Or to tell us what those who find meaning in these symbols must believe?  Indeed, one might ask whether just these sorts of judgments are themselves problematic from an establishmentarian point of view?  In this smart piece, Ian Bartrum suggests that they may well be.  Bartrum's concern is with the reaction of folks like Justice Scalia: he claims that some of the Court's members may themselves be "working to diminish the religious meanings of sacred symbolism," consciously draining the sacral.  But he only really nails half the problem, and not even the core of it.  The position of Justices Kennedy and Scalia in Buono that there is little that is religious in symbols like the Cross was a predictable reaction to the Court's own presumptuousness -- its ambition to define, once and for all, what sacred symbols mean, using only a slightly more refined version of the prosecutor's method in Knowles.

It is not for the Court to identify a core meaning of religious symbols and texts.  It is not for Justice X to tell us that the social meaning of "under God" expresses a profound religious "belief" while Justice Y counters that it expresses nothing religious at all.  And if the reply is that without such certitudes, law cannot function coherently at all, then perhaps it is time to consider the virtues of incoherence.   

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