Was Justice Kennedy Dishonest?

In a recent NYT column, http://opinionator.blogs.nytimes.com/2010/05/03/when-is-a-cross-a-cross/?emc=eta1, Stanley Fish attacks Justice Kennedy’s plurality opinion in the recent Mojave cross case as contorted and dishonest. Fish’s criticism is a familiar one, and one that is often justified, in cases in which courts uphold some monument or governmental message that has what from one perspective is plainly religious content: the national motto (“In God We Trust”), the Pledge of Allegiance (“one nation under God”), or, in this case, a cross that serves (for some) as a war memorial. Thecourts sometimes say (as under the “no endorsement” doctrine they must say if the message is to be upheld) that in context the message has somehow lost its religious meaning or content. And this rationale is in turn criticized, first for being dishonest and, second, for being irreverent or sacrilegious. That’s basically what Fish says about Justice Kennedy’s recent opinion.

As I already conceded, this criticism is often on target. The logic of the “no endorsement” doctrine does often induce judges or advocates to say this sort of thing, and the rationalization is indeed often implausible verging on dishonest, as well as sacrilegious. I recall being contacted once about being an expert witness in a Ten Commandments case. “What sort of testimony are you looking for?” I asked, and the attorney said they’d like an “expert” who would testify that public Ten Commandments monuments no longer send a religious message. I politely declined.

Sometimes, though, this criticism is misdirected. That is because some advocates and judges reject the “no endorsement” doctrine, but they may still believe that a law or public message ought to have a “secular” purpose. From this perspective, there’s no “either/or”– religious or secular– because a law or message can be both. Thus, a creche can very well serve as a religious symbol but also commemorate the historical origins of a national holiday. That’s what the majority opinion in Lynch v. Donnelly, the Supreme Court’s first nativity scene case (which Fish also criticizes), quite explicitly said: the majority explicitly denied that it was saying the Pawtucket creche had lost its religious significance. People who make the standard criticism against the majority opinion have simply failed to read the opinion. Or they’re reading it through the lens of Justice O’Connor’s (deeply misguided) concurring opinion.

Justice Kennedy, similarly, has argued in earlier cases that the “no endorsement” test should not be accepted as constitutional doctrine. So there’s nothing to prevent Kennedy from saying that a cross can serve as a memorial for those who have died in the nation’s wars, while at the same time asserting that the Constitution does not require the removal of all public religious symbols. Fish accuses Kennedy of inconsistency for saying both things. The basic criticism would be entirely cogent if directed against, say, Justice O’Connor. But I don’t think it’s a fair criticism of Kennedy.

As it happens, I agree with much of Fish’s criticism of modern religious clause doctrine. And this may be the first time I’ve ever come to Justice Kennedy’s defense in print. I do it here, though, not just because I think he’s been unfairly used, but because I think the sort of either/or thinking reflected both in the “no endorsement” doctrine and in the standard criticism of decisions like the cross case contributes to the cultural divisions that these issues have generated. Conversely, an active effort to recover the possibility of “both/and” might be a help in restoring a fragile semblance of unity.