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A Symbol of Our History -- Not a Seal of Approval for a Religion

June 08, 2004|Douglas W. Kmiec

The Los Angeles County Board of Supervisors faces a defining -- or, if you will, redefining -- moment. A motion will be made today to reconsider its 3-2 vote last week to remove a Christian cross from the county seal, an action taken in the face of a threatened American Civil Liberties Union lawsuit and in the name of religious freedom. But the 1st Amendment allows us to appreciate faith's role in our history as we avoid improper favoritism among different traditions. Will the supervisors see the light?

Since 1957, the county seal has included, among other images, a cow named Pearlette, the Hollywood Bowl and Pomona, pagan goddess of fruits and flowers. Not surprisingly, given that the seal is meant to depict L.A.'s history and culture, it also includes a cross, representing the importance of Spanish missionaries in settling the region.

The role of the missions in opening roads in California, establishing agriculture and creating communities is well documented. Historians debate the nature of the padres' treatment of Native Americans, but there is little question that L.A., in the absence of the Franciscans, would be very different.

The ACLU claims that rather than crediting this history, the cross on the seal constitutes an impermissible, coercive "endorsement" of religion. Yet surely no resident of Los Angeles County is coerced to believe or practice anything because of it.

The supervisors are concerned that we would lose an ACLU lawsuit. Are they unaware that the U.S. Supreme Court has approved some public displays of religious symbols? The proper method of analysis, as Justice Sandra Day O'Connor has outlined, disapproves a display only if it "sends a message to nonadherents that they are ... not full members of the community, and an accompanying message to adherents that they are insiders or favored members.... "

The U.S. Court of Appeals for the 5th Circuit applied this ruling when it found that a cross on the Austin, Texas, seal posed no constitutional difficulty. "We decline to hold that any time a municipality incorporates a religious symbol within its seal, insignia, or logo -- regardless of the history, purpose, or context -- the establishment clause is violated. To do so ... accords too little deference to both our nation's religious and cultural heritage and practices and the Supreme Court's guidance."

In cases where lower courts have ordered the removal of a religious symbol on a government seal or property, the symbol dominated a design that could only have a religious purpose. In Zion, Ill., for instance, the seal incorporated multiple religious references including the motto, "God reigns." And the 9th Circuit applied California's "no [religious] preference" constitutional clause against a hilltop cross in La Mesa. Yet the 9th Circuit (which would excise "under God" from the Pledge of Allegiance) was careful to note: "We do not hold that any depiction of a cross on an official insignia in California violates the no-preference clause; we hold only that this particular design violates Article I, Section 4."

The ACLU's threats are transforming a fact-sensitive legal scalpel into a cudgel that would obliterate even the most subtle mention of faith's public influence. Perhaps the supervisors last week concluded that a cash-strapped county could ill afford to defend against legal bullying. But well-respected, national champions of religious liberty like the Becket Fund have stepped forward to defend the county without fee, and that decision should be reversed.

Whatever the legal costs, the intellectual costs of failing to accurately and completely depict our history are greater still.


Douglas W. Kmiec is a constitutional law professor at Pepperdine University.

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