Landscapes of the Secular: Law, Religion, and American Sacred Space

Landscapes of the Secular

Landscapes of the Secular

Law, Religion, and American Sacred Space

Nicolas Howe

The University of Chicago Press

Chicago and London

Nicolas Howe is assistant professor of environmental studies at Williams College.

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2016 by The University of Chicago

All rights reserved. Published 2016.

Printed in the United States of America

25 24 23 22 21 20 19 18 17 16    1 2 3 4 5

ISBN-13: 978-0-226-37677-6 (cloth)

ISBN-13: 978-0-226-37680-6 (e-book)

DOI: 10.7208/chicago/9780226376806.001.0001

Chapter 3 has been revised and expanded from a previously published article by Nicolas Howe, Thou Shalt Not Misinterpret: Landscape as Legal Performance, Annals of the Association of American Geographers, April 15, 2008, reprinted by permission of the publisher (Taylor & Francis Ltd, http://www.tandfonline.com) and the Association of American Geographers, http://www.aag.org.

Library of Congress Cataloging-in-Publication Data

Names: Howe, Nicolas C., author.

Title: Landscapes of the secular : law, religion, and American sacred space / Nicolas Howe.

Description: Chicago ; London : The University of Chicago Press, 2016. | Includes bibliographical references and index.

Identifiers: LCCN 2015039771| ISBN 9780226376776 (cloth : alk. paper) | ISBN 9780226376806 (e-book)

Subjects: LCSH: Religion and state—United States. | Religion and law—United States. | Secularism—United States. | Cultural landscapes—United States. | Landscapes—Religious aspects. | Environmentalism—Religious aspects. | Church and state—United States.

Classification: LCC BL65.S8 H69 2016 | DDC 322/.10973—dc23 LC record available at http://lccn.loc.gov/2015039771

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

Contents

Preface

1   Landscapes of Secular Law

2   Church, State, and the Tyranny of Feelings

3   Performing the Constitutional Landscape

4   The Spiritual Gaze

5   Sanctity, If You Will

6   Looking Askance at the Sacred

Acknowledgments

Notes

Bibliography

Index

Preface

THE CROSS ON SUNRISE ROCK

On a small granite outcropping in California’s Mojave National Preserve, next to a blacktop secondary road about seventy-five miles southwest of Las Vegas, a plywood box stood atop a metal post (fig. 1). The box concealed a cross. The cross, made out of white, concrete-filled pipes, stood somewhere between five and eight feet tall and was bolted to the rock.¹ Beer cans and charred sticks scattered around the outcropping, known locally as Sunrise Rock, suggested the presence of campsites. The nearest highway, Interstate 15, lay roughly eleven miles to the north. A ghost town, Cima, lay two miles to the south. Driving, one could see the boxed cross from a hundred yards or so, framed by the scraggy shoulders of Kessler Peak. On an August morning in 2008, the temperature already nearing 100, no cars passed for an hour. Amid the flotsam and jetsam of desert civilization, the box could have been easily missed or mistaken for a derelict sign. It certainly did not loom. Nothing looms here but mountains and sky.

Figure 1. The Mojave Memorial Cross. Photo by author.

Over some, however, the cross did loom. Thus the box. Six years earlier, a federal judge had ordered the National Park Service to conceal the cross until a lawsuit to uproot it could work its way through the courts. First they used a tarp, secured at the foot of the cross by a chain and padlock. Vandals destroyed the tarp, so they encased it in wood. It looked like a big Popsicle, the park superintendent joked.² Others were less amused. For those who knew its troubled history, the box did not so much conceal the cross as draw attention to its concealment, like pants on piano legs. Until its fate was decided, the cross would live as a cross.

Before its covering, the cross had stood in almost total obscurity (and in sequent incarnations) for close to seventy years. In 1934 the Death Valley chapter of the Veterans of Foreign Wars (VFW) is said to have erected it as an unofficial memorial to soldiers who had died in World War I. As early as 1935, local residents began to hold Easter sunrise services at the cross, a practice that continued intermittently throughout the rest of the century. According to the Park Service, a small sign used to mark the site as a memorial, but it disappeared long ago. The cross had been torn down, vandalized, and replaced several times. Since the early 1980s, a nearby resident, Henry Sandoz, had guarded it. Sandoz and his wife, Wanda, inherited this responsibility from their friend John Riley Bembry, a World War I medic who had helped erect the cross and cared for it over the years.³ Sandoz, who was interviewed, filmed, and photographed many times after the legal battle began, was a plainspoken man with a white handlebar mustache and a black cowboy hat. He erected the present cross on Palm Sunday 1998. Afterward, he gathered with family and friends to grill hotdogs at the foot of Sunrise Rock.

Fighting began the following year. Out of the blue, someone calling himself Sherpa San Harold Horpa of Jensen, Utah, wrote to Park Superintendent Mary Martin requesting permission to erect a dome-shaped Buddhist shrine, or stupa, next to the tasteful cross that stands on [the] small hill. He specified that the stupa would be equal in size, color, material and taste to the cross. It later emerged that Sherpa San Harold Horpa was an alias for Herman R. Hoops, a retired Park Service employee. He and his friend Frank Buono, a former assistant superintendent of the preserve and environmental activist, had hatched the stupa plan to test the Park Service’s policy on the public display of religious symbols. Martin denied Hoops’s request but also announced that the Service would remove the cross. Her employees rebelled and local residents protested. Christian activists from around the country called it an affront to their faith. Veterans called it a slap in the face. Politicians intervened. The ACLU caught wind of the fracas and threatened to sue, and Congress responded by cutting off funds for the cross’s removal. Then, three months after the terrorist attacks of September 11, 2001, Congress buried a law designating the cross as a national World War I memorial in a defense bill. The ACLU took Buono’s case to court. Once an obscure roadside curiosity, the cross quickly became a cause.⁴

Like many church-state activists before him, Buono—who now lived in Oregon—invoked the Establishment Clause of the First Amendment, which bars Congress from making laws respecting an establishment of religion. Joining him as co-plaintiff was Allen Schwarz, a decorated veteran and retired high school teacher active in local and state Jewish veterans’ affairs. Schwarz, who died during the appeals process, told a reporter that the cross did not honor the 3,000 Jewish soldiers who died in World War I. He said, "By putting up a Christian cross, you have left out Moslems [sic], Jews. . . . You’re saying they don’t exist. That’s an affront to me."⁵ By permitting the cross to be displayed in the preserve, Buono and Schwartz claimed, the government had not just endorsed Christianity. It had injured them personally.

At first, the court agreed. There is no question based on the uncontroverted facts that both Buono and Schwartz were harmed by being subjected to an unwelcome religious display, namely the cross, wrote Federal District Judge Robert J. Timlin. Each Plaintiff came into a direct and unwelcome contact with the cross. Each was offended by its presence, and each will continue to be offended by its presence on subsequent, imminent trips by them to or near the site of the cross. Noting pointedly that Buono is a practicing Roman Catholic who is deeply offended by the cross display on public land in an area that is not open to others to put up whatever symbols they choose, Timlin ruled that the cross clearly violated the Constitution and had to come down.⁶ Undeterred, Congress passed a law to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value, donated by the Sandozes. The district court blocked the transfer, and a court of appeals affirmed its decision, although a group of five judges dissented, saying, "the lack of any challenge to the Sunrise Rock memorial for seven decades surely demonstrates that the public understands and accepts its secular commemorative purpose.⁷ Or, as a spokesperson for the American Legion put it, apparently without irony, Opponents call it a cross. But it really is a memorial to World War I veterans."⁸ Petitioned by the George W. Bush administration almost a decade after the trouble began, the Supreme Court decided to intervene.

With the land swap, the case, Salazar v. Buono, had grown legally tortuous.⁹ But at its heart were two basic questions: what kind of thing was the cross, and what had it done to Buono? The government (represented by Solicitor General and soon-to-be Supreme Court Justice Elena Kagan) claimed that the cross was a secular symbol of military sacrifice. It also argued that Buono lacked standing to sue because he had not suffered a concrete, personalized injury from viewing the cross. Instead, the government claimed, he objected to it on abstract, ideological grounds. As a Catholic who was offended not by the cross itself but by the fact that others were prevented from displaying religious symbols in the same place, Buono could not have suffered the kind of direct spiritual injury that the First Amendment was supposedly designed to prevent. Buono’s conscience simply had not been violated. The government did not require [Buono] to drive along a different route when he visits the Preserve, its lawyers reasoned; [he] made that decision on his own. And such ‘self-inflicted’ injuries do not establish standing.¹⁰

A 2009 PBS interview cast a different light on Buono’s grievance. What really disturbs me is the argument that somehow the cross is a secular symbol, Buono said, the television camera lingering on the crucifixes and Catholic icons adorning his home:

I can’t think of anything more offensive to a Christian, to a Catholic: that the cross is a secular symbol. They say, well, it’s a secular symbol of death and sacrifice, and I say, well, only to the extent that it symbolizes the death and sacrifices of Jesus Christ. That is why the cross is a symbol of death and sacrifice, and believe me, I think to a Muslim, to a Jew, to a Hindu, to a Buddhist the cross is no such symbol of death and sacrifice.¹¹

But as for whether an occasional passerby could actually be injured by looking at a small cross in the middle of the desert, Buono seemed to prevaricate:

Whether I’m 500 miles away or five feet away from it, the fact of the matter is that that land is land that I own, that’s land that you own; that’s federal public land. It belongs to everyone, and so it matters to me that the lands that are held in common by the United States do not become the venues for sectarian religious expressions, even of my own religious expressions.¹²

Sandoz, on the other hand, seemed simply bemused. It shouldn’t mean no more than a memorial to the veterans, he told PBS. Like a roadside memorial, the cross was saying, well, somebody died there. That’s the meaning I think most people have out of it, or should have.¹³

To establish standing, the ACLU claimed that their client had been subjected to unwelcome exposure to the cross and would incur burdens to avoid exposure to it in the future. Comparing his situation to that of students forced to read the Bible in public schools or listen to Christian prayers at graduation ceremonies, they stressed that Buono was offended by the government’s implicit Christian favoritism, not by the lack of additional symbols at Sunrise Rock. That Buono was himself Christian made no difference. They warned further that courts should not be in the theologically perilous business of distinguishing between truly religious and merely ideological motivations. What mattered was how such a cross, standing alone on federal land, would be interpreted by any reasonable person, regardless of that person’s faith.¹⁴

Sensing the likelihood of a landmark decision on religious freedom, interest groups and legal activists from across the church-state spectrum jumped into the fray. Religious conservatives hoped the Court’s conservative majority, led by recently appointed Chief Justice John Roberts, would slam the door once and for all on symbolic display suits like Buono’s, which had been reaching federal courts regularly since the early 1980s. Following the government’s lead, they focused in their amicus briefs on the pivotal question of constitutional standing—put simply, a plaintiff’s ability to show that he has suffered a concrete injury that was caused by the illegality about which he is complaining and is redressable by the court. Representing the American Legion of California, lawyers for the Alliance Defense Fund (ADF), a powerful Christian Right counterpart to the ACLU, complained of delicate plaintiffs with eggshell sensitivities—who claim deep offense at the perceived acknowledgement of any beliefs that conflict with their own—[and who] then seek court orders censoring the religious display, as a type of heckler’s veto.¹⁵ The Fidelis Center for Law and Policy belittled Buono’s subjective, psychological dismay.¹⁶ Again and again, the word offended was emphasized, often in quotation marks. For many of these groups, Buono’s suit amounted to a dangerous corruption of constitutional principles. Freedom of religion did not mean freedom from offense. Voicing a common conservative plea, a group of state attorney generals asked the Court to draw a clear and permanent line between mere religious endorsement and true coercion.¹⁷ It was a line that conservative activists had been itching to draw for years.

These eggshell sensitivities were also portrayed in a more sinister light. Attacking the cross, the government’s supporters wrote, meant attacking the military and the Christian heritage of which it was a part. On this view, it was dissenters like Buono who were inflicting real spiritual injury. While the Ninth Circuit’s flawed opinion gave the plaintiff in this case his day in court, the ADF wrote, the fallen soldier’s mother who is deeply offended by the plywood box that now hides the veterans’ memorial from public view has no similar legal recourse.¹⁸ Should the Court side with Buono, they and many others asked, what then would become of the Argonne Cross in Arlington National Cemetery, or of similar crosses throughout the country? If Buono should win, the VFW warned, we face the removal, defacement, or destruction of countless cherished memorials across the Nation.¹⁹ To underscore this danger, the conservative Christian Thomas More Law Center submitted stand-alone photographs of military funerals, including an image of a woman weeping over a casket. Faces, not crosses, fill each frame.

Naturally, Buono’s defenders dismissed the notion that a Christian cross could ever be seen as a nonsectarian, secular symbol. For them, as for their adversaries, the key concept was injury. What harm could a cross inflict? Government-sponsored religious symbols are potent forms of speech that can have real, palpable effects on people who are subjected to them, answered Americans United for the Separation of Church and State (AU) and the Anti-Defamation League (ADL):

The harm from them is not that they evoke mere distaste, displeasure, or even disgust. It is that they deprive citizens of the use and enjoyment of public lands, because using a public facility where the government has chosen to erect a monument to one faith stigmatizes nonadherents as second-class citizens, while demeaning the faith of adherents by coopting what is sacred.²⁰

As evidence, AU and the ADL pointed to psychological studies showing that exposure to religious symbols can have measurable effects on behavior. No matter how inconspicuous it may be, they argued, a cross bombards the observer with its message visually rather than aurally and thus inflicts stigmatic injuries. As in environmental law, they argued, what might seem like merely aesthetic damage to public land (when a road is run through pristine wilderness, for example) can in fact have devastating impacts on the hearts and minds of observers. Yet when they protest, the amici continued, these observers are portrayed not merely as mean-spirited hecklers, but as little better than B-movie vampires: They suck the life’s blood out of communities, corrupting and destroying everything good and holy, yet cower in fear at the mere mention of a cross.²¹ The injury is thus double: stigmatization by the cross, and stigmatization for speaking against it. Hence the Jewish Social Policy Network warned of the "spiritual bruising empathetic Christians like Mr. Buono may suffer from being cast in the role of victimizer.²² By denying the possibility of such spiritual harm, the group Jewish War Veterans warned, the government sought to blindfold the reasonable observer, the hypothetical standard against whom all Establishment Clause violations are judged.²³ The result, numerous amici suggested, would be outright segregation, or what the Jewish Social Policy Network called religiously-gated communities" where dissenters would fear to enter.²⁴

Buono’s supporters largely spoke for religious outsiders, especially Jews, Muslims, and atheists. But they also spoke for religion itself. The Baptist Joint Committee emphasized the degradation and profanation of belief inflicted by a secularized cross. The secularist Center for Inquiry worried that the government’s hard line on standing created a tacit hierarchy, with the truly spiritual needs of the religious placed above the merely psychological needs of the nonreligious.²⁵ The American Jewish Congress, attacking the Achilles’ heel of Establishment Clause jurisprudence, warned that the government’s distinction between ideology and belief moved the First Amendment into dark theological territory.²⁶

A divided court ultimately disagreed. The cross could stay on its lonely hillock. Writing for the plurality, Justice Anthony Kennedy ruled that the land transfer and memorial designation were driven by secular motivations. Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message, he wrote. Moreover, The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. Similarly, the Mojave Cross evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.²⁷

The more conservative justices were less diplomatic. Samuel Alito stressed that removing the cross would have sent a dangerous message that the government is hostile to religion, contrary to the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance. Antonin Scalia (who lambasted the ACLU during oral arguments for suggesting that Jews could not be honored by a cross) categorically denied Buono’s standing to sue, arguing that being offended by a symbol simply does not constitute a cognizable injury. The liberal minority was incensed by all of these claims. But it was the secularization of the cross that seemed to irk them most. Making a plain, unadorned Latin cross a war memorial does not make the cross secular, fumed Justice John Paul Stevens, the Court’s only veteran. It makes the war memorial sectarian.²⁸

The court was mocked by the Left and praised by the Right.²⁹ As Slate’s Dahlia Lithwick put it, Many close readers of the judicial tea leaves saw the case as representing a great shift at the high court toward permitting more religious displays on state property and a triumph for the advocates of that cause.³⁰ Despite remaining legal ambiguities, the deal seemed sealed: Buono lost, the VFW and the Sandozes won. They could now unbox the cross.

But the cross was gone. Less than two weeks after the Supreme Court handed down its ruling, workers arriving to replace the box (which someone had torn off yet again) discovered that the cross had been stolen in the night, its bolts cut from the rock.³¹ Liberty Institute, the conservative Christian legal foundation representing the Sandozes, offered a $25,000 reward. This is an outrage, akin to desecrating people’s graves, said Liberty Institute CEO Kelly Shackelford in a press release. This was a legal fight that a vandal just made personal to 50 million veterans, military personnel and their families, said VFW national commander Thomas J. Tradewell Sr. To think anyone can rationalize the desecration of a war memorial is sickening.³² A week later, a replica appeared. But some legal issues were still unresolved, and it was removed.

A few days later, the Barstow Desert Dispatch received a statement from someone who claimed to have removed the cross. The anonymous writer, who also claimed to be a veteran, promised to return the cross if a suitable private place of display could be found, or if a nonsectarian memorial could be erected on Sunrise Rock. The writer said the cross had been removed lovingly and with great care, stressing that it had been simply moved, not vandalized. It was done because the cross was an oddly placed tribute to Christ, not a war memorial, and that by pretending otherwise the Supreme Court had desecrated and marginalized the memory and sacrifice of all those non-Christians who died in WWI. The writer claimed to have brought a small, nonsectarian memorial to Sunrise Rock on the night the cross was removed, but technical difficulties prevented its installation. Despite what many people are saying, the statement read, this act was definitively not anti-Christian. It was instead anti-discrimination. If this act was anti-Christian, the cross would not have been cared for so reverently. An anti-Christian response would have been to simply destroy the cross and leave the pieces in the desert.³³

Nothing happened. It was a stalemate. Activists turned their attention to other cross controversies in Utah and San Diego. Then in November of 2012, just as the Liberty Institute announced triumphantly that a new cross would be dedicated on Sunrise Rock as part of a court-approved war memorial, another anonymous tipster contacted the San Mateo Sheriff’s Department, informing them that the original cross could be found tied to a fence post in Half Moon Bay, 500 miles from the preserve. Followed by incredulous camera crews, police recovered the cross.³⁴ (Sandoz later confirmed that it was indeed the original.) No one was arrested. A new cross was installed. At the rededication ceremony, a representative of the American Legion, Rees Lloyd, told a reporter for the Riverside County Press-Enterprise that the resurrection of the cross represented a triumph over the ACLU, which has become the Taliban of American liberal secularism, destroying crosses for profit in lawsuits all over the country.³⁵

So ended the saga of the cross on Sunrise Rock, at least for the time being. In less than a decade, it was transformed from an anonymous roadside memorial to a symbol of America’s culture wars, of a Manichean clash between Christianity and secularism, between tolerance and intolerance, injury and annoyance, ideology and belief. Similar symbols litter America’s public spaces. Some, like the Mojave Cross, were made by human hands; others are part of the land itself. Little by little, place by place, icon by icon, battles across the religious-secular divide have produced a new geography of the sacred.

1

Landscapes of Secular Law

Presecular man lives in an enchanted forest. Its rocks and streams are alive with friendly or fiendish demons. Reality is charged with a magical power that erupts here and there to threaten or benefit man.

—HARVEY COX

There are various tough problems yet to solve, and we must make shift to live, betwixt spirit and matter, such a human life as we can.

—HENRY DAVID THOREAU

What does it mean to see sacred space in a secular way? To many, the answer might seem obvious. It is to see with a disenchanted eye, with the cold, disembodied gaze of self-sufficient reason. Mountains, trees, hilltop crosses: to a secular viewer these may symbolize the sacred, but they cannot be charged with a magical power that erupts here and there to threaten or benefit man, as the theologian Harvey Cox wrote five decades ago in The Secular City. These things can represent, but they cannot act. They certainly cannot control our collective fate. True, they may still kindle sparks of presecular feeling in moments of awe, dread, and wonder. But these feelings are confined to the deeply personal realm of so-called spiritual experience. Sacred landscapes may still speak to the secular heart, but only in private, and only in whispers. To be truly secular is to see the enchanted forest for its merely symbolic trees.

Who actually sees the world this way? As it turns out, surprisingly few American secularists. In fact, this way of seeing has long been favored by the country’s de facto Christian establishment, which has enshrined it in the neutral, putatively secular language of constitutional law. From the standpoint of many secular activists, especially those who speak on behalf of minority faiths, it reeks of religious ideology. To begin to see why, let us linger at Sunrise Rock. What was truly at stake in this lonely corner of the Mojave?

If we listen to hard-nosed analysts of America’s church-state struggles, Salazar v. Buono was nothing more than a turf war. One side wanted religion in the so-called public square; the other side wanted it out. Sunrise Rock was just the latest setting in a series of symbolic clashes between these abstract political desires. Talk of injury and offense, heritage and desecration, feelings and freedom: it was just that, talk. What was truly at stake was social and political power—the power to define national identity in religious or nonreligious terms, to define the military (and thus the nation-state) as Christian or secular, to define citizenship as a sectarian privilege or a pluralistic ideal. For Buono and his allies, the cross simply did not belong. To see in a secular way was thus to see territorially. It was to protect the public sphere from religious influence.

This story assumes more than it explains. For one thing, it fails to explain why the supposedly secular side claimed to be fighting for religious freedom, or why the supposedly religious side claimed the cross was merely a secular symbol. Nor can it explain why both sides fought so hard over philosophical questions of meaning, feeling, and seeing. It cannot explain their seemingly endless interpretive wrangling over the message of the cross and its effects on the hearts and minds of observers. One can easily imagine a counterfactual world where these kinds of questions simply never came up, where religious symbols either were or were not permitted in public places—indeed, where the question, "What does a hilltop cross mean?" had only one, blindingly obvious answer. Power and identity alone cannot explain why vision and emotion mattered so much; nor can it explain why this humble object inspired such intense political passion.

A more subtle reading might focus on the kinds of religion at stake in the case. From this perspective, secularists were fighting to confine dangerous and unreasonable religion to the private sphere, represented by pro-cross activists on the Christian Right. It was thus to discipline and domesticate, to make public space a symbolic proxy for the reasonably religious citizen-subject. There is perhaps more truth to this story, but it, too, fails to explain some important details. It cannot account for the iconoclastic and passionately anti-authoritarian nature of Buono’s crusade. It cannot explain his allies’ overriding concern with alienation, exclusion, and stigmatization. It cannot explain Sherpa San Harold Horpa and his half-sardonic stupa. Few of Buono’s supporters spoke for the rational, godless republic. If anything, they spoke for religious outsiders and spiritual dissidents, those threatened by the state’s performance of religious reasonableness. After all, it was the secular activists, not their largely Christian opponents, who held that the cross was more than a symbol, that it was in fact enchanted, that it did possess something like a magical power . . . to threaten or benefit man. It was they who insisted on the visceral materiality of the sacred.

So what was at stake on Sunrise Rock? To answer this question, and to answer the deeper questions it raises about the geography of religion in late twentieth- and early twenty-first-century America, we must listen carefully to what both sides said about seeing. We must see it as part of an unfolding drama of secular vision.¹ That drama is the subject of this book.

QUESTIONING THE SACRED

To see this drama clearly we must look hard at secularism, not just as an abstract political ideology or cultural outlook on religion, but as a way of making and imagining places. At the same time we