Excerpted From: B. Jessie Hill, History's Speech Acts, 108 Iowa Law Review 2215 (July, 2023) (114 Footnotes) (Full Document)


BJessieHillSymbols are powerful. They convey meaning in a uniquely concise and often compelling way, and in so doing, they persuasively assert particular truths about the world around us. Moreover, they attract new meanings with almost magnetic force, allowing new words and ideas to attach to their malleable imagery over time. But it is worth considering which truths they tell, and the impact of that telling. The controversy surrounding the display and removal of Confederate monuments demonstrates the depth of feeling evoked by symbols, even when the material stakes are relatively low. In parallel fashion, battles have long raged over the legality and appropriateness of sectarian religious displays in public places. The political tension over both sorts of displays thus belies the notion that the stakes of these disputes are “merely” symbolic and passive. Rather, both kinds of symbols are deeply entwined with notions of identity and social status, carrying profound real-world stakes.

There are two eras in American history in which Confederate symbolism and Christian symbolism simultaneously proliferated. Not so coincidentally, these particularly significant moments for the adoption of religious and racist symbolism coincided with cultural and political dislocations in which white, Christian Americans appeared to be in danger of losing their dominance. The first period is the late nineteenth and early twentieth centuries, when America's identity was challenged by an influx of immigration and the failed project of post-Civil War Reconstruction, which also coincided with the rise of Jim Crow. The second is the decades after World War II, during which the civil rights movement and fears of communism again created perceived threats to white, Christian American identity. In both of these eras, religious and racist symbolism became deeply intertwined, symbiotically reinforcing each other's meaning. The production and proliferation of Christian and Confederate symbolism acted as reactive counterweights to these social and cultural moments, attempting to narrate--but also create--a white, Christian racial and religious hierarchy.

This Essay focuses particularly on one specific, ubiquitous symbol--the cross-- that has taken on interrelated racial and religious connotations at various times in U.S. history. As discussed below, the cross can carry both religious and racial meanings. When placed in certain contexts, it is a symbol of dominance and an act of racial and religious domination. This Essay argues that the cross's display in particular contexts not only conveys, but also attempts to assert and enact, the notion that the political community is a white and Christian one. In addition, this Essay also argues that the cross is often used to perform this work precisely when a threat is presented to that white, Christian identity. Finally, this Essay argues that the Supreme Court's recent jurisprudence dealing with challenges to religious symbolism under the Establishment Clause of the First Amendment continues and extends that project of racial and religious domination.

This Essay argues that symbolic displays of Christian symbols should be viewed as particular kinds of “speech acts” that work not only to express but to create and reinforce social hierarchies and exclusion, and thus that their impact has not been properly evaluated by courts. Constitutional doctrine should take account of the unique history of those symbolic displays that were created and adopted at particular historical moments. However, the Supreme Court has instead moved toward immunizing longstanding and historically familiar displays from constitutional challenge by insisting on their passivity, rather than recognizing the work that they perform in constructing community identity. Moreover, by insisting that the Latin cross is a symbol that represents all U.S. soldiers who died in World War I, the Court continues the work that the monuments began--asserting and enacting a white, Christian national identity.

This Essay proceeds as follows. Part I discusses the interrelationship of Confederate and Christian symbolism at two specific moments in American history. Part II then explains why religious displays and Confederate monuments are more than “merely” symbolic acts of expression but instead, actively work to construct a Christian and white national identity. Part III turns to doctrine, providing an overview of the Supreme Court's current approach to adjudicating the constitutionality of religious displays under the Establishment Clause and discussing how the existing doctrinal approach has failed to account for these symbols' unique performative force and social meaning. Moreover, it explains how the Supreme Court's 2019 decision in American Legion v. American Humanist Association has reconfigured the Establishment Clause doctrine pertaining to religious symbols--aggravates and recreates this problematic dynamic.

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This Essay argues that religious symbols, such as the Latin cross war memorials discussed here, are anything but passive. Instead, they act to construct a religious and racial hierarchy by asserting a connection between political, racial, and religious identity in the disembodied, sovereign voice of the state. In doing so, they necessarily suppress counternarratives and conflicting identities, laying waste to the claims of other groups to recognition and inclusion in the history they memorialize. The Supreme Court's failure to recognize this reality is troubling enough. But even more troubling is the fact that the Supreme Court's most recent opinions on the constitutionality of religious displays perform much the same work as the monuments themselves. Those opinions both assert and attempt to reinforce a Christian national identity at a moment when that identity is perceived to be under attack. They are themselves monuments to Christian supremacy.

But what does all of this mean for the constitutionality of cross displays? After the Supreme Court's decision in American Legion, it is no longer entirely clear what sort of symbolic displays will be found to violate the Establishment Clause; however, it seems that a display indicating a political or symbolic alliance of the state with a particular sect may be found unconstitutional, as it would likely be showing intentional favoritism toward one religious group and disparagement of others. The concern with favoritism and disparagement--perhaps the only elements of the once-ascendent endorsement test that remain a part of the Court's constitutional methodology-- suggests that equality still matters in these sorts of cases. Indeed, some commentators have sought to extend the rule of governmental nonendorsement--i.e., nonfavoritism and nondisparagement--to contexts beyond religion, including race. If the Supreme Court means what it says, it should be willing to recognize the religious and racial disparagement inherent in some monuments.

Of course, dismantling these symbols of white, Christian supremacy will not be easy. At a minimum, it will require abandoning the current doctrinal approach, which relies on a free-wheeling historical inquiry. It will also require recognition of how monuments function--that these government-sponsored messages do not merely speak but also act in constructing a community identity, and that their exclusionary meaning is not entirely nullified by changing political circumstances or historical context.

Judge Ben C. Green Professor of Law and Associate Dean for Research and Faculty Development, Case Western Reserve University School of Law.