Bruce Ledewitz sends in this comment on my remarks on his Mojave Cross proposal:
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standard I use to judge the secular meaning of religious imagery is
plausibility. If the nonreligious
meaning of a religious symbol is
plausible, the use is constitutional. The nonreligious meaning of a cross in
a WWI memorial, which is the context in Buono, is clear. Perhaps such use would not be plausible in a
memorial for Iraq. I agree that government endorsement of a
religion or religion in general
is unconstitutional. But religious
symbols can have both religious
and nonreligious meaning and when that is the case their use should
I am finishing a book on the
constitutionality of the public use of religious
imagery, so I appreciate any chance to communicate my ideas to the
public (and to potential publishers). Thanks again for your response.
I’d like to know more about this plausibility standard. Is it purely historical? That is, if it’s plausible that the symbol of a religion was originally put in place for a secular purpose (e.g. to memorialize the war dead, to spread holiday cheer, provide illumination on a dark street), then no matter how it is regarded afterwards, it’s permitted?
Moreover if, as Ledewitz claims, images can be both religious and secular, then is it that case that one could be erected with both a religious and secular meaning? That is: Could a group be allowed to place a Ten Commandments monument in a courthouse by claiming (plausibly) that its meaning is religious as regards the Judeo-Christian tradition and secular as regards the importance of law? That, it seems to me, would eviscerate Establishment Clause jurisprudence in such cases–which is maybe what Ledewitz has in mind. On the other hand, maybe his plausibility test would relate only to something like “primary intent.” It makes me uneasy.