By Donald H. Harrison
SAN DIEGO, Calif. — It is not surprising that some people don't
understand the difference between a large Christian cross standing atop a
public mountain top, expressly for all to see, and an eruv strung so
discreetly around a neighborhood that most people would never be aware that it
is there.
The reason that it is not surprising is because the constitutional doctrine of
"separation of church and state" may perhaps be one of the most
misunderstood doctrines in our society. It's a doctrine that calls out
for explication. I can't think of a topic better suited for study by a
mixed religious-secular commission.
Such a panel should include representatives of the various faith groups, as
well as representatives of the humanists, along with First Amendment scholars,
political philosophers and thoughtful, disinterested members of the public. It
should invite presentations by anyone who desires to address the issue, then
it should deliberate and try to reach consensus on what is in the best
interest of the public. Finally, it should issue a report
containing proposed guidelines as to what violates the doctrine and what
does not.
I think such a panel could be formed right here in San Diego. With the rich
talent in our universities, with the diversity of religious and humanistic
groups, and with the long history our city has had trying to grapple with
these issues, such a group could provide a public service not only for our
city but for the nation as a whole.
If the commission goes about its business seriously, while keeping before
itself the goal of finding a policy that implements the true spirit of the
First Amendment, its recommendations could become a standard for the rest of
the nation. Is there a philanthropist out there who would like to
fund such a commission?
* * *
Let us assume that such a commission were in existence, and that it had asked
for people interested in the matter to submit written testimony. What
would any of us say as we considered the meaning these words in the First
Amendment to the U.S. Constitution should have in our life: "Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof..." We should keep in mind that with the 14th
Amendment, the Constitution made not only Congress but
the States as well liable to the same prohibition.
The latest controversies in San Diego have focused on the cross and the eruv, but
within the recent past I have heard people raise the doctrine in relation to a
half dozen local issues. They assert or question whether the separation
of church and state doctrine may or may not require 1) San Diego to change its
name; 2) the removal of religious symbols from all public places, even the
frescoes in Balboa Park showing Father Junipero Serra celebrating the first
mass in San Diego; 3) the relocation of the former Temple Beth Israel
from county-owned Heritage Park; 4) the elimination of religious symbols
from gravestones in publicly-owned cemeteries; 5) the prohibition of religious
ceremonies and displays in public parks; 6) the prohibition of prayer at the
beginning of public meetings.
As we go through these questions, we need to ask, what is the difference
between government "establishing a religion" and "prohibiting
the free exercise thereof?" Of course, the U.S. Supreme Court has handed
down many decisions over the last two centuries regarding this question, but
one gets the idea that the law is in flux—that perhaps it depends not so
much on immutable principles but upon which side of the question can win the
votes of five of the nine U.S. Supreme Court justices.
So, let's try on our own to differentiate one case from another. I will
offer some thoughts as a jumping off point for this discussion, and if anyone
would like to agree, or disagree, please feel free to send your thoughts for
posting to me at sdheritage@cox.net.
If ever such a commission is established, we'll ship all the opinions over to
its members for them to consider.
I suspect that if we have a serious discussion, you, the reader, and I might
be persuaded to change our opinions on some of these issues. The only ground
rules I would suggest is that there be no name-calling, and that everyone
credit everyone else with good intentions. So, in the spirit of rational
inquiry, I offer these thoughts as tentative formulations.
1. The Mount Soledad Cross—Because this cross is intended to be seen
from miles around and because it sits on public land, it violates the doctrine
prohibiting the "establishment" of a religion. Clearly the
message that the cross sends is that Christianity is the preferred
religion. If the cross were on private land—as the ones on Battle
Mountain and Mountain and Mount Helix are—no constitutional question would
arise.
2. The eruv—Until Congregation Adat Yeshurun successfully applied this
month (September) for San Diego City Council's permission to string an eruv
around La Jolla, very few people were aware that a similar eruv has been in
place in the San Diego State University area to accommodate worshipers at Beth
Jacob Congregation and the College-area Chabad. The intention of
stringing an eruv is not to proclaim Judaism as a triumphal religion, but
rather to permit Sabbath-observant Jews to symbolically expand the boundaries
of their homes. That enables them on Friday nights and Saturdays to
carry packages, or push their babies in strollers—activities that the rest
of us (non-Orthodox Jews and non-Jews) are able to do without such a
device. I think of the eruv as a public accommodation similar to a
wheelchair ramp; it facilitates the movement of some people who otherwise
could not get around, but does not inconvenience any one else. Nor does the
erection of the eruv require public expenditure. It seems to me that denying
people the opportunity to create a nearly invisible boundary line at no cost
or disadvantage to the public would have been an instance of the government
prohibiting the free exercise of religion.
3. San Diego's name—San Diego was named in 1602 by the Spanish
explorer Sebastian Vizcaino in accordance with the custom of naming places
claimed by Spain after the saint whose feast day is closest to the day on
which the claim is staked. Ironically, the place had been named as
"San Miguel" in 1542 by the explorer Juan Rodriguez Cabrillo, but
Vizcaino said he did not recognize the bay as the one Cabrillo had
described. Today, San Diego uses the name Vizcaino gave to it, but marks
the date of its "discovery" by Europeans as 1542. Of course,
Kumeyaay Indians had "discovered" this area long before either of
these Spanish explorers, and had lived here peacefully for countless
centuries. Up and down the California coast, Spanish explorers similarly
honored numerous Catholic saints. San Diego (or Saint Didicus, in
English) was a physician credited with all-but-miraculously curing a member of
the Spanish royal family; today, our area is home to numerous biomedical
research institutes, including the Salk Institute, founded by polio vaccine
discoverer Jonas Salk. What a nice tie in! The name "San
Diego" predated the U.S. Constitution by nearly two centuries. The
city itself was established in 1769, two decades before the U.S. Constitution
was adopted, and nearly 77 years before California came under U.S.
jurisdiction. The name "San Diego" therefore was established
by long usage and nothing should preclude the continued usage of this
inherited name.
4. Removal of all religious symbols from public places—If you
look carefully at the frescoes in Balboa Park you will see some depicting
Father Junipero Serra celebrating the first mass in San Diego, the act that
formally established our city as a Spanish settlement. Furthermore, if
you were to visit Presidio Park, where that mass occurred, you would find a
cross fashioned from materials from that original mission-and-fort site.
These are examples of San Diego marking its pre- constitutional history; the
removal of these symbols would deprive San Diegans of self-knowledge.
Neither the Serra Cross nor the frescoes depicting Father Serra send a message
proclaiming Christianity far and wide; rather they are site-specific
representations of the actual history of this period. Furthermore,
signage at the Serra Cross make its context clear. Likewise, the statue
in Presidio Park of a padre is historically appropriate to its place.
5. Removal of Temple Beth Israel from Heritage Park—Preservationists
moved the first sanctuary of Congregation Beth Israel from its original home
at Second and Beech Street to publicly-owned Heritage Park in the Old Town San
Diego area. The 1889 building features stained-glass Stars of David on
its windows. Above its roofline is a representation of the twin tablets
that bore the Ten Commandments. Inside is an empty Aron Kodesh (Holy Ark) and
suspended from the ceiling is a Ner Tamid (Eternal Light). The structure is
rented by the county government to anyone who cares to use it as a venue for
speeches, meetings or religious ceremonies. Standing in the preeminent
spot of Heritage Park, the old temple is part of a community of structures
celebrating Victorian architecture, but is the only one of a religious
nature. In the debates over the Mount Soledad cross, defenders of the
cross have said surely if the cross must be removed, then old Temple Beth
Israel (built a full century after the adoption of the U.S.
Constitution) must either be moved or modified so as to eliminate its
clear religious symbolism. I think they make a good point. In the event
that the cross is ordered to be removed by the U.S. Supreme Court, I think
that the Jewish community should be prepared to find some private land to
which the venerable old temple can be moved again. Let it be rededicated
to the service of the Jewish people.
6. Elimination of symbols from gravestones—I mention this only because it
comes up, but I believe it is far-fetched. If you visit Fort Rosecrans
National Cemetery, you will see that the otherwise uniform white grave markers
are decorated with crosses, or Stars of David, or other religious or
non-religious symbols in accordance with the wishes of the family members of
the deceased. Here again, it would be wrong for the government to deny
the free exercise of religion to the families of people whose loved ones gave
their lives in defense of American values.
7) The prohibition of religious ceremonies and displays in public
parks—It has become customary for Christians to put up in Balboa Park a
series of creches depicting scenes from the life of Jesus. On numerous
occasions, on Simchat Torah, we have seen Congregation Beth Israel hold
services in the organ pavilion. Over the upcoming Rosh Hashanah holiday,
Tashlich services will be held at various public lakes and beaches throughout
San Diego. The free exercise of religion means that we can express
ourselves religiously in public places through words and actions. Brief
services and temporary displays of religious symbols within public places are
rights enjoyed by any denomination, with no suggestion that they are being
endorsed by the government. As such, they should be welcomed as examples
of our nation's rich, pluralistic heritage.
8) Invocations at public meetings — Whenever a chaplain offers a prayer
prior to a meeting of a City Council, or a body of the state Legislature, or
the Congress, the question arises whether this doesn't clearly entangle church
and state. My belief is that with appropriate guidelines, such a practice may
be quite beneficial. The guidelines would include rotating the opportunity to
speak words of reflection among representatives of various belief systems,
including not only the religious but the humanist. Secondly, before the
prayer or discourse is delivered, a statement should be read by the presiding
officer saying that such invocations or words of reflection are welcomed in
the spirit of honoring all our citizens, and in the hope that the words about
to be spoken will help public officials better understand their duty to all
the citizenry. However, these words do not constitute an official
expression of public policy.