I hereby predict—and if I am wrong, in three months no one will remember—that Justice Samuel Alito will not attend the president's State of the Union speech next year. After all, he didn't seem to enjoy himself much this year, and his colleagues Clarence Thomas and Antonin Scalia haven't shown up in years. Contrast that with the annual Red Mass, a Catholic mass for judges and lawyers, which dates to the 13th century and has taken place in Washington for almost 60 years, each Sunday before the First Monday in October. In attendance this year were Chief Justice John Roberts, Scalia, Thomas, Alito, and Stephen Breyer. Justice Sonia Sotomayor, who attended last year's Red Mass, and Justice Anthony Kennedy, who has attended in previous years, were not present.
At the Red Mass this year, the justices heard a homily that flicked at the evils of abortion, gay marriage, and "humanism." There is no record of any justice in attendance furiously mouthing the words "That's not true" as these admonitions were delivered. For what it's worth, I would be just as uncomfortable if these justices all trooped en masse to Kol Nidre services to hear a stem-winder about the magic of creationism. (Which may explain why Justice Ruth Bader Ginsburg stopped attending the Red Mass altogether after hearing her very first homily, which she has described as "outrageously anti-abortion.")
I mention all this as a roundabout way of saying that even when the court isn't tangled up in church/state disputes on its docket, it's still addressing these issues in its backyard, whether it seeks to address them or not.
There has been speculation for some time that there are five votes on the Roberts court to strike down the so-called Lemon Test—the long-standing legal barometer for excessive state entanglement with religion—and that the court's Establishment Clause jurisprudence is about to change rather dramatically. Under another school of thought, things have already changed dramatically, in last year's case involving an 8-foot Latin cross that stood on government land in the Mojave desert.
In Salazar v. Buono, I will forever remember an oral argument for Jutice Scalia's scolding of the ACLU's Peter Eliasberg for the suggestion that perhaps Jewish war veterans don't really want to be memorialized with crosses. The end result of Salazar was a fractured court deciding to kick the whole case back to the lower courts for another look, for reasons that had nothing to do with the Establishment Clause but could keep a civil-procedure class short-circuiting for at least a week.
There was, however, enough sweeping language in the controlling opinion about crosses as secular symbols to at least suggest that something is afoot in Establishment Clause Land. The opinion, written by Kennedy for the plurality, spoke in very broad terms about the secular purpose of the cross: Sure, the cross is "a Christian symbol," wrote Kennedy, but in this case it had not been erected to send "a Christian message" or to put the state's "imprimatur on a particular creed." It had been placed on government land "simply to honor our Nation's fallen soldiers." Kennedy further explained that the cross at issue is "not merely a reaffirmation of Christian beliefs," but that this "one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in the foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."
So, to review: A cross stops being a religious cross when it represents thousands of smaller religious crosses.
In his dissent, Justice John Paul Stevens (the court's last war veteran) wrote that the cross "is a symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith." No wonder so 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: What prevailed in Salazar was the fiction that crosses must of course be secular American symbols because the most deeply religious Christians say so. Or, as Stanley Fish put it in the New York Times: "It is one of the ironies of the sequence of cases dealing with religious symbols on public land that those who argue for their lawful presence must first deny them the significance that provokes the desire to put them there in the first place."
This term, everyone will be watching an Arizona case involving taxpayer credits for donations made to private schools. It looks a lot like a Cleveland school-vouchers case the court has already heard and is riddled with standing and other procedural problems, which may mean that it tells us very little about the court's current thinking on the Establishment Clause. That's why I will be watching a sleeper of a case to be heard next week, an appeal involving a Texas prisoner who sued the "Lone Star State of Texas" (his words, not mine) for interfering with his religious freedom by—among other things—prohibiting him from worshipping at the prison's chapel. Like Salazar and the Arizona tax case, Sossamon v. Texas raises a host of technical questions about who can be sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and whether the state is immune from suit and if money damages are proper relief. It won't surprise you to hear that the ACLU is in this case on Sossamon's side, arguing that the purposes of RLUIPA cannot properly be effectuated unless money damages are available to prisoners who are denied their rights to the free exercise of religion.
Why does this matter? Because at the heart of Harvey Sossamon's complaint is a claim that Texas interfered with his free exercise of religion by relegating him to worship services in a room that lacked "Christian symbols or furnishings, such as an altar and a cross, which have special significance and meaning to Christians." (Emphasis mine.) This injury, as he explains it in his pleadings, prevents him from "kneeling at the alter [sic] in view of the Cross, to pray, or receive holy communion in obedience to Christ Jesus['] command, to observe the Lord's Supper, by Christian ceremony, in remembrance of the divine sacrifice the Lord God made, for the atonement of plaintiff's sins at Calvary."
So, to review once again: A cross (for the purposes of this appeal) is not a neutral, secular symbol, but one so full of meaning that it is in fact indispensable to Christian religious practice.
As I said, the court will handle this Texas appeal without addressing the role and purpose of the First Amendment's religion clauses. They will dispose of it without ever reaching the troubling question of how a cross can be one man's universal and secular symbol of remembrance and the core element of another man's religious practice. It is this same tension that leads one to question how sitting through the Red Mass has become less awkward for some justices than attending the State of the Union. These aren't questions we get to ask of the justices. But maybe they are questions they can ask of themselves.