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The James Wilson Foundation on Natural Rights and the American Founding

“How Old Does a Monument Need to Be?” — Prof. Mark David Hall in Law & Liberty

In a recent piece for Law & Liberty, JWI Affiliated Scholar Mark David Hall of George Fox University critiques using the age of religious memorials on public property as the determining factor for their constitutionality. The primary problem with this argument, he writes, is the lack of an agreed-upon age at which monuments become recognized as part of our collective history. Pointing to several newly erected religious monuments in different states, Hall demonstrates the absurdity of the claim that the Establishment Clause applies less to them than to generations-old WWI memorials such as the Bladensburg Peace Cross. Rather than simply erasing religious symbols from public spaces, says Hall, we should turn to civic friendship to inform our application of the Constitution.

Some quotes from the article:

“Those who would remove religion from the public square have suggested that these monuments are, in the words of Garrett Epps, “Fine Now—If They’re Old.” Put another way, if a religious symbol, image, or inscription on public property has been there for a long time, it is constitutional; if was adopted recently, it is not. Such an approach may be reasonably attributed to Justice Steven Breyer, who stated in the Peace Cross oral arguments that: “History counts. And so, yes, okay, but no more.”

“The erection of building and monuments containing religious language, images, and symbols is, to borrow from Chief Justices Warren Burger’s opinion in Marsh v. Chambers “deeply embedded in the history and tradition of this country.”  When buildings and monuments are erected should not be, from an Establishment Clause perspective, decisive.”

“Civic friendship and prudence should inform decisions about the use of religious symbols today.  America is far more diverse than it was 100 years ago, so it would be inappropriate for a government to erect a massive cross to honor U.S. military members from different faiths. On the other hand, it is both constitutional and fitting to include crosses, stars of David, and other religious symbols in the 9/11 Memorial. The Establishment Clause does not require a religion-free public square, no matter how many times the Freedom From Religion Foundation insists that it does.”

You can read the full article here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790