The Cross National Memorial: At the Intersection of Speech and Religion

Abstract:     
This Article was written for a Government Speech Symposium hosted by the Case Western Reserve Law Review. Invited to reflect on the Establishment Clause ramifications of the expanding “government speech” defense to Free Speech Clause claims, I used two frames.

The first is Justice Souter’s parting speech on this subject. He suggested that the government may have a successful, even “sound” argument that the government speech doctrine allows it to discriminate among religious groups when expressing its own views. Justice Souter thus left us with a puzzle, given both his own history of championing religious neutrality, and the Court’s statement in Pleasant Grove v. Summum that the Establishment Clause is one known limit on government speech. This Article parses his potential meaning using a series of hypotheticals to illustrate the anticipated, post-Summum clash of doctrines.

Second, Salazar v. Buono, a convoluted Establishment Clause case, included an under-analyzed act of religiously themed government speech: Congress’s 2002 designation of the challenged Mojave Cross as a “National Memorial” commemorating World War I. One unique contribution of this Symposium Article is new research on: (i) the overlooked, pre-existing WWI national memorials; (ii) the surprisingly ad hoc general process for creating new National Memorials; and (iii) the strange circumstances of the Mojave Cross designation.

This surprising backstory also provides a good platform from which to explore Justice Souter’s conundrum. Examining the hypothetical where an equally historic WWI memorial is rejected as a National Memorial helps test the impact, if any, of Summum’s expanded government speech model. This Article concludes that its Establishment Clause effect is incremental and, in a somewhat circular fashion, also reprises forum limitations.

Number of Pages in PDF File: 40

Keywords: Summum, Buono, Establishment Clause, National Memorial, Mojave, Souter, Government Speech, Cross Memorial, War Memorial

Accepted Paper Series