Religious Objects as Legal Subjects

Abstract

Courts have repeatedly struggled with issues raised when the government displays religious objects and symbols or such objects are displayed by others on government property. Cases have involved objects such as Ten Commandments displays, creches (nativity scenes), Latin crosses, menorahs, and Christmas trees. The results in these cases, especially in cases decided by the United States Supreme Court, have been the subject of a great deal of criticism. The criticism has often focused on the desacrilization of religious objects or on the failure to evaluate the impact such objects have on religious outsiders. This article asserts that the courts and those criticizing them have generally overlooked or undervalued the significance of treating religious objects as legal subjects in the first place.

Religious objects and religious symbolism generally do not lend themselves well to analysis under any of the legal tests developed by the Supreme Court, but of course, courts do not have the luxury of ignoring issues related to religious symbolism when such issues are appropriately raised by parties. Nor should they. Both the courts and their critics would face an easier and more fruitful task if they more carefully considered the objects addressed in religious symbolism cases.

When a court evaluates a case involving religious objects it must subject those objects to the prevailing legal rules, norms, and analysis. It thus makes them legal subjects. This creates interpretive problems because of the potentially varied symbolic meaning of many religious objects and the various messages such objects can hold for various groups. It also raises questions regarding the nature of "religious objects" since many symbolism cases involve objects that courts suggest exude varying levels of religiosity depending on their context, and which some critics suggest may or may not be perceived as religious depending on the perceiver's interpretive presumptions. This article directly confronts these concerns and provides a workable framework for addressing the interpretive difficulties raised when courts must treat religious objects as legal subjects.