Seventeen hundred years ago, Constantius II, leader of the newly-Christian Roman Empire, removed from the Senate Curia an altar to the Goddess Victory. Spoils of an earlier war, it had inhabited the House since the last days of the Republic. Rome’s polytheistic elements associated the altar with the Empire’s quick rise — nevermind its pending fall — and, though unsuccessfully, fought its removal bitterly.
Set aside the faiths of the parties to the dispute — there’s something particularly noxious about pulling a piece of antiquity from a place of reverence. Like covering a partially nude statue, it’s a denial of history, and kind of pointless, too. Through the passage of time, art acquires meaning independent of its original nature — by the time it was removed, the Altar of Victory wasn’t a pagan icon. It was a Roman icon.
Accordingly, even if Kennedy writes the opinion too broadly (as he often does), I find it hard to worry too much about Salazar v. Buono, No. 08-472 (Apr. 28, 2010) (pdf), decided yesterday. Separating the case from the procedural morass that forms the real substance of the dispute — and recognizing that this is not, in fact, a final decision on the merits — Salazar is “about,” politically, a cross, privately built and maintained, and situated on federal land, to honor soldiers who perished in World War I. As noted, the real issue in the case is a complicated question of procedure, but the Court’s resolution of it leaves the cross intact, while the contrary conclusion would’ve pulled the cross down, as a violation of the Establishment Clause.
In deciding the procedural question, Kennedy makes almost passing mention to how he’d resolve the Establishment Clause question, were it squarely before him, of whether a private monument, in the form of a cross, placed on federal land, ought to violate the Establishment Clause. He focuses on the monument’s antiquity:
Time also has played its role. The cross had stood on Sunrise Rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness.
It’s foolish to say that such monuments ever truly lose their religious context. A cross is a cross. But it’s also foolish to equate this case with that of a hypothetical monument, built yesterday, amidst a background suggesting it was built to convey a message of exclusionary religious endorsement. Such facts are nowhere indicated here, and if they were seventy years ago, they’ve long since lost their sting.
Time does, indeed, play its role, by changing the posture of any controversy. Building a monument is an affirmative act; maintaining it, in this case, is a passive one, and one taken as much in defense of history, as in defense of any particular faith. Why tear it down? Because people in the past used to be Christian, and used to have the government’s ear? They were, and they did, but these aren’t facts we have to run from. And if we do, are we really rectifying an offense, or perpetrating our own?