An instructive lesson on where the line should be drawn between church and state is about to be played out in Salem.
As to exactly what the lesson teaches, we don’t know yet, because we don’t know how the story ends. But we know it starts like this:
Two years after the terrorist attacks of September 11, 2001, the Old Virginia Brick Company in Salem acquired two steel beams that connected the 33rd to 36th floors of the North Tower of the World Trade Center. The company used them to erect a memorial in front of its building on West Main Street. In the years that followed, this structure, although on private property, acquired a certain iconic status as the venue for various public events of a patriotic character.
Now the business has closed and the memorial has been donated to the town of Salem, which intends to move it to a suitable location yet to be determined, but likely a fire station.
As soon as it became known, the Wisconsin-based Freedom From Religion group sent a letter to Salem, informing them that if the city is free to erect the memorial, it must remove the plaque affixed to the base.
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This plate, you see, has a verse from the Bible and other references to the Almighty.
“It is inappropriate and unconstitutional for any government entity to display a religious message because it expresses the government’s preference for religion over non-religion,” wrote group lawyer Patrick Elliott.
But is that really what’s going on here?
Of course, a government cannot go out and erect a monument with a religious theme. This would clearly violate the First Amendment injunction against an “establishment of religion.” Likewise, the government cannot engage in a sleight of hand where a group donates a religious themed marker to be installed on government property. We experienced this many years ago with the Ten Commandments complaint on the wall at Narrows High School.
But is it different? On the one hand, the Bible verse and accompanying references to God are not at the center of the memorial, they are simply part of it. On the other hand, it is an existing memorial that has existed for a dozen years and has become a kind of historical site in its own right. If there was a Bible verse carved into the corner of the Mona Lisa and someone wanted to give the painting to Salem, should the city erase the scriptures? Or could he accept this intact as a historical artifact?
The Freedom From Religion group is absolutist. “A religious plaque that accompanies a monument. . . is unconstitutional, ”he said.
We asked the American Civil Liberties Union of Virginia and got a more nuanced response from Executive Director Claire Guthrie Gastañaga: “Here is the legal test that would be applied by a court if asked to consider this situation: the question is whether a reasonable person familiar with the facts and circumstances would view the placement of the memorial on public property as an endorsement of religion by the government. A court considering this issue would consider all of the circumstances, including details about the monument itself (how central is the biblical quote, what exactly is the quote, what else is depicted); where it is placed (in front of a courthouse, in a public park, alone or with other displays surrounding it); and the circumstances surrounding the donation by the company and its acceptance by the city.
Different people can read this in different ways, of course. And there are different ways of looking at the plaque in the context of this memorial.
First of all, you can argue that the plaque is irrelevant. No one comes to see the plate; what they come to see are the steel girders of a tragic historical event.
This argument, however, can go both ways. If the plaque is irrelevant, then what is cited does not matter. However, if the plate is irrelevant, then there should be no problem replacing it either.
However, you can also say that the plaque is extremely relevant – as a historical element. Yes, he quotes from Psalms, and quite widely too. It’s not just a quote to be pretty and poetic, as some of Shakespeare’s lines might be. There was clearly a religious motive in citing the 16 lines – and further noting that “its contents.” . . is so appropriate ”and that“ we humbly offer this prayer. . . “
By accepting this memorial as his own, is Salem embracing and approving this message? Or does this memorial simply show future generations a historical glimpse into the reaction of private citizens to an attack on their country? Freedom From Religion appears to anticipate this argument and attempt to undermine it, noting that the plaque “is only 12 years old,” apparently not long enough to acquire a distinct historical status.
We also interviewed the Rutherford Institute, a Charlottesville group involved in religious freedom issues across the political spectrum. Unsurprisingly, we had a very different interpretation. Here is what President John Whitehead said: “The City of Salem would not violate the First Amendment Settlement Clause by accepting the Old Virginia Brick 9/11 Memorial and placing it on public property. The fact that the monument includes a verse from the Old Testament psalm would not in itself prevent the City from exhibiting the Memorial in the public domain. In 2005, the Supreme Court, in allowing an exhibit of the 10 Commandments to be maintained on the Texas State Capitol, ruled that simply having religious content or promoting a message consistent with religious doctrine no ‘did not go against the establishment clause.
He gives a longer legal analysis, in which he concludes: “Considering all the relevant factors, it seems almost certain that the monument would not be considered an unconstitutional endorsement of religion. . . The display of the original intact memorial is no different from the display of works of art with religious messages in public museums, a practice the Supreme Court specifically ruled does not violate the establishment clause.
We have both his full review and the entire Freedom From Religion letter on our website. Read them both and let us know what you think. We suspect Salem might do just that, as long as he is prepared to face the inevitable lawsuit, whose lawyers could be enriched with dollar bills bearing the caption “In God We Trust.”