Ted Cruz’s newest ad to Iowans focuses on his defense of the ten commandments and a cross as evidence of his “religious liberty” bona fides. Here’s the rub: Cruz’ success defending the placement of the ten commandments on the Texas state capitol grounds and a cross on federal land in the Mojave desert were both based on the argument that they were predominantly non-religious displays.
How does this work, you ask? Well. Although the Right often accuses the Left of pretending the Bill of Rights doesn’t exist, there are a couple of constitutional clauses that conservatives have worked very hard to minimize. For example, the “establishment clause” of the First Amendment. No, not the guarantee of religious liberty that each GOP candidate shouts from the rooftops (a-la Kim Davis), but the equally important language that ensures that the government does not by law either establish an official religion, or prefer one religion over the other.
In the Ten Commandments case, Van Orden v. Perry, Cruz as Texas Solicitor General argued before the Supreme Court that the ten commandments monument was gifted by a secular organization and surrounded by a number of other symbols on the Capitol grounds, in a “museum-like” setting, such that the commandments would not be considered as an (unconstitutional) government endorsement of religion, but rather a message about civic morals.
In the cross case, Salazar v. Buono, where Cruz’s involvement was limited to a “friend of the court” brief on behalf of a number of veteran’s organizations, he used Van Orden to argue that the cross should remain on federal land because the cross carried less of a religious message than the ten commandments:
“The context and history of the Ten Commandments monument in Van Orden suggested that the State “intended the nonreligious aspects of the tablets’ message to predominate” by conveying “an illustrative message reflecting the historical ‘ideals’ of Texans . . . . Here, it is even clearer that the Memorial’s predominant message – to commemorate American war dead – is secular because similar monuments are used for similar purposes throughout the world.
Cruz and others seeking to uphold the placement of the cross argued that the cross is a non-religious symbol commemorating war dead, which lead to a now infamous exchange (by court-watchers at least) between Justice Scalia and a lawyer for the ACLU, where Scalia seemed incredulous at the notion that a cross was a symbol that only honored Christians, with the ACLU lawyer responding “there is never a cross on a tombstone of a Jew.”
Well, this is politics. All candidates are talking half- and three-quarter truths (some more, some less). But perhaps a candidate running on a platform of constitutionalism and religious liberty should at least be intellectually honest about religious liberty “victories” that were in fact argued by minimizing the religious content and meaning of the symbols he sought to protect.