Christmas came and went this year with what seemed, mercifully, like less than the usual yuletide clamor over menorahs, crèches, and Christmas trees. There was, to be sure, some controversy here and there, but for the most part the holidays were marked less by heat than by warmth. Welcome as that relief may be, however, it should not obscure the regrettable fact that the relentless secularization of public life continues unabated.
Take, for example, an incident unfolding in Williamsburg, Virginia, at the College of William and Mary. The College, founded by British royal charter in 1693, is the second-oldest university in the United States. Its campus boasts the magnificent Wren Building, reputedly designed by England’s greatest architect, Sir Christopher Wren. Within the building, there is a gorgeous, walnut- and pine-paneled chapel, with an altar that has been graced for decades by a simple brass cross.
Until, that is, October of 2006, when Gene R. Nichol, William and Mary’s newly appointed president, ordered its removal. Nichol made the decision unilaterally, without consulting students, faculty, or alumni, and now admits that he “acted too quickly.” He moved with such haste, he later explained, because he feared that the Cross “sends a message that the Chapel belongs more fully to some of us than to others.” Even though the Cross could have been removed on request, its presence could give the impression of institutional favoritism, leading some to believe that “there are, at the College, insiders and outsiders.”
This line of reasoning bears the unmistakable influence of former Supreme Court justice Sandra Day O’Connor, whose major contribution to church-state thinking centers on her concept of endorsement. (That Nichol would invoke O’Connor is not particularly surprising; O’Connor is the new Chancellor of William and Mary, and Nichol — a former law dean — has praised her work in glowing terms.) “Endorsement,” according to O’Connor, “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Nichol’s decision to remove the Wren Cross obviously relies on O’Connor’s logic, at times even borrowing her specific turns of phrase.
Unfortunately, the “endorsement test” has proven itself a decidedly unhelpful legal criterion. It is indeterminate, bordering on arbitrary, because it focuses primarily on subjective perceptions; its first consideration is not how the law actually treats people, but rather how people feel they are treated by the law. Taken to its logical conclusion, the endorsement test leads to the rule of the perpetually aggrieved, a tyranny of the easily offended. O’Connor herself was forced to confront this unpleasant reality when Michael Newdow claimed, persuasively, that the inclusion of the words “under God” in the Pledge of Allegiance amounted to a governmental endorsement of religion. Unwilling to face the logic of her principle, O’Connor hedged. Evidently some endorsements of religion are more equal than others.
So too with the Wren Cross. A strict application of the endorsement test would require not just a stripping of the altar, but a shuttering of the chapel. After all, if the presence of a Cross in the chapel signals that non-Christians are less than full members of the community, then the presence of a chapel on a public campus must similarly signal that non-believers are somehow outsiders. Again, some endorsements of religion appear more equal than others.
But the non-endorsement principle is, if anything, made even worse when it is taken out of the courtroom and adopted as an administrative rule of thumb. It leads administrators like Nichol to make unpopular and unnecessary decisions, based solely on a nebulous impression that offense must somehow be taken. (Needless to say, that impression need not be encumbered by anything so trifling as evidence.) Such was certainly the case at William and Mary. A review of documents under Virginia’s Freedom of Information Act has revealed that Nichol received exactly one letter of complaint about the Wren Cross. In contrast, over 10,000 people have signed an online petition seeking its restoration.
The controversy at William and Mary is one of Nichol’s own creation, based on vicarious offense taken in the service of arbitrary principle. He would have been better served to heed the counsel of O’Connor’s former colleague, the liberal Supreme Court justice Stephen Breyer. Breyer has recently come to understand that, whatever else may be said of the matter, the Constitution intends to diminish the possibility of religious conflict. Those who needlessly disturb the peace are thus at direct odds with its purpose; tearing down long-established religious symbols is therefore as unacceptable as needlessly erecting new ones. To be sure, Breyer’s idea leaves much to be desired as a legal principle. But, as a practical administrative rule of thumb, it makes a great deal of sense, offering us all a moment of relief, as welcome and rare as a quiet Christmas.
– Former House Speaker Newt Gingrich is a senior fellow at the American Enterprise Institute and author of Rediscovering God in America. Christopher Levenick is the W.H. Brady Doctoral Fellow at AEI.