If it’s wrong to have a large cross on Sunrise Rock in the Mojave National Preserve, then it must similarly be wrong for a prosecutor to wear a cross, proportionately smaller, around her neck while trying a case before a jury. Not necessarily. Via Eugene Volokh, the issue arose in a California case, People v. Morris, where the defendant challenged a small silver cross worn by the prosecutor as crossing the line.
Morris claims the trial court deprived him of a fair trial by allowing the prosecutor to wear the cross. Although in a hypothetical case the constitutional issues could be grave, we conclude that on the record before us Morris’s right to a fair trial has not been compromised. Nor do we find on these facts a violation of the establishment clause of the United States Constitution….
The court quickly distinguished the clerical collar cases, noting that it was the conferral of authority and ascription of credibility that came with the collar that made it improper. On the other side, the court distinguished cases involving public employees in not prosecutorial roles, where their free speech rights weren’t balanced against a defendant’s right to a fair trial.
We agree with defendant that the Constitution preserves the religious neutrality of the courtroom and it may be necessary to restrict some exercise of the First Amendment to avoid violating the establishment clause. We also believe that because the prosecutor is, in the eyes of the jurors, the personification of the state, we must be particularly sensitive to a defendant’s claim that any religious adornments have the potential to cross the fuzzy line between the free exercise and establishment clauses of the First Amendment.
To its credit, the court recognized that the claim warranted constitutional scrutiny. It could easily have just sloughed off the argument as frivolous, or simply ignored it as unworthy of the court’s attention. It didn’t. But the court ruled:
[The trial judge] found that the cross was small in size and barely noticeable. She believed any message the cross might convey was ambiguous, as the slender silver cross could be construed equally as a fashion statement or as a religious symbol. Morris does not contest the factual findings of the trial court.The upshot is that the propriety of the prosecutor wearing a cross was dependent upon it being “small in size and barely noticeable,” suggesting that a larger cross, or a gaudier one, would have cause a different result, and that its message was ambiguous, that it could have been construed as a fashion statement. Rather than draw a doctrinal distinction between an individual wearing a symbol of personal faith, the court chose to nibble at the edges.
As a result, we do not believe the prosecutor’s small cross compromised the fairness of the trial in this case, and we are unwilling to restrict a lawyer’s First Amendment right to wear a small piece of jewelry the trial judge barely noticed and found unlikely to influence anyone who might have seen it….
A subtle but hugely significant distinction in the application of the Establishment Clause is that a line can be drawn between actions attributable to the government, as a secular institution, and the individuals who make up the government, whether by election to office or employment in a governmental function. By dint of serving the government, no one is expected to abdicate their faith, virtue and personal morality. Indeed, these are the qualities that draw us to many of the people we elect, for better or worse.
We understand that the religious faith of each individual person who fulfills a governmental function is a personal reflection, however, and not one ascribed to the government. We have people of all faiths, and no faith, working in governmental roles, and we recognize that there is no religious litmus test for service to a governmental entity. To the extent they wear a cross, or a star, or any other religious symbol, it’s a personal reflection and nothing more.
The people who make up our government, as opposed to the government itself as a secular institution, retain their personal right to believe as they wish, and express their personal belief to the extent is doesn’t alter or impact the performance of their secular responsibility. The question, then, becomes whether by wearing a cross, does a prosecutor convey a message to a jury that her faith would preclude her from prosecuting an individual who was not guilty, thus putting the weight of her religious beliefs behind her prosecutorial stance, and give the jury a religious reason to side with the prosecution. If so, then this expression of faith interferes with her ability to perform her governmental function.
So is a cross just a piece of jewelry, of ambiguous significance? That’s ridiculous. Granted, some people wear a cross as a fashion statement of sorts, but to leap to the Madonna Louise Ciccone exception strains reason. The vast majority of cross wearers do so for the plain and obvious reason: to signify that they are Christian. It’s nonsensical to rule based on the particularly small tail than the very large dog. And it’s because the dog is so large that it’s also unnecessary.
Many individuals wear symbols of their religion or faith around their neck. We see it all the time, interacting with these people, dealing with these people, relying on these people. We know these people. And we know that the mere fact that they have a religious symbol hanging around their neck doesn’t mean that they are any more Godly than anyone else.
Our experience allows us to not be blinded by the wearing of a cross to jump to the assumption that they adhere to the tenets of their religion any more or less than anyone else. Indeed, defendants commonly wear crosses, and carry bibles, when they are on trial, and yet they still get convicted. We know that the mere wearing of a cross isn’t a substitute for conducting ones life in accordance with religious teachings or tenets. We know better.
Whether the cross is large or small, simple or showing, is more a fashion statement than a indicia of the depth of belief or the noticeability of its significance. I’ve seen many a religious symbol on an alleged drug dealer that can been seen from half a mile away, and it has yet to demonstrate their salvation to the jury’s satisfaction. If anything, it’s proof that they have far more money than taste, and is rarely a good thing for someone accused of drug dealing.
By wearing a cross, the prosecutor in Morris did nothing more than express her personal connection of some greater or lesser degree to a religion. It offered no suggestion that her performance of her prosecutorial function was endorsed by God or imbued her with some priest-like adherence to the tenets of her religion. Ironically, because of the number of Christian faiths, it might well have served to prejudice her in the eyes of other Christians, who ascribe the wearing of a cross to Roman Catholicism, for those who find certain Christian faiths troubling because of conflicts with their own Christian beliefs.
The doctrinal line between establishment by the government and individual expression shouldn’t be based on such spurious factors as size and gaudiness. While the Morris court was correct in its result, it took the path of least resistance to get there. rather than confront the larger issue of where to draw the Establishment Clause line.
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Not just a larger issue, but also — at least apparently in the opinion of the courts, which ruthlessly slay many trees in issuing opinions — a more difficult one.
Me, I’m personally comfortable with where the court drew the line here, but less so how. There are other things than crosses that somebody might wear out of religious faith. I don’t know any Lubavitcher prosecutors, say, but the manner of dress (and hairstyles) of both the men and the women is distinctive. Would it be improper for a guy Lubavitcher prosecutor — whose religous faith surely would prohibit him from prosecuting a guy he thought wasn’t guilty, I would hope — to suggest that by not hiding his tzitzis? Or the Sikh prosecutor? I don’t think it would be, but I don’t think he, or the woman Christian prosecutor, with her cross, should be prohibited from doing their job because in their view of their religious faith, they’re supposed to dress this way or that.
Of course, I would likely feel differently about Reverend Bob, of the Church of I Wouldn’t Prosecute the Bastard if He Didn’t Do It, wearing his sacramental t-shirt.
Actually, I have to disagree again. There’s a lot going on in this one.
You’re right of course that it’s certainly a bad idea – tactically – for a defendant, or the defendant’s lawyer, to wear any sort of religious symbol. But the same would not necessarily be true for a prosecutor.
It’s because the double standard is so pronounced. If the defendant smiles, it’s a sign that he’s flippant and evil. If he doesn’t smile, it’s a sign that he’s sullen and mean. If he talks freely to others in court he’s unconcerned and arrogant. If he doesn’t talk freely he’s aloof and conscious of guilt. If he doesn’t wear his religion on his sleeve it’s because he doesn’t have any, being a guilty, heathen criminal. If he does, he’s a hypocrite trying to use religion to “get off”.
But the prosecutor’s presumptions are all the other way. He is righteous unless he really screws up and proves otherwise.
He already has all the advantages and the backing of the state. He doesn’t need, and ought not be allowed, to claim the mantle of the Almighty as well, particularly in the powerful but subliminal fashion of adorning himself with symbols, even if they are small and “barely noticeable” – which, by the way, I don’t buy for a second.
That’s okay. You’re allowed to disagree.
The Lubavitcher prosecutor presents a very interesting question, somewhat closer to the clerical collar than the cross. On the other hand, my guess is that there aren’t enough jurors who appreciate some cool tzitzis to make it a good bet. As I drove my daughter through Williamsburg one day, she remarked, “wow, those are really cool hats.” I explained that she wouldn’t get to wear the really cool hat, but would have to shave her head and wear a wig. She decided that it wasn’t for her.
This reminds me of a series of interesting NY Times column that Stanley Fish did some time within the past two years, where he suggested that our conception of separation of church and state only really works when you’re dealing with a religion that also recognizes the public private distinction, i.e., Protestantism, as opposed to the Sikh or Lubavitcher, who aren’t going to just wear their turban or tzitzis at home.
I agree in principle. Down here in Texas, however, I find the idea of a prosecutor wearing a cross stomach-turning and a little scary. There’s a branch of Christianity down here that has a lot more to do with the KKK than anything spiritual, and people respond reflexively to it’s symbols. Such symbols are often used more like military rank authority which somehow allows the worst behavior.
I come from a family of pastors from Minnesota. It’s hard for me to imagine something more hypocrticial than being a prosecutor while wearing a cross. But that’s just me.
Those are just some easy-to-spot examples. Mainstream male Orthodox Jews, for example, do wear kippot out in public — it’s not just for haredim; practicing Baptist women dress modestly in public, as their tradition and personal views dictate what “modestly” means; Mormons wear “garments” — which, granted, the rest of us don’t see; Hindus wear a pottu; some Muslim women wear an abaya, chador, burka, hijab, niqab etc. etc.
By and large, I’d rather that courts avoid getting involved in balancing this sort of stuff, and sorting it, but when it starts to impinge on the right of a guy to get a fair trail, the right of somebody who has to be in court to do their job to exercise their own freedom of religion while doing so, or even the apparently intensely important right of a judge to run his or her courtroom as he or she sees fit within some limitations*, I don’t see any good way for them to duck the issues.
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* Few people — including me — would have a problem with a judge saying that, say, wearing a beanie or a Hedy Lamarr-style turban as a fashion statement isn’t going to be allowed in his court; lots of folks, including me, would have a problem with that same judge requiring an Orthodox Jew to remove his kippa or the Sikh his turban
because he’s unfond of such garments.
Ironically the cross may have prejudiced jurors who think about things, of any religion IMO, by reminding them of an awkward fact. Jesus Christ was a friendless defendant. Not a prosecutor.