And then I did it. I made the sign of the cross in the air, over and over. I had no choice.
Colm Toíbín, The Sign of the Cross: Travels in Catholic Europe

It is the dream of modern secular law to occupy all of the space of law—as a universal language—that is, to thoroughly comprehend, to transparently express, and to rationally rule what it is to be human. Modern law—the rule of law—understands itself as the sign of the human. Religion is law’s rival in this project, notwithstanding law’s effort to particularize and subordinate it. Religion, too, seeks to comprehend, to express, and to rule the human—and, in its turn, to subordinate law.

I will consider these rival claims to the human in the context of two recent legal rulings about public display of crosses. It is arguably the material presence of the divine—the icon—that most confounds law.

In each of the legal rulings, impassioned complaints were made about the presence of crosses on public property. One decision allowed continued display of a century-old WWI memorial cross in a traffic circle in suburban Maryland; the other ordered century-old swastikas decorating wall tiles on halls at Indiana University to be removed.1There have been many other recent cross decisions in the United States and elsewhere. See, e.g., Lautsi v Italy (European Court of Human Rights). It is easy to deplore the well-meaning but flat-footed positivism of the legal reasoning in both of these cases. It is less easy to articulate the alternative to such an approach. What would it mean to take the cross’s persistence seriously as something other than a sign of white supremacy?

In the Maryland case, the Supreme Court majority found the cross to have been secularized by time; the cross, they said, honors the sacrifice of the soldiers who died rather than standing as a sign of Christianity. The dissenting justices asserted that the cross could only be understood as exclusively Christian in its import. The remedy proposed by those challenging the presence of the cross suggested “removal of the arms from the Cross to form a non-religious slab or obelisk.” Their plea, like each of the opinions of the Court, reflects a legal language that assumes a bright line between those objects that are religious and those that are secular. Law’s speech, assumed to be the speech of the human, secularizes when it interprets the objects before it, permitting the continuation only of that which has been neutralized.

In the Indiana case, the crosses were swastikas embedded in hallway tiles of a university building. Research was unable to determine much about the original purchase of the tiles but the timing of their installation suggested that the tiles, predating the Nazi regime, were a typical Orientalizing decorative element of early twentieth-century American buildings, borrowed, it seemed, from an array of earlier cultural depictions. The announcement of the university’s decision described it thus:

The swastika has a rich, long, and fraught history. The symbol was and is still used by Hinduism, and can be seen commonly in India. It featured in the ancient world in Buddhism and Jainism as well, and in Scandinavia in Odinism, to symbolize Thor’s hammer. It was used on coins in Mesopotamia, and by the Mayans and several of the Southwestern Native American tribes, most notably the Navajo in the Americas. Most of its use was religious; some was traditional; some decorative. Around the time these tiles were installed, the swastika’s use in a decorative manner had become a something of a fad in the United States as a symbol of good luck. It was used on everything from Coca-Cola bottles to Carlsberg beer, and by organizations as diverse as the Boy Scouts and the Girls Clubs of America.

Concluding that, notwithstanding the complexity of this all-but-the-kitchen-sink history, the offense experienced by complainants justified their removal, the tiles have now been altered to depict a more neutral design. Rather than lop off the arms as proposed in the Maryland case, additional arms were added to close the gaps. Again, law speaks for the human and excludes the religious.

We are taught today to read legal opinions about religion as nothing more than the thinly veiled throwing down of gauntlets in a zero-sum partisan game, one in which we already know what things mean. In this scheme, conservatives are for crosses and liberals are against them. Is that enough? Are we avoiding the hard questions religion poses?

What are crosses? Can crosses—can the cross—be a sign of the human? What would that mean for law?

Historians tell us that use of the cross to mark the presence of Christians in the first centuries of the common era was not uncontroversial—and it changed over time. For many early followers, death by crucifixion was not of itself revelatory but was a scandal. It took centuries of interpretive work to reconceive the cross as a symbol of salvation. Part of this work included re-imagining the cross as universal—as cosmic—a simple geometrical shape found everywhere in nature and in culture—the intersection of two lines. As a recent book about the history of the cross in Christianity explains, it was the universality that permitted its particularity, not the other way around. The cross came to be understood as preceding and prefiguring the Christ. In other words, those who study the cross see a deeply ambiguous and shifting symbol, one not easily reduced to either religious or secular.

For all of the justices in the Maryland case, those in the majority and those in dissent, as well as for Indiana University, universality—the capacity to represent the truth of the human, not just the truth of Christians—depends on the evacuation of religious meaning by law. Justice Samuel Alito silences the cross by secularizing it. Justice Ruth Bader Ginsburg wishes to silence it by removing it. Indiana University silences it by defacing it. Is there an alternative?

This is not a new problem, of course, either for US law or for law more generally. Tidying up public places so that they convey a politically dominant ideology has been and is being tried. In the Reformation. In the French Revolution. In the Bamiyan Valley.

Joseph Koerner, in his massive and learned book on the iconoclasm of the Protestant Reformation, argues that art itself changed in the Reformation. Paintings, he says, became depictions of ideas not of the things themselves. Sitting astride history, the Reformation is seen as the mark of the modern, outlawing presence in religious imagery, now the handmaiden of law.

A version of Koerner’s thesis appears as a chapter in the museum catalog for Iconoclash, a 2002 exhibit about iconoclasm in Karlsruhe in Germany. It is an interesting contrast. The monograph version, in its self-importance, announces the beginning of modernity in sixteenth-century Europe. As one of sixty-six chapters that ranges across world history, however, the same reformation is relativized by the seeming omnipresence of iconoclasm. In his introductory essay to the Iconoclash catalog, Bruno Latour explains the purpose of the exhibit: “It attempts to suspend the urge to destroy images, requires us to pause for a moment; to leave the hammer to rest . . . Instead of iconoclasm being the meta-language reigning as master over all other languages, it is the worship of iconoclasm itself which, in turn, is interrogated and evaluated.”

Again then. What would it mean to interrupt the iconoclasm of modern law and challenge its claim to represent the human?2Ridding law of images has been partially attempted through various projects of codification—including the codification of human rights. See, e.g., Robert A. Yelle, “Bentham’s Fictions: Canon and Idolatry in the Genealogy of LawYale Journal of Law & the Humanities 17 (Summer 2005): 151. On the aesthetics of modern law, see also Benjamin Berger, Law’s Religion, David and Jaruwan Engel, Tort, Custom, and Karma, and Peter Goodrich, Oedipus Lex. What would it mean to stop worshiping iconoclasm? That is, in Latour’s words, to let the legal hammer rest—to contend that the human can survive, if it will, without its universal protection? Or, to put it in US constitutional terms, is it possible to take religion’s materiality seriously without establishing it?

*     *     *

The quote at the beginning of this short essay is from a 1994 book entitled The Sign of the Cross by Irish writer Colm Toíbín. He describes his tour around Europe visiting Catholics and Catholic places. With a deeply ambivalent view of the Catholic piety that saturated his own Irish childhood, he finds himself inhabiting a space somewhere between the Catholicism he has long abandoned and the alternatives that have replaced it. This sentence occurs at the end of a chapter in which he describes his experience when a psychiatrist friend induces him to undergo a trauma therapy weekend in which he is induced to relive the death of his father when he was a young boy.