The cross atop Mt Soledad, in LaJolla has been in place since 1954 but it has been the subject of controversy and continuous and tortuous legal wrangling since at least 1989, when two atheists and the “Society of Separationists” sued in federal court claiming that the cross violates both the U.S. and state constitutions.1
The History of the Controversy
The Federal District Court for the Southern District of California ruled in favor of the complainants in 1991. The next year San Diego voters approved the sale of the land to the Mt Soledad Memorial Association, a private entity. The wrangling has continued unabated since. The ruling upheld by a three-judge panel of the 9th Circuit. The full appeals court re-affirmed it the next year. The San Diego City Council voted to sell the property to the Memorial Association but the federal court that originally heard the case ruled that the sale was unconstitutional according to the California constitution. The San Diego City Council again voted to sell the property to the highest bidder, the Memorial Association. This time the original court and a three-judge panel of the 9th Circuit upheld the sale because the terms did not require the cross be kept but on appeal but another court ruled against the sale saying that the city gave the veterans group an advantage. In 2003, the Supreme Court declined to hear the city’s appeal. The next year San Diego voters rejected a proposal to sell the cross and the adjacent land to the highest bidder. Plans were made to move the cross to a nearby church. In 2005, a special election, citizens voted to donate the cross and land to the Federal Department of the Interior but a San Diego superior court ruled against the land transfer on the grounds that it is an unconstitutional aid to religion. In 2006, the original federal district court ordered the city to remove the cross but that order was blocked by US Supreme Court justice Anthony Kennedy and President Bush signed a law transferring the cross to the Defense Dept as a war memorial but several organizations challenged that law. The same year, a state appeals court overturned the superior court ruling. In 2008, the original federal district court (different judge, the original judge has retired) upheld the transfer to the Department of Defense on the grounds that the secular message outweighs the religious significance but that ruling was overturned, in 2011, by a three-judge panel of the 9th Circuit. The next year the Supreme Court refused to hear and appeal. This refusal essentially forced the original Federal District court to order the removal of the cross earlier this month. Of course, that ruling has been stayed because of an appeal by the Memorial Association. The publicity release does not specify to which court the appeal is being made but it would seem as if it must go to the 9th Circuit again and thence, the the USOC.
The Irony of the Cross
This is a remarkable history on several levels. The attempts to sell the land to a private party seem to be eminently sensible in principle but apparently bungled more than once. In Lemon v Kurtzman (1971) the court held:
- “The statute must have a secular legislative purpose”
- the “principal or primary effect” of the statute “must be one that neither advances nor inhibits religion”
- “the statute must not foster an excessive governmental entanglement with religion”
The court rulings against the sale reveal the weakness of the Lemon Test, which Justice Scalia has likened to a late-night ghoul. The attempts to sell the property were not obviously religious in nature. They didn’t, in themselves, advance religion and they didn’t foster excessive entanglement with religion except that the Lemon Test itself does nothing to forestall the endless series of complaints, judgments, and appeals.
Of course, the Lemon Test isn’t the Constitution. Remember, the establishment clause of the First Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….
It is reasonable to think that both Christians and non-Christians might not want to spend public funds on a massive (45-foot) Christian symbol but Michelle Malkin’s claim that the litigation against the cross represents a form a “cruciphobia” seems somewhat justified by the history of the case. By selling the property to a private interest, the problem of public entanglement with a Christian symbol would seem to be relieved but the complainants seem only to be satisfied with the destruction of the cross. This should trouble those Americans who value private property and freedom defined as the relative absence of governmental intrusion into our private lives. This should also trouble Americans who think that Christians may and should be active in the public square. It is one thing to argue, as I have done, that Christians should be relatively humble in their engagement in the public square. It is quite another, however, to say, in effect: “Get out, you don’t belong here.” We certainly do and there is nothing about the Christian faith or the public square that suggests that Christians must leave their faith at the door when they participate in public life. Christians vote. Christian pay taxes and are generally good citizens. Like everyone else, Christians have an interpretation of the meaning of reality. The Christian life is not a purely private matter. The faith entails a way of life, an ethic that has consequences for the way we live our lives in the public sphere.
With the American founders, historically Christians have believed that there is such a thing as nature—the Declaration does speak of “laws of nature and of nature’s God”—and there are divinely established norms revealed in nature (and therefore universally known) and in Scripture. When, for example, we appeal to nature against homosexual marriage, we’re not seeking a theocracy or imposing anything on anyone. Human beings are creatures. Therefore there are moral and physical limits to what we can and may do. If one think that all limits are purely human constructs then let him test that theory by jumping off a three-story building. The Christians no more invented human biology and sexuality than we invented the laws of gravity. Christians (and more than a few non-Christians) are simply recognizing the nature of things. There are males and females. That is fact that no amount of deconstruction can undo.
Nevertheless, this Christian is ambivalent about the Mt Soledad Cross. The cross is an established, generic grave marker. Before that, of course, it was an early Christian symbol associated with Christian suffering, and in the high middle ages it became a symbol of the European reaction to Islamic aggression and more in the crusades, but before the Christian use of the cross, it was a symbol of Roman power and oppression, so it has had more than one use and more than one message. So, the Christian appropriation of the cross has always been complex. From the beginning our embrace of the cross was intentional and ironic. After all, our Savior was unjustly murdered by Romans on a cross and yet, through the cross, what humans intended for evil, God meant for the greatest possible good: the salvation of all his people and his own glory.
Thus, it was with no little irony that the message of the cross was featured in both Jesus’ and Paul’s preaching. Our Lord himself defined the Christian life, discipleship, by the cross:
“If anyone would come after me, let him deny himself and take up his cross and follow me. (Matthew 16:24, ESV)
In characterizing the Christian life this way, he was foreshadowing something that the disciples would not understand until Pentecost. Sadly, these words have probably lost their shock value. When our Lord spoke them, however, they must have or should have struck like a thunderbolt. The Roman cross was a filthy, revolting sign of Roman political oppression and shame. That sense is reflected in Hebrews 12:2, when the pastor reminds his congregation, who were being tempted to turn away from Christ, that Jesus despised the shame of the cross. He did not despise the cross but rather he rejected the shame. He embraced the cross for our sake.
For Paul, the cross became a symbol of the power of Christ and his gospel. Through the cross, Paul wrote to the Colossians, God cancelled
the record of debt that stood against us with its legal demands. This he set aside, nailing it to the cross. He disarmed the rulers and authorities and put them to open shame, by triumphing over them in him. (Colossians 2:13-15, ESV)
The very thing that was meant to be instrument of destruction of Jesus and his followers became instead the symbol of salvation, hope, and new life. In its original context, however, we can can understand why those paleo-pagans whom Paul evangelized (in contrast to the neo-pagans whom we evangelize) considered the cross an offense:
For the word of the cross is folly to those who are perishing, but to us who are being saved it is the power of God.
Both Jews and the Greeks (the Stoics and the Epicureans) thought of religion as a means to power. The Christian message, however, was one of weakness. We worship a crucified Jew, who did nothing to prevent his execution; indeed he seemed to encourage it. The earliest post-apostolic critics of Christianity in the 2nd century mocked the Christians mercilessly for worshipping a crucified criminal. The Apostles taught Christians to live quiet and godly lives (1Tim 2:2). There is not even a suggestion that the apostles expected to transform Greco-Roman culture. They expected to suffer and prepared the Christians to suffer. The cross symbolized that relationship to the broader culture.
Secularizing The Cross To Save It
Christians and others understand instinctively (or through experience) that the increasingly neo-pagan culture in which we live is increasingly intolerant of Christianity. Part of this is due to ignorance—many Americans have had no meaningful experience of or education about Christianity. Take a poll on any major university campus about basic Christian doctrines and history and you will quickly find that the future decision-makers know nothing about Christianity. The only Christians they’ve ever seen have been on television and most of us would probably not select most televised Christians to do our PR for us.
It says something about where the culture is that the cross stood unmolested atop Mt Soledad from 1954 to 1989. That’s just about from the height of the Cold War to its end. During that period the church and Christianity were not as often prized for their intrinsic worth but rather for their social utility. The church and the faith were seen as bulwarks against an external atheistic menace. Meanwhile, back home, the culture (and too often the church with it) was grooming generations of atheists. What was only murmured in coffee houses in the 50s and 60s became outright hostility by the late 1980s.
One response by the defenders of the Mt Soledad cross, however well intended it be, has the effect of stripping the power of the cross by reducing it to a purely secular symbol. In order to save the cross they are removing its offense. Christians have good reason to worry about this strategy for saving the Mt Soledad cross.
Re-Scandalzing The Cross
In Galatians 5:11 Paul used some strong words for the Galatian Judaizers, those who would put believers back under the law (i.e., works) for acceptance with God. The Judaizers, he wrote, have “removed” the offense of the cross. They did so by attempting to add to it. If we are accepted by God for Christ’s sake and our obedience (even if that obedience is defined as “faith”) then, Paul says, Christ’s death has been made worthless. If the Judaizers think circumcision is so powerful then they should go the whole way and emasculate themselves. In our context, we could say to Judaizers of our day (e.g., the self-described Federal Visionists) that if they think baptismal water is so powerful why don’t they drown themselves?
The point in the present discussion is that the cross should not be tidied up for the sake of its use in civil life. That is too great a cost for Christians to pay. If the cross may be used in public life without emptying it of its religious significance, then I am content to allow the cross to be used for civic or public purposes. If the Mt Soledad cross is destroyed then it is hard to see how the same logic will not result in the removal of crosses from public burial grounds everywhere and, after that, the removal of religious symbols from any public (tax-funded) space. Will churches no longer serve as polling places? Where will this logic lead?
I suspect that it may no longer be possible, if it ever was, to have a truly Christian cross with a secular use. The attempt to drive Christians out of public life, whether through shaming (“how dare you say that x is sinful! You can’t say that!”) or in the name of tolerance, or through civil litigation is symbolic of more than the declining fortunes of Christianity. It signifies the last death throes of Christendom. When the Mt Soledad cross went up it was not, as far as I know, controversial but it became controversial. The cross didn’t move but the culture moved around it, as it were, at its feet. Some interpret the present hostility toward Christians in the public square as payback for the hubris of the fundamentalist forays into politics in the 70s and 80s. There may be some truth in that. It is reasonable to ask why resistance to Christian symbols (whether the cross or the decalogue) seems so much more plausible today than it did in nearly 60 years ago. Another part of the explanation may lie in shifting demographics. Rural and putatively more religious parts of the country are declining and urban areas are growing. Urban areas tend to be less religious and diversity is given a higher value. In rural areas, conformity and religion are more highly valued.
In all events, the cross should remain offensive. When Paul and the rest of the apostles preached the scandalous cross, there was a cost associated with being a Christian. This is why Paul wrote, in Galatians 6:12 that those who “make a good showing in the flesh,” who “would force you to be circumcised” do so “in order that they may not be persecuted for the cross of Christ” (Galatians 6:12, ESV).
Our culture may not yet be so anti-Christian that we feel this hostility regularly but the advance shock waves are palpable. In other parts of the world, however, there are not mere rumors of hostility. The Christmas season just past saw the wholesale slaughter of Christians in Syria (warning: the link is to a news story with graphic images of Christian persecution). Christians are suffering in the Sudan, in Egypt, and, of course, in China and in many other parts of the world. The (formerly) Christian West seems largely indifferent to the global suffering of Christians. That is also probably an indicator of the spiritual state of the West. Why should neo-Pagans care about what is happening to a bizarre death cult—which is how the Christian faith appeared to some paleo-pagans in the second century—on the other side of the globe? They have their own problems: their internet connection is really slow today.
That the cross remains controversial, however difficult it may make the lives of Christians after Christendom, is good thing. Let the cross be offensive for the reasons it should be offensive, rather than for the reasons it is too often offensive.
The Value Of Distinguishing A Twofold Kingdom
Above I sketched the history and current legal status of the Mt Soledad Cross and I indicated some ambivalence about that use of the cross. On the one hand, it seems clear that some opposition to the cross is less about “separation of church and state” (given the attempts to privatize the land on which the cross sits) and more about an attempt to remove the cross from public view. This animus is symbolic of the broader attempt to marginalize Christian speech and action (and speech and actions by Christians) from the public square. If the cross is still scandalous, that is a good thing. On the other hand, it appears that the cost of saving the public display of the Mt Soledad cross (and other public uses of the cross and other Christian symbols) will be to secularize it to such a degree that the cross must be shorn of its Christian significance. This is too high a price for Christians to pay. If we must make the unhappy choice between retaining a purely secular Mt Soledad cross or removing a cross with Christian signification, then we should choose the latter.
There is a way of thinking about this issue and others like it that I have found helpful. In his Institutes of the Christian Religion John Calvin (1509–64) wrote of God’s “twofold reign” or “double government” in the world:
Therefore, in order that none of us may stumble on that stone, let us first consider that there is a twofold government in man (duplex esse in homine regimen): one aspect is spiritual, whereby the conscience is instructed in piety and in reverencing God; the second is political, whereby man is educated for the duties of humanity and citizenship that must be maintained among men. These are usually called the “spiritual” and the “temporal” jurisdiction (not improper terms) by which is meant that the former sort of government pertains to the life of the soul, while the latter has to do with the concerns of the present life—not only with food and clothing but with laying down laws whereby a man may live his life among other men holily, honorably, and temperately. For the former resides in the inner mind, while the latter regulates only outward behavior. The one we may call the spiritual kingdom, the other, the political kingdom. Now these two, as we have divided them, must always be examined separately; and while one is being considered, we must call away and turn aside the mind from thinking about the other. There are in man, so to speak, two worlds, over which different kings and different laws have authority (1559 Institutes 3.19.15; Battles edition).
I understand that the term two kingdoms has become controversial. It seems to be as often misunderstood as it often used. Some critics suggest or claim explicitly that any distinction between one sphere and another in God’s providential rule over the world somehow diminishes his dominion. This way of thinking makes little sense to me. Others talk about “the two kingdoms” as if that phrase represented some monolithic analysis of Christ and culture. That too is quite false. Finally, some proponents of “two kingdoms” seem to think that it implies that Christians have no place or voice in the culture or political or common life of men. I reject this application of the distinction. To distinguish between two aspects of God’s kingdom is really just to ask a question: “How does God administer his sovereignty in this sphere?” It is one thing to ask a question, it is quite another to answer it and clearly, as people look for alternatives to early 20th-century neo-Calvinist approaches, they are arriving at different answers to the question.
One way forward might be two adopt a slightly different way of speaking about God’s sovereign rule over all things. We might do this on analogy with the traditional Reformed language about “the covenant” of God. Classic Reformed theologians frequently spoke about “the covenant” and then proceeded to distinguish clearly between the covenants of redemption (pactum salutis), works (foedus operum), and grace (foedus gratiae). They could speak of covenant and covenants, depending upon the context. There are moralistic versions of monocovenantal theology, e.g., those that conflate the covenants of works and grace but to speak of “one covenant” is not necessarily to subscribe the monocoventalism of the Shepherdites, the self-described Federal Visionists, et al.
I am not sure when but sometime back it occurred to me that Calvin’s expression is duplex regimen is translated in the Battles edition as “twofold government.” That seems right. When we translate the phrase duplex gratia Dei, we use “twofold” or “double grace of God.” This phrase summarizes Calvin’s doctrine that God’s grace both justifies and sanctifies, that progressive sanctification is a consequence of definitive justification. On this see Cornel Venema’s fine work. Olevianus used the phrase duplex beneficium, which I usually translate “twofold” or “double benefit.” Thus, we should probably translate Calvin’s phrase “duplex regimen” as “double” or “twofold kingdom” or “twofold government.”
In this case, two distinguish, as Calvin did, between two spheres of God’s government in the world, is hardly to deny his lordship or the Christian’s place in the world. There is one God who administers his government in two distinct sphere. The context of Calvin’s use of the phrase is his discussion and defense of Christian liberty. There were three great threats to Christian freedom in the 16th century: Romanist legalism, which attempted to bind the Christian’s conscience with innumerable man-made rules and obligations (e.g., the church calendar, five false sacraments, and submission to the Roman bishop), libertinism, and spiritualism. The libertines wanted to use Reformation as an opportunity to throw off human government altogether. There were also religious radicals who thought that the nature of the new covenant is such and we are so guided by the Spirit now that we no longer have any need for human, civil government.
In Institutes 3.19.9 he wrote of the spirituality of Christian freedom, of its close connection to the freedom Christians have from the curse of the law. Under Rome, we had been placed under a man-made law. We were in a sort of Babylonian Captivity. Others, of course, were abusing their newly recovered Christian liberty as an occasion to sin. In 3.15.10 he complained about those who make a show of their liberty, as though unless others could see them using it, they were not truly free. In 3.19.11, he worked through the question of how we may exercise our liberty in Christ without causing offense (scandal) and how we should avoid being bound by the Pharisees (e.g., Romanist legalists), whom he described as “supercilious.” In 3.19.12 he discussed the relationship between Christian liberty and the weaker brother. Obviously, he was meditating on 1 Corinthians 8. In the next section he reinforced the normative character of the moral law, the law of love to God and neighbor, as the limit of Christian freedom. In 3.19.14 he described the freedom of the conscience as that which Christ has purchased with his blood. As we come to the section before us (3.19.15), then, it is clear that his chief interest has been to account for Christian liberty.
In Institutes 3.19.15, he begins with with a warning that Christian liberty does not mean that believers are free from human government. That was the error of the libertines and the radicals. We are, instead, he wrote, under a “duplex regimen,” one spiritual, which forms “the conscience to piety” and the other is “political” or civil. In this aspect of God’s reign in human affairs, we learn “civility” and “humanity.” Remember, one of the earliest criticisms of the Christians by the Greco-Roman pagans of the 2nd century was that they were uncivil and inhumane because they distinguished between adhering to civil law, so far as Scripture and conscience permitted, and their religion. For the pagans there was no distinction. A good Roman citizen offered sacrifices or poured out libations and swore fidelity to Caesar and the gods. To refuse the Roman cultus made one “inhumane” or a “hater of humanity.” So, Calvin wants to make clear that though Christians are not “of this world,” i.e., the source of their spiritual life is not of this world nevertheless, we are very much in this world and that, in both spheres, we live under the lordship of Christ.
Calvin distinguished between spiritual and temporal aspects of this twofold reign. The latter refers to “the life of the soul” and the former to “the present state.” We might say that one his historical and the other eschatological. Our civil, common life together with unbelievers has to do with this life. The civil, common sphere has to do with external conduct. Calvin was quite pointed that they must be considered separately. They are distinct spheres. The gospel does not free us from obligation to civil obedience and our civil obedience does not intrude on the realm of conscience before God. For Calvin, Christian freedom is bound up with this distinction.
He recognized that Paul, in Romans 13, connected our obedience in the civil sphere to conscience. He characterized this aspect of conscience as an “additional witness” or knowledge of the divine justice which exposes our sins. In 3.19.16 he explained that our works respect men but properly our conscience “regards God.” There is a broad sense in which conscience respects the magistrate but strictly it has respect to God alone. The laws that govern civil behavior affect our conscience insofar as we regard them as being from God and we are bound to them even if there is no one else about. Nevertheless, there is an spiritual and interior aspect to conscience over which the civil sphere has no say.
What are we to make of Calvin’s twofold distinction in God’s government of the world and how does it help us think about the Mt Soledad cross? The first inference I would draw is that Calvin was manifestly concerned to protect the liberty of the Christian conscience. One of the concerns I have had about some forms of neo-Calvinism is that there seems to be a relatively low regard for Christian liberty. Having applied the adjective Christian to whatever endeavor is at hand, some neo-Calvinists seem have little patience for dissent as if it is self-evident what the Christian view of x is or must be. In that regard, we should be careful that we do not fall back into the medieval and Roman pattern of obligating fellow Christians with rules and practices that are not “good and necessary” inferences from the Word of God. Beyond the scope of the explicit teaching of Scripture and “good and necessary” consequences, Christians are free to disagree. In this is so, then I think Christians may reach different conclusions about the Mt Soledad cross. Another way to put this is to say that I doubt that we may speak of “the Christian” view of the Mt Soledad cross.
Another inference we might draw is that the ambivalence expressed in part 1 is inherent in living in these two spheres of God’s government of the world. This Christian life is a semi-eschatological existence. The consummate state, the kingdom of heaven or the kingdom of God, has been inaugurated in the earth and is manifested institutionally in the visible church and Christians, as citizens of that eschatological kingdom live out their Christian lives as citizens of the kingdom wherever they are, as they fulfill their vocations in this world. Nevertheless, the consummation is not yet. We live cheek-by-jowl with unbelievers who, in civil terms, have as much right co-exist in the civil sphere as we do. Thus, in civil life, we will necessarily have to make compromises that we cannot make in the spiritual sphere.
Finally, we are free to work out life in the civil sphere differently than Calvin did. Christians are free to seek to return to the Constantinian settlement but Christians are also free to dissent from the quest to return to Constantinianism. That (Constantinianism, the medieval church-state complex) is a view that Christians have held. It’s also a historical fact that it is a view that Christians did not take before the 4th century. I agree with Abraham Kuyper. Constantinianism was a mistake. It is a possibleimplication of Christ’s lordship over all things but it is not a necessary inference. It is exceeding difficult to make a case for it from the New Testament. The main thing the New Testament writers (and early Christian writers in the second century) wanted from the magistrate was to be left alone to worship God in peace and to serve our neighbor without interference.
When we speak of “the Christian view” of p or q, we should probably restrict that use of the adjective “Christian” to those things that we confess together as churches. Yes, the Reformed and Presbyterian churches have confessed Constantinianism but since the 18th century and since the early 20th century, most have not. It is an area where confessional folk may agree to disagree.
Under God’s government, Christians live in two spheres simultaneously. Each of those spheres has respect to different aspects of our lives. The fact that there are two spheres will always produce tensions and uncertainties, as in the case of the Mt Soledad cross. However one thinks about this and other such issues, let us be as zealous as Calvin was to preserve the sanctity of the liberty of the Christian conscience whil, at the same time, guarding against the ever-present possibility of a hyper-spiritualism or libertinism that disregards our obligations to our fellow men under the second table of God’s moral law.
Ben Sasse is a Reformed Christian who is presently campaigning for the U. S. Senate from Nebraska. In his campaign he is not making theocratic arguments but he is arguing from the founding principles articulated in the Declaration and Constitution. This approach presents an interesting, practical and concrete contrast with the theory espoused by some that the only proper way to engage civil life is from a “transformational” perspective.
1. This summary relies on the chronology provided by the San Diego Union Tribune (linked above) with supplementary information drawn from a variety of sources.
UPDATE 8 April, 2014
Here’s the latest on the legal status of the cross.
UPDATE July 24, 2015
UPDATE 20 June 2019
In American Legion v. American Humanist Association the court held (7-2) that the Bladensburg Cross did not constitute the establishment of religion.