In the Supreme Court’s most recent freedom of religion case, Justice Alito and Justice Ginsburg disagreed about the actual and potential meaning of the Latin cross, a traditional symbol of Christianity in which the upright leg of the cross is longer than the horizontal arms of the cross. Justice Alito stated that the Latin cross, while not losing its religious meaning, has acquired what might be called a “secondary meaning” as a symbol of World War I. He couched his analysis in language suggesting that a religious symbol’s meaning may depend on its circumstances. While he also denied that he is minimizing the religious importance of the symbol, he continued to revisit the language of the secondary meaning, suggesting that the symbol simply is not religious in certain contexts.
Justice Ginsburg, in contrast, argued that “[t]he Latin cross is the foremost symbol of the Christian faith” and that its use in a “war memorial does not transform it into a secular symbol.” The disagreement among the Justices with regard to the characterization of religious symbols in this 2019 case is the result of many years of struggle by the Court in dealing with religious symbols and the Establishment Clause. This is the first time, however, that a Justice has used language reminiscent of trademark’s secondary meaning doctrine in trying to assess whether the use of a religious symbol by a government entity violates the Establishment Clause. This marks a significant potential shift in the Court’s approach to religious symbolism, with potential consequences for the extent of the First Amendment’s guarantee of free exercise rights.
This Article looks at the conflicting views of the Court (in the majority opinion, in concurrences, and in the dissenting opinion) on the nature of the religious symbol and whether the symbol is changed by context and proposes a new type of analysis that focuses on the context of the use of the symbol. In order to do this, we first look in Part I at the various tests proposed by the Court in Establishment Clause cases, and in particular, the analysis of religious symbols. Part II outlines some basic principles of trademark law to set the stage for Part III. There, we apply those trademark principles to religious symbols to determine whether those principles are conducive to an Establishment Clause analysis. Potential uses for trademark law principles here include the determination of whether a symbol is a religious symbol, if a religious symbol might become a secular symbol, and how context might influence the public perception of a religious symbol. We assess whether the Court’s use of secondary meaning principles can be helpful to courts analyzing the use of religious symbols and whether it violates the Establishment Clause. The closing paragraph concludes that the principle of context is the key concept for religious symbol litigation but acknowledges that the principles of secondary meaning may help clarify a judge’s analysis of that context. We then propose a structured approach to the analysis that uses the idea of secondary meaning to assist a court in determining whether the use of a religious symbol violates the Establishment Clause in a particular context