President Nichol’s resignation has been discussed largely in terms of whether he adopted sound administrative policies during his short tenure, glossing over, for the most part, significant constitutional questions. Take the controversy surrounding the Wren cross. Nichol’s removed an altar cross from permanent display in a chapel building used by some campus groups for secular meetings and by others as a place of worship. Any group who used the Wren building could nonetheless request that the cross be displayed for a particular event. Moreover, the cross was on display every Sunday, for the entire day, even when worship services were not in session.
Whether changing the nature of the cross display reflected sound policy may be a different question from whether displaying an altar cross at a public university, or its limited removal, implicates the Establishment Clause which prohibits the government from either favoring or disfavoring religion.
We can pretty easily put to rest any argument that the change was meant to disparage Christians whom, like any other group on campus, could request the cross when using the Wren building for either meetings or for mass. This accommodating display on demand policy arguably served the larger interests of an increasingly diverse university by allowing students of all faiths (or none) to enjoy perhaps the most historically significant building on campus. I’ve not seen any report that University officials declined to display the cross upon a request made by any group authorized to use the building. On the other hand, the permanent installation purportedly alienated many - prospective applicants, an a capella group, members of the honor society, and others - who had business at the facility. And there is some evidence that Nichol’s policy had its intended effect. At least one student organization that never before considered meeting at the Wren building considered it a "viable option" after the cross was placed on permissive, as opposed to permanent, display.
What about the flip side? Instead of asking whether the change in policy disparaged religion, consider whether a permanent altar cross displayed at a public university conveys religious favoritism. That is, did President Nichol spare William & Mary a lawsuit by making the cross available upon request? Its a closer call, but he may have done just that.
First, if a county can’t display a nativity scene in the grand stairway of a courthouse, can a state display a cross, in a chapel, at a public school? After all, it’s a cross. In a chapel. At a public school. We’re not talking Christmas trees on the town square that arguably convey a mix of secular and sectarian sentiment.
Second, context matters, and can mitigate the risk of religious endorsement associated with even inherently religious objects. And so, situating a six foot tall monolith of the 10 Commandments on the grounds of a state capitol might be problematic, but not when it is surrounded by more than a dozen secular monuments and sign-posts honoring the "people, ideas and events" that mark the state’s identity. And none need worry that Moses would anytime soon be chiseled out of the frieze that hangs over the Justice’s bench, lest the display create an improper religious endorsement. He too sits among other lawmakers - religious and otherwise - who have influenced the course of history. The Wren cross, at least on permanent display, is different. No context. No history. No explanation.
Third, some could argue that the centuries old Wren building reflects the historical identity and development of the University that was established in 1693 as part of the Church of England. But the building purports to replicate an 18th century chapel which, according to one historian, would not have included a cross. Even the Wren building itself was built without an altar cross. The cross was donated to W&M by a local church in 1931 after the University became a public institution. For constitutional purposes, the building and the cross are not of a piece. Indeed, the University’s recent decision to encase the cross in glass alongside a plaque that does explain its origins and history is precisely the type of context that would favor the University in an Establishment Clause challenge.
These are just some of the constitutional arguments supporting Nichol’s decision. But its not an open and shut case. Establishment Clause controversies are tricky, and the Court’s recent decisions in Van Orden and McCreary County did nothing but muddy the water. But even if W&M could display a permanent cross without violating the First Amendment, I’m reminded of wise mentoring advice I received long ago: just because you can do something, doesn’t mean you should. Whether Nichol’s made the right call here as a matter of University policy, I’ll let the institutional experts explain.
-Kathleen A. Bergin