When does a cross communicate a religious message and when does it not? This is, legally, a contentious issue. In more than one First Amendment fight, the religiousness communicated by certain symbols is the central dispute.
Is a cross on a hill religious? In a school? On a teacher? In a square? On a mountain?
If the symbol is on public space and communicates a religious message, it would seem that the government is endorsing a religion. But just because a symbol could be religious in some contexts doest mean it is always, everywhere. The problem, though, is in the US courts there's no really well-worked-out method for determining what a cross or another symbol communicates, according to two legal scholars who've just published an article on this topic.
Frederick Mark Gedicks, of Brigham Young University, and Pasquale Annicchino, of the European University Institute, write,
the legality of government display of a religious symbol depends on whether the symbol possesses non-confessional significance or, at least, lacks meaningful confessional significance. Yet both the United States Supreme Court and the European Court of Human Rights lack a workable approach to the crucial determination whether the required secular meaning is actually present or the prohibited confessional meaning is really absent.The two scholars argue that courts should turn to semiotics for the answer. They recommend the work of American pragmatist Charles Sanders Pierce, who developed a semiotics of icon, index, and token. The idea is that these are three different ways in which symbols communicate, and the courts would need to ask three different questions, about icon, index, and token, to really get at whether or not a symbol is communicating religion and thus endorsement.
Gedicks and Annicchino:
Consider, again, 'This chair is broken.' It could constitute a warning, if directed at someone about to sit on it: 'This chair is broken,' don’t sit on it! But at a garage sale it could instead be an explanation: 'This chair is broken,' I don't want to buy it. Or an accusation, from someone who has fallen from it: 'This chair is broken,' you should have told me! Although the linguistic meaning of the sentence remains the same in each example, its performative meaning changes according to the context in which it uttered. As these examples illustrate, the performative meaning of a sign depends on the context in which the semantic meaning of the sign is deployed.
The meaning of confessional signs likewise depends on the physical context in which they are displayed. Given the ordinary meaning of the Christian nativity as a sign of Jesus’s miraculous birth, its placement on the lawn of a Protestant church identifies a place of Christian worship. But a nativity displayed by itself in the lobby of a courthouse might additionally imply Christian bias in the administration of justice. And yet, the identical nativity in a commercial shopping district surrounded by secular signs and symbols may find its ordinary Christian significance diluted or entirely absent, displaced by another, secular meaning according to which the nativity is simply a marker of the 'winter holiday season' celebrated by Christians, some non-Christians, and most unbelievers. The significance of a religious sign displayed by the government is not necessarily its ordinary confessional meaning.I'm not convinced of all the details of their suggestions, but I find the basic outline of the problem and general recommendation for the solution compelling. At very least, it's worth thinking about, in the context of the First Amendment, when a religious symbol communicates a religious message, and when it does not, and why.