descriptive scholarly accounts of religious identityandjudicial behavior?

[Volokh, Eugene]

	Justice Scalia's statement seems quite right to me, when it comes to a generic memorial.  America is an overwhelmingly Christian country, especially when you include the many nonpracticing people whose family backgrounds were Christian, and whose families would probably erect a cross over their tombstone without much attention to specifically religious concerns.  Justice Scalia isn't denying that Jews generally wouldn't be buried with a cross on their tombstones.  Rather, his assertion is that people who see a cross memorial for war veterans would understand is a memorial to all war veterans -- which uses the dominant gravesite symbol of the country -- rather than as a memorial to Christian veterans.  I quote below the entire passage from the transcript, which I think makes that pretty clear.  

	So I don't think there's any "blind spot" on Justice Scalia's part here.  Even if one thinks that as a legal matter the governmental history of this particular cross makes its display unconstitutional, and that as a normative matter non-Christians should be offended by the cross, Justice Scalia's empirical claim -- that the cross would be seen by the reasonable observer as intended to honor all soldiers and not just Christian ones -- strikes me as correct.

	Eugene

 
JUSTICE SCALIA: The cross doesn't honor non-Christians who fought
in the war? Is that -- is that -
MR. ELIASBERG: I believe that's actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn't say that, but a cross is the predominant
symbol of Christianity and it signifies that Jesus is the son of God and
died to redeem mankind for our sins, and I believe that's why the Jewish
war veterans -
JUSTICE SCALIA: It's erected as a war memorial. I assume it is
erected in honor of all of the war dead. It's the -- the cross is the --
is the most common symbol of -- of -- of the resting place of the dead,
and it doesn't seem to me -- what would you have them erect? A cross --
some conglomerate of a cross, a Star of David, and you know, a Moslem
half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first
point. The cross is the most common symbol of the resting place of
Christians. I have been in Jewish cemeteries. There is never a cross on a
tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don't think you can leap from that to the
conclusion that the only war dead that that cross honors are the
Christian war dead. I think that's an outrageous conclusion.
MR. ELIASBERG: Well, my -- the point of my -- point here is to say
that there is a reason the Jewish war veterans came in and said we don't
feel honored by this cross. This cross can't honor us because it is a
religious symbol of another religion.

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Miller, Darrell (mille2di)
> Sent: Thursday, April 22, 2010 10:12 AM
> To: 'Scarberry, Mark'; conlawprof at lists.ucla.edu
> Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> behavior?
> 
> I think the quote simply shows that we all have certain blind spots.  I'm sure when
> Justice Scalia imagined a graveyard, the first thing he saw was acres of crosses.
> He didn't imagine a Jewish graveyard or a Muslim graveyard.  "The cross is the
> most common symbol of the resting place of the dead" simply exposes his frame
> of reference and/or his storehouse of experience.  If anything, I think the quote
> supports Prof. Scarberry's point that one's background will tend to influence a
> person's ability to perceive, understand, (have empathy for?) the perceptions of
> others not like them.
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
> Sent: Thursday, April 22, 2010 12:27 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> behavior?
> 
> If my memories of 50 or so years of popular culture are somewhat
> accurate, crosses are thought of as marking gravesites of lots and lots
> of people who seem to have no religion at all (e.g., gunslingers or
> outlaws in the typical low-budget Western).
> 
> Mark Scarberry
> Pepperdine
> 
> P.S. I was just quoted in an LA Times/Chicago Tribune story with regard
> to religious diversity and the Court. In case any list members happened
> to see the article, let me say that it portrayed me as having
> substantially stronger views than I actually have in favor of the
> President seeking to promote religious diversity on the Court. Nina
> Totenberg's description of my views was more accurate:
> 
> 
> [begin quote from
> http://www.npr.org/templates/story/story.php?storyId=125641988]
> "Professor Mark Scarberry at Pepperdine law school, a self-described
> evangelical Protestant, says there should be no religious test for
> appointment.
> " 'But I don't think that that means that a president shouldn't pay at
> least some attention to religious diversity on the court,' he said. 'It
> does seem to me that when you have such a large part of the country that
> has a particular sort of religious worldview, if there is no one on the
> court who is able to understand that worldview in a sympathetic way,
> then that creates difficulties.' "
> [end quote]
> 
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Miller, Darrell
> (mille2di)
> Sent: Thursday, April 22, 2010 8:05 AM
> To: 'Eric Segall'; Hamilton02 at aol.com; SLevinson at law.utexas.edu;
> conlawprof at lists.ucla.edu; Jeff.Renz at mso.umt.edu; kwalsh at richmond.edu;
> GCSISK at stthomas.edu
> Subject: RE: descriptive scholarly accounts of religious
> identityandjudicial behavior?
> 
> I think it is worth mentioning in this discussion this exchange in the
> Salazar case (from the WSJ article Oct. 8, 2009):
> 
> "The cross is the most common symbol of the resting place of the dead,"
> [Justice Scalia] said. "What would you have them erect? Some
> conglomerate of a cross, a Star of David, and you know, a Muslim half
> moon and star?"
> 
> "I have been in Jewish cemeteries. There is never a cross on a tombstone
> of a Jew," [Counsel] Mr. Eliasberg said. "So it is the most common
> symbol to honor Christians."
> 
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