descriptive scholarly accounts of religious identityandjudicial behavior?
Edlin, Douglas
edlind at dickinson.edu
Thu Apr 22 11:17:07 PDT 2010
This means that Eugene believes a cross is not exclusively a Christian symbol (at least in the context of a war memorial). In the terms he uses, I suppose this leaves me among the "very few" who do perceive a cross as commemorating only Christian soldiers, which is evidently a "rare reaction." I have my doubts that this group represents the small minority here or that this reaction is as rare as Eugene suggests. Even conceding these points, though, I'm left wondering whether this might be one of those times when the views of the minority deserve some particular consideration, even in an "overwhelmingly Christian country" such as the US.
Doug
________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
Sent: Thursday, April 22, 2010 1:53 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: descriptive scholarly accounts of religious identityandjudicial behavior?
Religious items and symbols sometimes acquire nonreligious connotations as well. Sometimes the acquisition of the nonreligious connotation is so old that it's forgotten: Consider the crosses in the Hawaiian flag. Sometimes it's old but remembered; consider the name and the logo of Las Cruces, New Mexico, the subject of an interesting (and in my view quite correct) recent Tenth Circuit case, http://www.ca10.uscourts.gov/opinions/06/06-2355.pdf . And that's just crosses; consider likewise A.D., B.C., Christmas, Thanksgiving, Sacramento, Santa Fe, Providence, and more.
Of course, this simply makes it possible for a cross on a war memorial to be understood by a reasonable observer as a tribute to fallen soldiers of all religions -- it doesn't by itself make that the case. But my sense is that crosses in the context of war memorials have indeed acquired this extra meaning. To be sure, some people might perceive the cross as commemorating the fallen soldiers of all religions, but doing so in a thoughtless way that the observer dislikes. Yet even they would still be understanding the cross as commemorating the fallen soldiers of all religions.
I do imagine that there must be some people who perceive the cross as commemorating only Christian soldiers. But my sense is that there would be very few, even among Jews, agnostics, atheists, and others. The question is then what the significance of this rare reaction would be, since there are likewise some people who perceive A.D. and B.C. as sending a proselytizing message, or who object to the names of cities and the like. My sense is that the mere presence of some objectors can't suffice to render this sort of religious symbol with secular meaning into something unconstitutional, when used by the government. That sort of compelled expurgation of any symbols connected with religion from American public life should not, I think, be seen as constitutionally mandated. But that becomes a normative question about what the law should be; it doesn't undermine the soundness of Justice Scalia's observation of how the cross as war memorial is likely to be perceived.
Eugene
> -----Original Message-----
> From: Edlin, Douglas [mailto:edlind at dickinson.edu]
> Sent: Thursday, April 22, 2010 10:44 AM
> To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> behavior?
>
> It's difficult to know how to respond to this. It seems to me that we must either
> conclude that a cross is not exclusively a Christian symbol or that a Christian
> symbol should be understood to honor non-Christians. Moreover, as an empirical
> claim it appears to be belied by the perspective of the Jewish war veterans
> referenced in the exchange Eugene quotes below. Perhaps the empirical claim is
> that most of the soldiers who died in combat in WWII were Christians. But even
> assuming that's true, which I do, I still can't see how a symbol that honors that
> group of individuals should therefore be understood to honor the non-Christians
> who died fighting that war. A religious symbol is not a generic symbol, because
> there is no generic religion.
>
> Doug
>
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
> On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
> Sent: Thursday, April 22, 2010 1:25 PM
> To: 'conlawprof at lists.ucla.edu'
> Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> behavior?
>
> 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."
> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be viewed as private.
> > Anyone can subscribe to the list and read messages that are posted; people can
> > read the Web archives; and list members can (rightly or wrongly) forward the
> > messages to others.
> >
> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be viewed as private.
> > Anyone can subscribe to the list and read messages that are posted; people can
> > read the Web archives; and list members can (rightly or wrongly) forward the
> > messages to others.
> >
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people can
> read the Web archives; and list members can (rightly or wrongly) forward the
> messages to others.
>
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
More information about the Conlawprof
mailing list