descriptive scholarly accounts of religious identityandjudicial behavior?

Volokh, Eugene VOLOKH at law.ucla.edu
Thu Apr 22 11:59:42 PDT 2010 

        So should Christians likewise adamantly object to Las Cruces, and its flag and name?  To the Hawaiian flag?  To the cities named after religious figures?  To the First Landing Cross in Virginia Beach, http://www.virginia.org/site/description.asp?attrID=10473?  All of these are secular applications of Christian symbols.  All those "secularize" them insofar as acknowledging that the symbols have secular meaning as well as religious meaning.

        My sense is that Christians shouldn't adamantly object to them, just as the nonreligious like me shouldn't adamantly object to them.  I would think that if we took things across the quad to the humanities people, and asked about meaning and not legal significance, they'd tell us what they've been saying about so many things for so many years -- symbols have multiple meanings in multiple contexts, the meanings change over time, the number of meanings often grows over time, and trying to limit the meanings to the One True Meaning is a lost cause.

        Eugene

> -----Original Message-----
> From: Frank Cross [mailto:crossf at mail.utexas.edu]
> Sent: Thursday, April 22, 2010 11:50 AM
> To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> behavior?
>
>
> The intriguing thing about the cross debate is that it seems to me
> that Christians should most adamantly object to Scalia's view.  The
> cross is a sacred religious symbol.  Scalia's position seems to be
> taking a sacred religious symbol and secularizing it.   Saying it is
> nothing more than a Christmas tree, symbolizing nonreligious
> matters.  I'm not aware of Christians taking this view, but it seems
> like the obvious implication.
>
>
>
>
>
> At 01:33 PM 4/22/2010, Volokh, Eugene wrote:
> >         My apologies for the imprecision in my post; I take it that
> > Justice Scalia was saying that the cross is the most common such
> > symbol of those symbols that are easily recognizable from some
> > distance as gravesite or memorial symbols, and my view was that
> > nonpracticing Christians who were asked to choose a visible symbol
> > would likely choose a cross.  A flat marker is indeed more common,
> > but it would make a poor memorial, because it's not that
> > visible.  A vertical rectangle (or rounded rectangle) is also
> > common, but it too wouldn't be much recognizable from a distance.
> >
> >         Also, the question isn't what a Jew, or an irreligious
> > person like me, would see as a symbol appropriate to honoring his
> > son or daughter in the singular.  Rather, it's what he would see as
> > one of the symbols appropriate to honoring a large group of people,
> > of whom his son or daughter would be one.  And I would indeed see a
> > cross -- in a culture where crosses have indeed been the most
> > dominant easily recognizable symbols of resting places -- as one
> > such appropriate symbol.
> >
> >         As to the alternatives, "a symbol of peace" and "a symbol
> > of war" just aren't an easily recognizable part of American funeral
> > or memorial culture.  An obelisk is a closer call, but again is not
> > that easily recognizable from a distance.  A large visible statue
> > that is recognizably the statue of a soldier might convey the
> > military message, though not the memorial message; but my sense is
> > that large statues of any quality would be very expensive, much
> > more so than a simple cross.
> >
> >         Eugene
> >
> > > -----Original Message-----
> > > From: Janet Alexander [mailto:jca at stanford.edu]
> > > Sent: Thursday, April 22, 2010 11:18 AM
> > > To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> > > Subject: RE: descriptive scholarly accounts of religious
> > identityandjudicial
> > > behavior?
> > >
> > >          Who has been to a cemetery lately? The dominant gravesite
> > > symbol of the country is not a cross.  It is a tombstone with name,
> > > dates, and perhaps an epitaph. (Might I say, in response to Eugene's
> > > empirical claim that the families of "many nonpracticing people whose
> > > backgrounds were Christian" "would probably erect a cross," that I
> > > come from a long line of churchgoing Appalachian Methodists and not a
> > > single grave in my family was marked by erecting a cross.) The iconic
> > > tombstone shape does not represent any particular religion. Even in
> > > the westerns to which Mark refers, cemeteries have
> > > tombstones.  Makeshift graves in movies have crosses because you can
> > > make one out of branches.
> > >          "What would you have them erect?" asks Justice Scalia. How
> > > about an obelisk, a symbol of peace, a symbol of war, a statute
> > > representing heroic battle or fallen comrades ... need I go on?
> > > Someone who believes there is no appropriate non-Christian symbol for
> > > a veterans' memorial either has no imagination or a "blind spot" or both.
> > >          Can we imagine a Buddhist, a Jew, an atheist, a Muslim, a
> > > Hindu asking herself "what symbol would be appropriate to honor my
> > > son or daughter" and answering "A cross! The very thing." Sure, they
> > > may have been well-intentioned, but they still chose a religious
> > > symbol. No quantity of rhetorical questions can make a cross a
> > secular symbol.
> > >          Janet Alexander
> > >
> > >
> > >
> > > At 10:25 AM 4/22/2010, Volokh, Eugene wrote:
> > > >         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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> > > > > _______________________________________________
> > > > > To post, send message to Conlawprof at lists.ucla.edu
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> > > > > Please note that messages sent to this large list cannot be
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> > > >
> > > >_______________________________________________
> > > >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.
>
> Frank B. Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> McCombs School of Business
> University of Texas
> CBA 5.202 (B6500)
> Austin, TX 78712-0212
> 512.471.5250
>

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