descriptive scholarly accounts of religious identityandjudicial behavior?

Robert Sheridan rs at robertsheridan.com
Thu Apr 22 12:21:23 PDT 2010


Perhaps this is why the architect for the Vietnam War Memorial chose a 
wall of names.

I visit the National Cemetery at the Presidio of San Francisco every 
year on Memorial Day to witness the ceremony honoring the fallen.  I 
recall seeing lots of crosses over graves dating back to the Civil War.  
There may be some Stars of David; I'll have to look next May.  I have 
seen photos of the American cemetery  at or near Normandy, France, where 
Stars of David appear over some of the graves.

The point is, I think, that we live (and sometimes die) by symbols: 
crosses and flags being two leading examples.  Thus they are very 
important.  As an example, Justice Stevens was willing to make an 
exception for the flag (burning) to free speech principles in Johnson v. 
Texas.  I don't think that Justice Scalia was blind; perhaps a little 
insensitive to the feelings of those who objected to being buried under 
a cross, however.  His insensitivity to those feelings inclined him to 
water down the significance of the cross to deem it a neutral symbol.  I 
doubt, given a choice, he'd be willing to be buried under a Star of 
David.  I could be wrong.  I don't think the Star of David can be used 
as a watered-down generic symbol of respect for the dead of all faiths.  
That's not how symbols work and not how these particular symbols work.  
They're specific to those for whom they have special meaning.

It seems merely insensitive, to me, to ignore this, but blind and 
arrogant to dig in one's heels after it is pointed out.  This latter is 
a little harder to understand and makes one wonder whether some notion 
of cultural or religious superority lies at bottom of the refusal to 
recognize another's feelings on a matter of such importance.

rs



Janet Alexander wrote:
>         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 viewed 
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>> > Anyone can subscribe to the list and read messages that are posted; 
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>> > read the Web archives; and list members can (rightly or wrongly) 
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>>
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
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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.
>
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