descriptive scholarly accounts of religious identityandjudicial behavior?
Christopher Lund
ed9034 at wayne.edu
Thu Apr 22 12:52:53 PDT 2010
There are those people. The Baptist Joint Committee raised some of these
points in their brief wanting the cross taken down. So did Doug Laycock's
brief on behalf of Muslim servicemen. The cross is the central symbol of
the central event of Christianity. A traditional position of Christians
has been that the cross represents salvation for them, but damnation for
others. St. Paul saw this as _the_ message of the cross: "For the message
of the cross is foolishness to those who are perishing, but to us who are
being saved it is the power of God" (1 Cor. 1:18). When the government
takes the position that the cross commemorates everyone, it undercuts the
stronger view of what the cross means taken by St. Paul and a lot of
modern-day Christians. It erodes that stronger meaning. Religious
liberals and nonreligious people may not care about that. Or they may
want that stronger meaning eroded. So they won't raise these objections.
Religious conservatives should be more bothered about this, but some of
them will take government-endorsed crosses on any legal grounds they can
get. They rightly know that the Supreme Court's rationalizations about
the secular meaning of the cross will not bind the public; the people will
see the cross as a cross.
Best,
Chris
___________________________
Christopher C. Lund
Assistant Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI 48202
lund at wayne.edu
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Frank Cross
Sent: Thursday, April 22, 2010 2:50 PM
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."
> > > >
> > > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu
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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
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> > >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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