The Establishment Clause, religious symbols, and digging in heels
Robert Sheridan
rs at robertsheridan.com
Thu Apr 22 13:34:16 PDT 2010
Well, I live in a city called San Francisco, named after St. Francis of
Assisi. The city I live in was founded by Fray Junipero Serra, a
Catholic missionary priest who in the mid-1770s established a series of
missions extending from Mission San Diego to the Mission called Reina de
Los Angles (today's LA), to Mission Santa Barbara, to Mission Carmel, to
Mission San Benito, to Mission Santa Clara and ending with Mission San
Rafael in today's Marin County. I've left out a few. This was before
the U.S. acquired California around 1849, and perhaps before the United
States achieved independence.
No one in San Francisco, as far as I've heard, objects to the name of
the city, regarding it, I presume, as a welcome historical fact, or
artifact.
There is some objection, however, to the giant concrete cross standing
over the city on Mt. Davidson in San Francisco. There was a lawsuit
that sought to have it taken down because it sat on city park land. It
has been the site of Easter services since the 1930s. The objectors
apparently 'won' the lawsuit only to lose it when the city sold the land
to a private concern (a church group, as I recall), eliminating the
state action required to force removal.
To Eugene's point that economic concerns should control the clash of
symbols and thus permit the cross to remain the default practice because
it is cheaper to allow the cross than to remove it or accommodate those
who object to it, I suggest that this evades the constitutional point.
In a comparable area, prisoners have sued to be permitted to wear
yarmulkas, to wear long Native American braided hair, for kosher food,
etc. In the military, reasonable accommodations have been made for
religious reasons to the diet and uniform regulations, despite the
arguments as to cost, uniformity and security. Why? Apparently because
we consider it important enough as a principle that one person's
religious symbols should not be forced down another person's throat
under pretext of economy, uniformity or security. Not everyone has to
agree, and to some the arguments over cost, uniformity and security may
outweigh, but the relevant principle is that serious consideration must
be given to the claim, just as in the case of conscientious objectors to
military service. Fake claims can be weeded out, but sometimes the
claims are legitimate. Blanket rejection for economy, uniformity or
security cannot be the invariable rule.
It is perhaps because there is so much sympathy for EV's viewpoint among
those running large institutions such as governments, armies, and
prisons, that claims for consideration, ie a variance or cessation, are
given short shrift, resulting in appeals to the upper courts. I suggest
that if the default religious practice is important enough to fight to
keep, the objections to it are important enough to fight to oppose.
There may be principled ways to accommodate both sides. Eliminating a
cross erected over a city in the 1930s is one thing, changing the name
of Corpus Christi is another. Suppose a new city were founded today.
Could it be called Corpus Christi over objection? Could the new city
fathers erect a cross over it? Why would they do that, over objection?
What would they be saying, and thinking?
rs
Volokh, Eugene wrote:
> It's hard to figure out why people act as they do. But my sense is that a common reason for "dig[ging] in one's heels" in response to claims of supposed religious insensitivity is a consciousness of how many such claims can be made, and a sense that one has to draw the line. I certainly don't find Christian symbols to be culturally or religiously superior; as I said, I'm not remotely a Christian, nor do I have personal emotional affinity for much Christian symbolism. But I certainly understand (and agree with) the reaction of some people who see challenges not just to memorial crosses but to the City of Las Cruces city seal, and to the use of "Year of Our Lord" and "A.D.," and to Christmas trees (for which I actually do have a personal emotional affinity), and to the use of historically significant religious music in music classes, and much more. They conclude that the only way to prevent expurgation of a vast range of culturally and historically significant imag!
> ery and references from public life is to dig in their heels, and say that some objections, however heartfelt, just don't make such imagery and references illegal. And while this may well offend some in the minority, this potential expurgation of mixed religious/cultural references from public life quite understandably offends some in the majority; I do not believe that those in the second group have some sort of obligation to yield to those in the first.
>
> Eugene
>
>
>> -----Original Message-----
>> From: Robert Sheridan [mailto:rs at robertsheridan.com]
>> Sent: Thursday, April 22, 2010 12:21 PM
>> To: Janet Alexander
>> Cc: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
>> Subject: Re: descriptive scholarly accounts of religious identityandjudicial
>> behavior?
>>
>> 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."
>>>>>
>>>>> _______________________________________________
>>>>> 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;
>>>>>
>>>> people can
>>>>
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>>>>>
>>>> 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
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>>>> (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
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>>> Please note that messages sent to this large list cannot be viewed as
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>>> (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.
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