VOLOKH at law.ucla.edu
Thu Apr 22 14:53:46 PDT 2010
I can't speak to the Mojave National Preserve, but there are often private enclaves in national parks (see, e.g., http://www.4yosemite.com/rental/foresta.htm). My guess is that few drivers actually know where the national park boundaries lie.
But as to Scalia's point, I don't think he was saying the cross is a universalist symbol in general. Rather, I think he was saying that a reasonable observer who knew the cross was a war memorial (again, note that even under the endorsement test, the focus is on a reasonable observer who is fairly well-informed about the situation) would conclude that it was meant to honor American fallen soldiers generally, and not just Christian ones. (Whether this meaning was implemented in a sensitive enough manner was not the focus of Scalia's argument, I think.) And I think he was quite right: Whatever one might think of the execution, I doubt that a reasonable observer would see this war memorial as conveying the "sorry, pal, not you" message that only Christian soldiers are being memorialized.
Steven Lichtman writes:
> Actually (and someone can correct me if I am wrong), prior to the sale anyone
> who knew they were in the Mojave National Preserve would have known that they
> were indeed on government land. You don't need to get close to the cross to
> know you're in a national park. So contrary to Eugene's assertion, I would think
> that the Establishment Clause would indeed be front and center, unless a
> complainant saw the cross after parachuting out of an airplane or beaming down
> from the Enterprise.
> But this blurs the point that Eugene originally made: a defense of Scalia's
> argument that anyone who saw the cross would see it as applying to more than
> just Christians. As Paul Horwitz so astutely pointed out, that's likely a
> consequence of Scalia's inability to comprehend the issue from another
> perspective. Because he is in the majority, and sees the cross as a universalist
> symbol, he does not understand how it could be regarded as something partisan
> (for lack of a better word); cannot fathom how someone who does not venerate the
> cross would see it as a device for communicating the message "sorry, pal, not
> I struggle to find fault with Scalia here, because it's simply how 70+ years of life
> has trained him. Where I do find fault with him, though, is when he hears
> someone with a different worldview on the cross point out that to them it conveys
> a different message ... he then responds by dismissing that worldview as
> deficient, illegitimate, and empirically false. That is precisely what he did in his
> exchange with Peter Eliasberg, and sadly I expect that this is precisely what he
> will do in whatever opinion he contributes in Salazar v. Buono.
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