descriptive scholarly accounts of religious identityandjudicial behavior?

[Christopher Lund]

Let me go back to an older post of yours, if I can.  You pointed out how
"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."

The commandeering problem maybe arises from the fact that Christians
believe that the meaning they give to the cross isn't just one meaning
among others.  They may think, as you put it, that there is "One True
Meaning" to the cross.  When the government puts up the cross on the
theory that it means something else -- or even that it just has a lot of
meanings, none of which have any priority -- the government has
commandeered the religious meaning of the cross.  (And this isn't just
true for Christian conservatives; I would think it true for anyone who
believes that the cross has a different meaning than the government's.)

Private parties, of course, can commandeer religious language and symbols.
And they frequently do.  We had blasphemy laws for a time, but now people
frequently use specifically Christian language to celebrate the car door
slamming on their hand.  Christians complain these things; they complain
about celebrities wearing meaningless crosses, and people who celebrate
Christmas without understanding the reason for the season.  They can't
stop those things, of course.  But all this is to say that I do think that
mass nongovernmental use of religious symbols and language can undercut
religious meaning.  And when the state does it, I think one could
reasonably view it as the sort of "unhallowed perversion of the means of
salvation" that Madison feared in the Memorial & Remonstrance.

Best,
Chris

P.S.  Eugene, how in the world do you write these posts so fast? 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, April 22, 2010 4:13 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: descriptive scholarly accounts of religious
identityandjudicial behavior?

        Again I'm puzzled by claims about what religious conservatives
"should be bothered" by.  I take it that one can be a good religious
conservative and take a somewhat different view, a view that's more
tolerant of the difference roles of symbols.

        Certainly when it comes to nongovernmental speech, many of us
would like to encourage religious people to be accepting of the different
roles of symbols, and not view, say, the casual use of the cross in
jewelry, or in entertainment, or in humor as blasphemous or otherwise
reprehensible.  I think that if a Christian conservative took such a view,
many of us would praise him for recognizing that symbols have multiple
meanings, and that religious symbols -- especially culturally significant
ones -- can acquire certain secular meanings without this having
consequences that should lead to upset for Christians or a worry about the
symbol's degradation.  Once one accepts this as to nongovernmental speech,
including either the jewelry choices of many individuals or the
entertainment materials used by large and influential corporations, it
seems to naturally follow to a large extent as to much governmental speech
as well.  If mass nongovernmental use of the cross doesn't und!
 ercut the religious view of the cross (at least in any way that is worth
complaining about), then it's not clear that governmental use of the cross
would undercut it, either.

        Now I'm sure there are arguments that governmental use of the
cross is somehow distinctively worse; and I suppose some Christians are
upset at nongovernmental use of the cross as well, but just realize that
there's nothing they can do about the nongovernmental use.  But at the
very least I would think that a religious conservative who decided not to
be bothered, and who thinks the cross and its religious meaning will
endure despite the secular meaning that such a culturally and historically
significant symbol naturally acquires, should be seen as taking a
reasonable position.  So again I'm not sure why we should say that he
"should be bothered" by something that he isn't bothered by.

        Eugene

> -----Original Message-----
> From: Christopher Lund [mailto:ed9034 at wayne.edu]
> Sent: Thursday, April 22, 2010 12:53 PM
> To: 'Frank Cross'; Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: descriptive scholarly accounts of religious
identityandjudicial
> behavior?
>
> 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."
> > > > >
> > > > > _______________________________________________
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> > > > >
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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
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
> Please note that messages sent to this large list cannot be viewed as
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> posted; people can read the Web archives; and list members can (rightly
or
> wrongly) forward the messages to others.
>

_______________________________________________
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