descriptive scholarly accounts of religious identityandjudicial behavior?

[Daniel Hoffman]

I am sorry, but the cross does not refer to "a large group of people."  It refers to Jesus.
I attended a parochial high school where we were not allowed to sit with our legs crossed.
A cross is a cross is a cross..
And no, Eugene, the establishment clause is not aimed at accommodating the sentiments of the majority.  If the speech caluse can protect one person, why can't the establisment clause?

--- On Thu, 4/22/10, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:


From: Volokh, Eugene <VOLOKH at law.ucla.edu>
Subject: RE: descriptive scholarly accounts of religious identityandjudicial behavior?
To: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
Date: Thursday, April 22, 2010, 4:21 PM


        An individual grave marked with a cross, I agree, is likely to be the grave of a Christian, or perhaps a nonreligious person from a Christian background.  But Justice Scalia's point is that a war memorial that uses a cross, which refers not to an individual but to a large group of people, is not likely to be seen as referring only to Christians.

        Eugene

> -----Original Message-----
> From: Miller, Darrell (mille2di) [mailto:mille2di at ucmail.uc.edu]
> Sent: Thursday, April 22, 2010 12:51 PM
> To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> behavior?
>
> I agree that we can't have a functional doctrine if every objector wins his case.
> But I think you're giving the "neutrality" point in this particular circumstance a little
> too easy a pass.  "The most common symbol of the resting place of the dead . . . "
>
> Consider this hypothetical for the reasonable observer.  You take a cross and
> place it on a hill and say to someone on the street "people are buried over there."
> How many people (who understand that there are more than just Christians in
> America) instantly think "that is where all kinds of people are buried irrespective of
> their religion, if I want to put flowers on the grave of a Muslim, I go looking there"
> and how many would think "that's where Christians are buried, I should probably
> take my wreath elsewhere if I want to find where the Muslims are buried."
>
> That doesn't win the case for the plaintiffs (maybe a reasonable observer sees a
> military memorial differently from a civilian one, maybe because of the disconnect
> between the neutral purpose and its perception), but it makes this particular point
> about the perception of reasonable observer a closer call.
>
>
> -----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 3:05 PM
> To: 'conlawprof at lists.ucla.edu'
> Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> behavior?
>
>         Well, it's true that some people object to the cross.  We agree, though, that
> the mere presence of the objection isn't sufficient to legally obligated the
> government from having the symbol (or having it and then disposing it in a special
> deal to a private entity).  The conventional answer is that one has to look at the
> meaning of the symbol as it would be perceived by a reasonable, knowledgeable
> observer.  There are many problems with the test, not the least of which is that it
> requires the courts to conclude that some observers are unreasonable.  But the
> obvious alternative, which is to treat as legally obligatory any objection at all to
> any religious symbol, is unavailable (again, I take it we agree on this).
>
>         So Justice Scalia's view is that a reasonable observer would understand that
> a cross as a war memorial is intended to honor all fallen soldiers, and should be
> understood as so honoring them (even if some such reasonable observers might
> think that the cross is as insensitive or even an offensive way of doing that).  I
> agree with Justice Scalia on this; but more broadly, I'm not sure how we can say
> that he's not taking the opposing viewpoint seriously -- he's just making a decision
> ("courts decide cases") about what a reasonable observer would perceive.
>
>         Eugene
>
> > -----Original Message-----
> > From: Edlin, Douglas [mailto:edlind at dickinson.edu]
> > Sent: Thursday, April 22, 2010 11:55 AM
> > To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> > Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> > behavior?
> >
> > Minorities can be cranky that way.  But the point is that some of these
> objections
> > have merit and some may not.  So courts decide cases.  In this case, the
> > objection of non-Christian soldiers (what a phrase) that using a cross as a
> generic
> > symbol, which they believe does not honor their heritage or beliefs, is more
> > significant than the Easter Bunny.  And the fact that Justice Scalia seems
> unable
> > to take that viewpoint seriously is disconcerting.
> >
> > Doug
> >
> > ________________________________________
> > From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
> > On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
> > Sent: Thursday, April 22, 2010 2:41 PM
> > To: 'conlawprof at lists.ucla.edu'
> > Subject: RE: descriptive scholarly accounts of religious        identityandjudicial
> > behavior?
> >
> >         The trouble is that there'll always be a minority to object to virtually
> anything
> > -- especially if it becomes clear that such an objection would give them power to
> > coerce changes.  (I'm certainly not speaking of anyone on the list, but about
> > human nature more broadly.)  Some minority would demand that "Year of Our
> > Lord" be excluded from government speech, cf.
> > http://volokh.com/2010/03/29/year-of-our-lord/ .  Some would demand the same
> as
> > to "A.D." and "B.C."  Some would insist that the city seal of Las Cruces be
> > changed; some that the name be changed; some that Christmas trees -- which
> in
> > my view are about as religious as the Easter bunny -- be removed from
> > government buildings; some that cities stop the practice of putting up Christmas
> > lights in city shopping districts; some that state constitutions have religious
> > references removed from them; the list could go on.
> >
> >         Now perhaps some might take the view that the government has a
> > constitutional obligation to expurgate all these religious references from
> > governmental buildings, documents, and so on, so long as any minority objects,
> > and notwithstanding how offended this might make the majority feel.  But absent
> > that, we at the very least have to agree that the minority can't prevail just by
> > saying "We feel offended / left out by this use of religiously significant imagery /
> > wording / etc."
> >
> >         Eugene
> >
> > > -----Original Message-----
> > > From: Edlin, Douglas [mailto:edlind at dickinson.edu]
> > > Sent: Thursday, April 22, 2010 11:17 AM
> > > To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> > > Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> > > behavior?
> > >
> > > This means that Eugene believes a cross is not exclusively a Christian
> symbol
> > (at
> > > least in the context of a war memorial).  In the terms he uses, I suppose this
> > > leaves me among the "very few" who do perceive a cross as commemorating
> > only
> > > Christian soldiers, which is evidently a "rare reaction."  I have my doubts that
> > this
> > > group represents the small minority here or that this reaction is as rare as
> > Eugene
> > > suggests.  Even conceding these points, though, I'm left wondering whether
> this
> > > might be one of those times when the views of the minority deserve some
> > > particular consideration, even in an "overwhelmingly Christian country" such
> as
> > > the US.
> > >
> > > Doug
> > >
> > > ________________________________________
> > > From: conlawprof-bounces at lists.ucla.edu [conlawprof-
> bounces at lists.ucla.edu]
> > > On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
> > > Sent: Thursday, April 22, 2010 1:53 PM
> > > To: 'conlawprof at lists.ucla.edu'
> > > Subject: RE: descriptive scholarly accounts of religious
> identityandjudicial
> > > behavior?
> > >
> > >         Religious items and symbols sometimes acquire nonreligious
> connotations
> > > as well.  Sometimes the acquisition of the nonreligious connotation is so old
> that
> > > it's forgotten:  Consider the crosses in the Hawaiian flag.  Sometimes it's old
> but
> > > remembered; consider the name and the logo of Las Cruces, New Mexico, the
> > > subject of an interesting (and in my view quite correct) recent Tenth Circuit
> > case,
> > > http://www.ca10.uscourts.gov/opinions/06/06-2355.pdf .  And that's just
> crosses;
> > > consider likewise A.D., B.C., Christmas, Thanksgiving, Sacramento, Santa
> Fe,
> > > Providence, and more.
> > >
> > >         Of course, this simply makes it possible for a cross on a war memorial
> to
> > be
> > > understood by a reasonable observer as a tribute to fallen soldiers of all
> > religions -
> > > - it doesn't by itself make that the case.  But my sense is that crosses in the
> > > context of war memorials have indeed acquired this extra meaning.  To be
> sure,
> > > some people might perceive the cross as commemorating the fallen soldiers
> of
> > all
> > > religions, but doing so in a thoughtless way that the observer dislikes.  Yet
> even
> > > they would still be understanding the cross as commemorating the fallen
> > soldiers
> > > of all religions.
> > >
> > >         I do imagine that there must be some people who perceive the cross as
> > > commemorating only Christian soldiers.  But my sense is that there would be
> > very
> > > few, even among Jews, agnostics, atheists, and others.  The question is then
> > > what the significance of this rare reaction would be, since there are likewise
> > some
> > > people who perceive A.D. and B.C. as sending a proselytizing message, or
> who
> > > object to the names of cities and the like.  My sense is that the mere presence
> > of
> > > some objectors can't suffice to render this sort of religious symbol with
> secular
> > > meaning into something unconstitutional, when used by the government.  That
> > > sort of compelled expurgation of any symbols connected with religion from
> > > American public life should not, I think, be seen as constitutionally mandated.
> > But
> > > that becomes a normative question about what the law should be; it doesn't
> > > undermine the soundness of Justice Scalia's observation of how the cross as
> > war
> > > memorial is likely to be perceived.
> > >
> > >         Eugene
> > >
> > > > -----Original Message-----
> > > > From: Edlin, Douglas [mailto:edlind at dickinson.edu]
> > > > Sent: Thursday, April 22, 2010 10:44 AM
> > > > To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> > > > Subject: RE: descriptive scholarly accounts of religious identityandjudicial
> > > > behavior?
> > > >
> > > > It's difficult to know how to respond to this.  It seems to me that we must
> > either
> > > > conclude that a cross is not exclusively a Christian symbol or that a
> Christian
> > > > symbol should be understood to honor non-Christians.  Moreover, as an
> > > empirical
> > > > claim it appears to be belied by the perspective of the Jewish war veterans
> > > > referenced in the exchange Eugene quotes below.  Perhaps the empirical
> > claim
> > > is
> > > > that most of the soldiers who died in combat in WWII were Christians.  But
> > even
> > > > assuming that's true, which I do, I still can't see how a symbol that honors
> that
> > > > group of individuals should therefore be understood to honor the non-
> > Christians
> > > > who died fighting that war.  A religious symbol is not a generic symbol,
> > because
> > > > there is no generic religion.
> > > >
> > > > Doug
> > > >
> > > > ________________________________________
> > > > From: conlawprof-bounces at lists.ucla.edu [conlawprof-
> > bounces at lists.ucla.edu]
> > > > On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
> > > > Sent: Thursday, April 22, 2010 1:25 PM
> > > > To: 'conlawprof at lists.ucla.edu'
> > > > Subject: RE: descriptive scholarly accounts of religious
> > identityandjudicial
> > > > behavior?
> > > >
> > > >         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.
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