And there goes the Nazi card!
Mark.Scarberry at pepperdine.edu
Fri Apr 23 00:22:02 PDT 2010
I'll add only this point to Eugene's response to Paul:
The Mojave Desert Veterans Memorial Cross was not set up by the government but rather by a private group of World War I veterans 75 years ago. They chose a commonly used symbol for honoring the sacrifice made by the war dead, as noted in the various briefs, including one filed for the Veterans of Foreign Wars, the American Legion and others (including a retired Air Force Lt. Colonel who is Jewish). See http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-472_PetitionerAmCuVFWreprint.pdf. But for the Ninth Circuit's unreasonable quest to have the cross torn down, it would now sit on private land and would continue to be maintained privately. (It may in fact now be on private land depending on whether the Court gives effect to the 2003 appropriations act that transferred the land to private hands.) I don't think those veterans who put it up or those veterans who now want to be in charge of maintaining it (the VFW) have any intent at all to stigmatize or exclude or dishonor non-Christians who gave their lives for our country but rather to honor all our war dead in a way that made (and makes) sense to them. I doubt that the actions of these veterans are deeply offensive to millions of other American veterans and the families of those who died fighting for our country.
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 4/22/2010 11:25 PM
To: conlawprof at lists.ucla.edu
Subject: And there goes the Nazi card!
Is this really what debate among legal academics is coming down to these days - attempts to connect one's adversary on Establishment Clause issues with the Nazis? The analogy could have been to English decorations (the Victoria Cross, the George Cross, the Conspicuous Gallantry Cross, and the like), and to the distinction between English, which has an established church. Or there could have been mention made of French decorations (such as Croix de Guerre and the Croix de la Valeur Militaire), which persist despite the French lack of an official church.
Or there could have been a discussion about the American cross medals, the Army Distinguished Service Cross, Navy Cross, and Air Force Cross, awarded for "extraordinary heroism." Presumably under the reasoning below, all these medals have to be replaced forthwith with something else. An interesting legal question, which scholars can have an interesting conversation about. I'm inclined to say no, but I'd like to hear what others have to say on the subject.
But, no, it's straight for the Iron Cross we go. Are we now supposed to respond that removal of Christian symbols was tried by the Communists - "maybe [that] works for [Paul]"? That's about as serious and polite an argument as the Iron Cross argument. We should be a little better than that, it seems to me.
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Finkelman, Paul <paul.finkelman at albanylaw.edu>
Sent: Thursday, April 22, 2010 6:48 PM
To: Scarberry, Mark; conlawprof at lists.ucla.edu
Subject: RE: descriptive scholarly accounts of religiousidentityandjudicial behavior?
Mark's position is deeply offensive to millions of American who have made sacrifices for the nation and are not Christians. I can think of lots of symbols, starting with the Purple Heart. Maybe in Germany the Iron Cross works for Mark; or in some other country with an official faith. Indeed, symbols like the Iron Cross ought to be enough for a Democracy to reject the Cross as a symbol of military service.
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
paul.finkelman at albanylaw.edu
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