And there goes the Nazi card! EUGENE PROVES THE POINT

Fri Apr 23 08:57:19 PDT 2010

The intolerance, is the idea that the Cross is a universal symbol of miliary valor that all Americans should regard as religiously neutral. That is the burden of your arugment. The idea of a cross for a military monument is deeply offensive to people who are not Christian. That you do not get this is hard to imagine. And for many non Christians the Cross is also a reminder of centuries of persecution under that symbol.   You think symbols matter, becuase otherwise you would not care if the Cross was up or down.  But, in pluralistic society you want to deny that the symbolism cuts both ways.  I have no problem with private monuments on private property.  And, as I have now pointed out for the third time, there are many non-religous symbols of American military valor.

So, I would pose it it another way.  Given the many choices for a monument -- and eagle, a  monolith, the 5 pointed star of the Medal of Honor, a replica of the purple heart; a replica of the statue of liberty -- why choose the Cross, which is not a military symbol; not a political symbol, but historically and currently a religious symbol?

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Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
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________________________________
From: Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
Sent: Friday, April 23, 2010 11:39 AM
To: Finkelman, Paul <paul.finkelman at albanylaw.edu>; Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: And there goes the Nazi card! EUGENE PROVES THE POINT

Curious, isn't it, that Paul, who accuses me of intolerance and bigotry for not wanting to have a 75 year old war memorial put up by US WWI veterans torn down, immediately thinks of mass religious murder from the 17th Century when he is reminded that countries without established churches use a cross in some of their military medal designs. But he tells us that his reference to the Iron Cross did not include any intention to refer to the Nazis. It's that intolerant and bigoted Kaiser that he meant to invoke. Well, the Iron Cross does have multiple meanings, only one of which is that it was a Nazi WWII medal. So we are to give Paul the benefit of the doubt that he did not intend to use it in this offensive way, even as he is thinking about mass religious murder and the "unanimity of the grave."

It would be an unexpected pleasure if Paul were to extend to others the tolerance and graciousness he expects to receive.

Mark Scarberry
Pepperdine

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From: conlawprof-bounces at lists.ucla.edu on behalf of Finkelman, Paul <paul.finkelman at albanylaw.edu>
Sent: Fri 4/23/2010 7:12 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: And there goes the Nazi card! EUGENE PROVES THE POINT

Eugene:  Thanks for adding more nations with established religions and officials churches -- St. George's Cross Victoria -- to supprot the point that Religion is tied to these symbols,.  The Croix de Guerre does come from a nation at had disestablished its church but the French military was still deeply deeply Catholic as the Dreyfus Affair illustrates and France was a "Catholic" country despite toleratng some Jews and others.  Remember, they kicked out and murdered all the Protestants in the 17th century. It reminds me of Justice Jackson's point in Barnette about the "unanimity of the grave."

I did not raise the Nazi card -- you did.  I was thinking of the Kaiser since the monument is post WWI.

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Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
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________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
Sent: Friday, April 23, 2010 2:25 AM
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.

               Eugene

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

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
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