War memorials

Ira (Chip) Lupu iclupu at law.gwu.edu
Fri Apr 23 09:05:41 PDT 2010


We just went through a long bout of name-calling on the question of which political party is more to blame for inciting violence, so it would be good to avoid the name-calling in this conversation. I beg all of you to cool off.

Mark, the fact of the cross being 75 years old seems to be doing a lot of work in your argument.  But I'm wondering how much we should allow it to do.  In the case of city names, there is good reason to see them as having shed much of their original religious significance.  But war memorials can't do that kind of shedding -- they are not names, and they can't acquire secondary meanings.  They are a constant and omni-present message, calling those in the present to remember and respect the dead.  Perhaps 75 years ago, we weren't so sensitive about religious minorities, though plenty of Jews -- including many fresh off the boat from Eastern Europe -- were drafted by the U.S., and fought and died for the U.S. in WWI.  And I'm still waiting for an answer to the question why we shouldn't insist that all such government-sponsored war memorials be secular -- I haven't heard one yet.  People will be upset at removing the cross in the Mojave Desert?  (People were upset that Gene Nich!
 ol!
 moved the cross in the Wren Chapel at William & Mary, a state university, to the chapel's back room, except during worship -- he did the constitutionally correct thing, and got fired for it.)

In any event, now that we have become constitutionally sensitive in this way, would Mark and Eugene concede that the U.S. may never again use a cross or other religiously exclusive symbol in a war memorial? Suppose a state display in the WWII memorial on the National Mall (erected within the last 10-15 years, I believe) included a cross. Unconstitutional?
 
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


---- Original message ----
>Date: Fri, 23 Apr 2010 08:39:04 -0700
>From: conlawprof-bounces at lists.ucla.edu (on behalf of "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>)
>Subject: RE: And there goes the Nazi card! EUGENE PROVES THE POINT  
>To: "Finkelman, Paul <paul.finkelman at albanylaw.edu>" <Paul.Finkelman at albanylaw.edu>,"Volokh, Eugene" <VOLOKH at law.ucla.edu>,<conlawprof at lists.ucla.edu>
>
>   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
>
>     ------------------------------------------------
>
>   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.
>    
>    
>    
>   *************************************************
>   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
>   www.paulfinkelman.com
>   *************************************************
>
>     ------------------------------------------------
>
>   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
>
>   www.paulfinkelman.com
>
>   *************************************************
>________________
>_______________________________________________
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