And there goes the Nazi card!

[Volokh, Eugene]

            Seriously?  The Iron Cross, awarded (according to Wikipedia, I confess, but I doubt that this is controversial) to nearly a million Nazi soldiers during WWII?  The Iron Cross, awarded in one of its forms to, among others, Göring and Rommel (though the latter had also gotten one in the pre-Nazi era)?  The Iron Cross, familiar enough as a Nazi symbol to be so labeled even in Tinker v. Des Moines Indep. Comm. School Dist.?

And the reference to how "Maybe in Germany the Iron Cross works for Mark," and how "symbols like the Iron Cross ought to be enough for a Democracy to reject the Cross as a symbol of military service," refers solely to German conduct in World War I?   (Note the reference is to Mark, who is speaking today, not to those who put up the memorial before World War II, in a legal environment where there was clearly no constitutional problem with such an action; and the serious constitutional objections, of course, are to Congressional action long after World War II.)  That something was done by Kaiser-era Germany - not by the Nazis, mind you, but just by Kaiser-era Germany -- is supposed to be "enough for a Democracy to reject" it, even though all our major allies (including democratic France and constitutional monarchy England as well as autocratic Russia) in World War I were doing the same things?

            Note that none of this bears on the question whether America's specific tradition of separation of church and state (which in fact for most of American history has been a tradition of using some religious symbols, despite having an officially established church, rather than a tradition of consistently avoiding them) should lead us to (say) abolish the Army Distinguished Service Cross, even if democracies that have an established church or that have a different tradition of separation of church and state have cross medals.  I'm speaking here just of the references to "Maybe in Germany the Iron Cross works for Mark" and "symbols like the Iron Cross ought to be enough for a Democracy to reject the Cross as a symbol of military service" - and why I find it very hard to see them as simply a reference to Kaiser-era Germany.

            Eugene





From: Finkelman, Paul <paul.finkelman at albanylaw.edu> [mailto:Paul.Finkelman at albanylaw.edu]
Sent: Friday, April 23, 2010 7:13 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.

...
________________________________
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.
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