And there goes the Nazi card!
rs at robertsheridan.com
Fri Apr 23 10:13:25 PDT 2010
Well, I think we made the policy decision at the founding not to force
religion on those of different religions. It wasn't seen then, and I
don't believe can fairly be considered now, to be shoving 'secularism'
down anyone's throats.
Why? Because religion seems well able to nurture its communicants well
without the active participation of government.
Since the rise of the religious right, I hadn't seen the claim made that
secularism was being forced down anyone's throat. The religious right
seems to have adopted a strategy of claiming that the protection of Jews
and other religious minorities from various civic-religious ceremonies
amounts to a deprivation of the religious right's long-standing practice
that they feel they have a right to maintain.
The history of Conlaw is full of examples of 'time-honored' and
'traditional' practices being held unconstitutional, slavery, Jim Crow,
and anti-Gay law and practice being foremost.
As we've seen, it takes ages for accepted practice first to be
questioned, then to become the subject of a movement that makes the
objection to it widespread, and then for the necessary Civil War and/or
legal action to take place before the practice is held
unconstitutional. Even then it can take generations before the practice
is even begun to be dealt with effectively, Jim Crow being a leading
Volokh, Eugene wrote:
> That has been the point of much of the discussion -- it's the iron cross reference that I was specifically objecting to.
> But returning to the merits, one might equally ask whether we really need to shove compulsory securalism down the throats of a majority that often says it is unwilling to accept it, or why we shouldn't be equally sensitive to people who are upset at the attempt to cleanse public life of cultural components that are many decades old, that are part of the nation's history, and that are emotionally valuable to many people. Maybe the answer is yes -- but not because the option is "shoving down the throats" (a pretty odd metaphor for a monument on a mountain) versus not shoving down the throats; it's the choice between two actions, each of which is symbolically offensive to some.
>> -----Original Message-----
>> From: Robert Sheridan [mailto:rs at robertsheridan.com]
>> Sent: Friday, April 23, 2010 9:41 AM
>> To: Volokh, Eugene
>> Cc: 'conlawprof at lists.ucla.edu'
>> Subject: Re: And there goes the Nazi card!
>> I think the point of all this discussion is that the constitutional
>> separation of church and state is designed to protect against several
>> things, one of them being to protect certain individuals from being made
>> to feel victimized by majority insensitivity when it comes to religious
>> parading of symbols, songs, salutes, pledges, 'under Gods,' etc., as
>> exemplified in Barnette as to salutes and pledges.
>> So if one is sufficiently sensitive that one can understand the feelings
>> of, and sympathize with the various discussants who have been subject to
>> debate here, perhaps one can be equally sensitive to the feelings of
>> those forced to participate in ceremonies and to use symbols foreign to
>> their tradition, and not only foreign in some cases, but identified with
>> their historic persecutors.
>> Why force anyone, as they see it, to suffer the religious symbols of
>> their former persecutors?
>> Do we really need to shove certain powerful religious symbols down the
>> throats of people who say they are unwilling to accept?
>> Volokh, Eugene wrote:
>>> 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.
>>> *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.
>>> *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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