Memorial Wins 5-4

Earl Maltz emaltz at camden.rutgers.edu
Wed Apr 28 09:43:37 PDT 2010


Ok, let me make my point more clearly.  The cross 
was bothering nobody and was not preventing 
anyone from expressing their beliefs, practicing 
their religion, etc.  However, the IDEA that such 
a cross exists and that people were using it as a 
focus for prayer was anathema to the zealots of 
the ACLU, People for the American Way and similar 
(fill in the blank) groups.  So they literally 
made a federal case out of it.  Quite 
understandably, those who had been using the 
cross as the focus for entirely inoffensive 
observances felt themselves under assault so we 
spend years of litigation and millions of dollars 
in scarce resources over what I would describe as 
constitutional trivia.  And as Chip has observed, it is not over yet.

In doctrinal terms, the best way to handle this 
would be to change the standing rules so that 
plaintiffs like Buono couldn't get into 
court.  But that's not going to happen, so we're 
going to continue to have litigation like this, 
which has no practical significance other than to 
inflame the passions of those who have every 
reason to resent the assault on their beliefs and values.

At 12:08 PM 4/28/2010, Doug Edlin wrote:
>What a wonderfully sensitive way of 
>characterizing or ignoring the concerns of those 
>who recently participated in the exchange on the 
>list about this issue.  This should definitely 
>improve our understanding of these issues.
>
>Doug
>
>Earl Maltz wrote:
>
>>A cross to honor war dead in the middle of the
>>Mojave Desert?  Clearly, a big step toward 
>>Taliban control of American society.
>>
>>At 11:40 AM 4/28/2010, Ira (Chip) Lupu wrote:
>>
>>
>>>Not so fast -- the case is not over.  There is a
>>>remand to the district court on the question of
>>>whether the land transfer cures the problem, as
>>>measured by the endorsement test.
>>>
>>>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: Wed, 28 Apr 2010 08:11:02 -0700 (PDT)
>>>>From: conlawprof-bounces at lists.ucla.edu (on
>>>>
>>>behalf of Rick Duncan <nebraskalawprof at yahoo.com>)
>>>
>>>
>>>>Subject: Memorial Wins 5-4
>>>>To: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
>>>>
>>>>
>>> From Yahoo news:
>>>
>>>
>>>>"The Supreme Court said Wednesday that a federal court went
>>>>too far in ordering the removal of a congressionally endorsed
>>>>war memorial cross from its longtime home in California.
>>>>
>>>>In ruling the cross could stay, the justices said federal
>>>>judges in California did not take sufficient notice of the
>>>>government's decision to transfer the land in a remote area
>>>>of California to private ownership. The move was designed to
>>>>eliminate any constitutional concern about a religious symbol
>>>>on public land.
>>>>
>>>>The ruling was 5-4, with the court's conservatives in the
>>>>majority.
>>>>
>>>>The Veterans of Foreign Wars erected the cross more than 75
>>>>years ago atop an outcropping in the Mojave National
>>>>Preserve.
>>>>
>>>>It has been covered with plywood for the past several years
>>>>following the court rulings. Court papers describe the cross
>>>>as 5 feet to 8 feet tall.
>>>>
>>>>"Here one Latin cross in the desert evokes far more than
>>>>religion. It evokes thousands of small crosses in foreign
>>>>fields marking the graves of Americans who fell in battles,
>>>>battles whose tragedies are compounded if the fallen are
>>>>forgotten," Justice Anthony Kennedy wrote.
>>>>
>>>>In dissent, Justice John Paul Stevens agreed that soldiers
>>>>who died in battle deserve a memorial to their service. But
>>>>the government "cannot lawfully do so by continued
>>>>endorsement of a starkly sectarian message," Stevens said.
>>>>
>>>>Six justices wrote separate opinions and none spoke for a
>>>>majority of the court. The holding itself was narrow,
>>>>ordering lower courts to look again at the transfer of land
>>>>
>>>>
>>>>from the government to private control.
>>>
>>>
>>>>Lower federal courts previously ruled that the cross'
>>>>location on public land violated the Constitution and that
>>>>the land transfer was, in effect, an end run around the
>>>>constitutional problem."
>>>>
>>>>Rick Duncan
>>>>Welpton Professor of Law
>>>>University of Nebraska College of Law
>>>>Lincoln, NE 68583-0902
>>>>
>>>>"And against the constitution I have never raised a
>>>>storm,It's the scoundrels who've corrupted it that I want to
>>>>reform" --Dick Gaughan (from the song, Thomas Muir of
>>>>Huntershill)
>>>>
>>>>--- On Fri, 4/23/10, Volokh, Eugene <VOLOKH at law.ucla.edu>
>>>>wrote:
>>>>
>>>>From: Volokh, Eugene <VOLOKH at law.ucla.edu>
>>>>Subject: RE: FW: descriptive scholarly accounts of
>>>>religious identityandjudicial behavior?
>>>>To: "'conlawprof at lists.ucla.edu'"
>>>><conlawprof at lists.ucla.edu>
>>>>Date: Friday, April 23, 2010, 2:24 PM
>>>>
>>>>             I agree that if one person’s Establishment
>>>>Clause rights are violated, that one person can sue, even
>>>>if he’s the only one whose rights are violated.
>>>>
>>>>
>>>>
>>>>             But the question still remains:  When are that
>>>>one person’s Establishment Clause rights violated?  If
>>>>the answer is “whenever the government uses a symbol that
>>>>the one person perceives as religious,” then the
>>>>government may not use A.D., B.C., the city names
>>>>Sacramento, Las Cruces, and Corpus Christi and a vast range
>>>>of other speech.  I’m not sure whether that’s what
>>>>Prof. Hoffman is calling for, but, if it is, that strikes
>>>>me as quite the wrong rule (and I suspect that even those
>>>>who disagree with me on memorial crosses would share my
>>>>view on that).
>>>>
>>>>
>>>>
>>>>             A possible response, of course, is to say that
>>>>the symbol is tested by the standard of the reasonable
>>>>observer.  That’s what the Court seems to have done.  But
>>>>that suggests that it’s not enough to say “one person
>>>>perceives this symbol as religious”; the belief has to be
>>>>the belief of the reasonable observer, who I take it is a
>>>>standin for some fairly substantial body of people who
>>>>believe that.  If that’s the test, then I’m not sure
>>>>how “And no, Eugene, the establishment clause is not
>>>>aimed at accommodating the sentiments of the majority.  If
>>>>the speech caluse can protect one person, why can't the
>>>>establisment clause?” really advances the analysis.
>>>>
>>>>
>>>>
>>>>             Eugene
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>From: Daniel Hoffman [mailto:guayiya at bellsouth.net]
>>>>Sent: Friday, April 23, 2010 1:59 PM
>>>>To: conlawprof at lists.ucla.edu; Volokh, Eugene
>>>>Subject: Re: FW: descriptive scholarly accounts of
>>>>religious identityandjudicial behavior?
>>>>
>>>>
>>>>
>>>>A puzzling question.  I can't think of any other area of
>>>>personal rights jurisprudence where the existence vel non
>>>>of a violation depends on the number of persons objecting,
>>>>or the number of persons who approve of the alleged
>>>>violation.  It takes exactly one person to allege a
>>>>violation.   Few of such allegations succeed, but surely
>>>>the outcomes are not supposed to depend on opinion polls.
>>>>
>>>>The gravest flaw of EC jurisprudence is that the Court can
>>>>make a symbol--or a purpose--secular simply by calling it
>>>>that.  This move makes intolerance the guiding norm.  I
>>>>contend that this particular question--not the entire
>>>>case--should be determined from the standpoint of the
>>>>complaining party, much as sexual harrassment law considers
>>>>(or should) the outlook of a reasonable woman,  I would do
>>>>the same with free exercise claims, but obviously erecting
>>>>religious symbols on public land is not an instance of free
>>>>exercise.  A totally secular public sphere would not
>>>>infringe free exercise and would not, by definition,
>>>>establish any religion.
>>>>
>>>>
>>>>
>>>>Daniel Hoffman
>>>>
>>>>
>>>>
>>>>--- On Fri, 4/23/10, Volokh, Eugene <VOLOKH at law.ucla.edu>
>>>>wrote:
>>>>
>>>>   From: Volokh, Eugene <VOLOKH at law.ucla.edu>
>>>>   Subject: FW: descriptive scholarly accounts of religious
>>>>   identityandjudicial behavior?
>>>>   To: "conlawprof at lists.ucla.edu"
>>>>   <conlawprof at lists.ucla.edu>
>>>>   Date: Friday, April 23, 2010, 2:28 AM
>>>>
>>>>                  What exactly would it mean for the
>>>>   Establishment Clause to "protect one person"?  Does it
>>>>   mean that if one person, for instance, objects to the use
>>>>   of A.D. or B.C. in government documents, he can get that
>>>>   enjoined?  If one person objects to crosses on the seal
>>>>   of Las Cruces, he can get the seal changed?  If one
>>>>   person objects to the name of Las Cruces, he can the name
>>>>   changed?
>>>>
>>>>                  Eugene
>>>>
>>>>   From: Daniel Hoffman [mailto:guayiya at bellsouth.net]
>>>>   Sent: Thursday, April 22, 2010 8:09 PM
>>>>   To: 'conlawprof at lists.ucla.edu'; Volokh, Eugene
>>>>   Subject: RE: descriptive scholarly accounts of religious
>>>>   identityandjudicial behavior?
>>>>
>>>>   I am sorry, but the cross does not refer to "a large
>>>>   group of people."  It refers to Jesus.
>>>>   I attended a parochial high school where we were not
>>>>   allowed to sit with our legs crossed.
>>>>   A cross is a cross is a cross..
>>>>   And no, Eugene, the establishment clause is not aimed at
>>>>   accommodating the sentiments of the majority.  If the
>>>>   speech caluse can protect one person, why can't the
>>>>   establisment clause?
>>>>   _______________________________________________
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>>>>
>>>>
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>>>>
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>>
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>
>--
>Douglas E. Edlin
>Associate Professor
>Department of Political Science
>Dickinson College
>P.O. Box 1773
>Carlisle, Pennsylvania 17013
>717.245.1388



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