Memorial Wins 5-4
Malla Pollack
mallapollack3 at gmail.com
Wed Apr 28 09:54:27 PDT 2010
Dear List Members,
In advance tribute to our unfortunately soon to depart list-manager, as
well as for other good -reasons, would you all please not continue down the
emerging path of demonizing opposing view-points and the holders of such
view points.
Malla
On Wed, Apr 28, 2010 at 11:43 AM, Earl Maltz <emaltz at camden.rutgers.edu>wrote:
> 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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>>>>>
>>>>>
>>>>>
>>>>> -----Inline Attachment Follows-----
>>>>>
>>>>> _______________________________________________
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>>>>> ________________
>>>>> _______________________________________________
>>>>> To post, send message to Conlawprof at lists.ucla.edu
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>>>>> get password, see
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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
>>
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
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