Memorial Wins 5-4

Sanford Levinson SLevinson at law.utexas.edu
Wed Apr 28 11:38:05 PDT 2010


I note for the record Dan Kahan's body of work, involving particularly (but certainly not only) the Second Amendment, that very few arguments are settled on the basis of "evidence," that, instead, what is inevitably being tapped is cultural values and basic ways of looking at the world.  So I think that Eric is right that "this case is not about law or facts but values."  The question that Kahan asks is, "so what else is new?"  What cases (about anything that people really care about) really can be said to rest on "law or facts"?

sandy

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Segall
Sent: Wednesday, April 28, 2010 1:14 PM
To: Earl Maltz; Doug Edlin; Malla Pollack
Cc: conlawprof at lists.ucla.edu
Subject: Re: Memorial Wins 5-4

well, according to Justice Steven's dissent:

 "In its original judgment, the Court of Appeals found that a
well-informed reasonable observer would perceive government endorsement
of religion, notwithstanding the cross’ initial “placement by
private individuals,” based upon the following facts: “that the
cross rests on public land[,] … that Congress has designated the cross
as a war memorial and prohibited the use of funds to remove it, and that
the Park Service has denied similar access for expression by an adherent
of the … Buddhist faith.”

I don't believe for one minute that this fact will change Earl's or
anyone's mind because, of course, this case is not about law or facts
but values (to people on both sides). But since Earl brought it up "I
don't believe that anyone was stopping people  from erecting distinctly
Jewish, Muslim, or
nontheistic monuments to war casualties," I though someone should
mention it. I have not checked Stevens' statement.

Best,

Eric


>>> Earl Maltz <emaltz at camden.rutgers.edu> 4/28/2010 1:49 PM >>>
Well, precisely who is being demonized in this
discussion depends on your perspective.  There's
little point in continuing the discussion much
further, but I want to make a couple of points before I go.

First, I think that it is quite legitimate to
focus on the practical significance of particular
constitutional cases (or lack thereof) and to
think about whether the courts and society as a
whole ought to be spending scarce resources in dealing with them.

Second, you don't seem to want to address the
question of how religious freedom (the core free
exercise value) or religious pluralism (the core
establishment clause value) was threatened by the
existence of the cross.  Subject to correction, I
don't believe that anyone was stopping people
from erecting distinctly Jewish, Muslim, or
nontheistic monuments to war casualties.



At 01:05 PM 4/28/2010, Doug Edlin wrote:
>Hi Malla,
>
>I greatly appreciate your motivations here, but
>you needn't worry.  It turns out that "nobody"
>was bothered by this, except for the "zealots of
>the ACLU" and "People for the American Way" or
>those in "similar _____ groups."  The nice thing
>is that we don't have to worry about demonizing
>them, because their views have "no practical
>significance."  Whew. Glad we settled that.
>
>Earl, if this was your attempt at altering the
>tone of your discourse, you might need to try again.
>
>Doug
>
>Malla Pollack wrote:
>
>>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 <mailto: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
>>                     <mailto:conlawprof-bounces at lists.ucla.edu> (on
>>
>>                 behalf of Rick Duncan <nebraskalawprof at yahoo.com
>>                 <mailto:nebraskalawprof at yahoo.com>>)
>>
>>
>>                     Subject: Memorial Wins 5-4
>>                     To: "'conlawprof at lists.ucla.edu
>>                     <mailto:conlawprof at lists.ucla.edu>'"
>>                     <conlawprof at lists.ucla.edu
>>                     <mailto: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
<mailto:VOLOKH at law.ucla.edu>>
>>                     wrote:
>>
>>                     From: Volokh, Eugene <VOLOKH at law.ucla.edu
>>                     <mailto:VOLOKH at law.ucla.edu>>
>>                     Subject: RE: FW: descriptive scholarly accounts
of
>>                     religious identityandjudicial behavior?
>>                     To: "'conlawprof at lists.ucla.edu
>>                     <mailto:conlawprof at lists.ucla.edu>'"
>>                     <conlawprof at lists.ucla.edu
>>                     <mailto: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
>>                     <mailto:guayiya at bellsouth.net>]
>>                     Sent: Friday, April 23, 2010 1:59 PM
>>                     To: conlawprof at lists.ucla.edu
>>                     <mailto: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
<mailto:VOLOKH at law.ucla.edu>>
>>                     wrote:
>>
>>                      From: Volokh, Eugene <VOLOKH at law.ucla.edu
>>                     <mailto:VOLOKH at law.ucla.edu>>
>>                      Subject: FW: descriptive scholarly accounts of
>>                     religious
>>                      identityandjudicial behavior?
>>                      To: "conlawprof at lists.ucla.edu
>>                     <mailto:conlawprof at lists.ucla.edu>"
>>                      <conlawprof at lists.ucla.edu
>>                     <mailto: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
>>                     <mailto:guayiya at bellsouth.net>]
>>                      Sent: Thursday, April 22, 2010 8:09 PM
>>                      To: 'conlawprof at lists.ucla.edu
>>                     <mailto: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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>>                 list cannot be viewed as private.  Anyone can
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>>                 <mailto:Conlawprof at lists.ucla.edu> To subscribe,
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>>             _______________________________________________
>>             To post, send message to Conlawprof at lists.ucla.edu
>>             <mailto:Conlawprof at lists.ucla.edu>
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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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>
>--
>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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