Death and faith (was RE: Memorial Wins 5-4)
mallapollack3 at gmail.com
Thu Apr 29 10:33:17 PDT 2010
It is a case where the government made a conscious choice to accept the
continued presence of the cross (at some point, though I don't know the
facts in enough detail to know exactly when); and the government when
challenged made the conscious choice to by-pass the problem by going through
a sham land-transfer. (Of course, this remains to be litigated further.)
As for Earl's personal lack of responsibility for the statements of the
Justices, I hope that no-one intended such an implication. I certainly am
not accusing him of conscious anti-Semitism. (I do think that whether he
recognizes this or not, his *position* does demean non-Christians.) These
Justices' statements represent one (very loud) public meaning of the
decision and, therefore, are quite relevant to evaluation of any position
which supports the same outcome -- just as the Republican party's southern
strategy decades ago was judged in relationship to its probable outcome
regarding legislation and enforcement; just as flying the Confederate flag
is evaluated in terms of the original documents of the Confederate States
(including their defense of racial slavery).
Public symbols are very important in the real life of society -- otherwise
why litigate burnings of the US flags?
I am going to go back to working on different matters. Therefore, I request
that no one base any arguments on my non-response.
On Thu, Apr 29, 2010 at 12:01 PM, Earl Maltz <emaltz at camden.rutgers.edu>wrote:
> Date: Thu, 29 Apr 2010 07:23:17 -0400
>> To: "Lichtman, Steven" <SBLichtman at ship.edu>, "conlawprof at lists.ucla.edu"
>> <conlawprof at lists.ucla.edu>
>> From: Earl Maltz <emaltz at camden.rutgers.edu>
>> Subject: Re: Death and faith (was RE: Memorial Wins 5-4)
>> It is with considerable reluctance that I continue this conversation, but
>> given the clear imputations of Professor Lichtman's post I feel that I have
>> no choice.
>> I want to begin by apologizing for the tone of my initial post. This list
>> is not the place for such sarcasm. I should have known better.
>> But some of the public and private responses have moved beyond Professor
>> Edlin's initial criticisms to personal attacks based on the substance of my
>> position. Essentially, I stand accused of being, if not openly
>> anti-Semitic, at least grossly insensitive to the special problems faced by
>> Jews in our society.
>> In responding to this charge, I want begin by making two preliminary
>> points. First, I am not responsible for the rhetoric of Justices Kennedy
>> and Scalia. Second, it is important to focus on the precise nature of the
>> substantive issue in Buono (at least as the case stood initially). It was
>> not a case where the government had made a conscious decision to place a
>> Christian symbol on government property. Nor was it a case where the
>> government had chosen to erect a war memorial and chosen a distinctly
>> Christian symbol as the centerpiece for that memorial. Instead, what was
>> initially involved was entirely private decision to erect a cross as a war
>> monument on a remote parcel of government land, far away from any population
>> In that context, if nonChristians had sued to force the government to
>> allow them to erect a parallel monument, such a lawsuit (while not high on
>> my list of personal priorities) would have clearly been connected to core
>> First Amendment principles. But that is not what was happening here;
>> instead, the plaintiffs were attempting to force the government to tear down
>> the monument solely because the form of the monument had religious
>> However it might work out doctrinally, I fail to see how such a lawsuit
>> advances any significant First Amendment value, unless one claims that
>> eliminating discomfort with another person's religious expression is such a
>> value. The government has not chosen to demean the contributions of the
>> members of any religious group; indeed, the government has made no choice at
>> all in this regard. Nor can I see how the lawsuit can plausibly be viewed
>> as advancing the values of religious freedom and religious pluralism in any
>> meaningful sense.
>> Against this background, I continue to hold the view that Buono was
>> nothing more than a vast waste of societal resources whose only significant
>> impact in the real world was a predictable exacerbation of religious
>> animosity. If holding that view makes me an anti-Semite, I plead guilty.
>> At 09:36 PM 4/28/2010, Lichtman, Steven wrote:
>>> (This is a long post which begins as something personal. I hope you
>>> bear with me, and I take no offense if you skip this post entirely.)
>>> I compose this posting while sitting in my parents' living room in
>>> Westchester County, New York. We have just returned from the funeral of my
>>> grandmother, my father's mother, who passed away Monday morning at the age
>>> of 94.
>>> We held a small graveside ceremony. After the rabbi led us in the
>>> standard prayers, my aunt and then my father offered their own words. My
>>> father had not planned to speak; that's not "his way," as he put it
>>> (proving, I suppose, that Watson and Crick were only partially correct).
>>> And yet at the end of the ceremony something led him forward. His words
>>> were completely extemporaneous, and very touching. I was moved by him, and
>>> deeply proud of him.
>>> When everything had been said, there was one more thing left to do. For
>>> those of you unfamiliar with Jewish tradition, at the end of a funeral,
>>> those who wish to share in the grief of those left behind, or who wish to
>>> help begin the journey of who has departed, are invited to take a shovel of
>>> dirt and start the process of fillng in the grave.
>>> I am admittedly not unbiased here -- and, unfortunately, I have attended
>>> several Jewish funerals in recent years -- but this one gesture at the end
>>> of our funeral ceremony has always struck me as poignant and elegant. My
>>> faith has many rituals that leave me perplexed. This one, to me, is
>>> Now, to use a phrase I often say to my students ... Why am I telling you
>>> Tonight, I return from my grandmother's funeral to my childhood home to
>>> discover that the Court has decided Buono, and done so with one of the most
>>> maddeningly incomprehensible decisions I have ever seen. (I have read it
>>> three times and still have no earthly idea what they have actually
>>> **decided** ... but then, it's been a long day.)
>>> I also discover the words of Professor Maltz, who dismissed objectors to
>>> the cross as "zealots," and who identified the defenders of the cross as the
>>> people who are enduring an "assault on their beliefs and values."
>>> After stewing in imperfect silence on this for about an hour, I realize
>>> that where I was this afternoon has lent me a particular focus this evening.
>>> So please indulge my contribution, which tonight is uncluttered by the
>>> constitutional minutiae and policy deconstructions of last week ...
>>> As a Jew, when I see "the unforgettable image of the white crosses, row
>>> on row, that marked the final resting places of so many American soldiers
>>> who fell in that conflict," I can't help but think, none of my people fell?
>>> As a Jew, when I see pro-life protests with mock graveyards featuring
>>> crosses instead of headstones, I can't help but think, no Jewish women get
>>> One need not be a zealot to see death signified by a cross and feel
>>> marginalized. I do not mean to say that marginalization is the message that
>>> is communicated; usually it is not. The veterans who put up the cross were
>>> not trying to say "Jews don't count." But even when marginalization is not
>>> the message that is communicated, it is the message that is received. I
>>> understand that Justice Scalia probably means well when he insists that the
>>> cross covers my people, too ...
>>> ... but that sentiment itself is belittling.
>>> For those of us of a different faith, when we see death commemorated with
>>> another religion's marker and are then told that we should feel honored by
>>> that marker too, that is either to ram someone else's faith down our
>>> throats, or to dismiss as inelegant and forgettable our own traditions of
>>> marking death. This evening, after participating in my own faith's
>>> traditions this very afternoon, I am unwilling to endure that message. And
>>> I am especially unwilling to be told that if this is the message that I
>>> hear, well then I am just being impractical or irrational.
>>> And so I address myself specifically to Professor Maltz.
>>> Whether you comprehend this or not, you must know that to many people,
>>> that cross sends a devastating message: Some Deaths Matter More.
>>> That message is indeed practical. It is a subtle reminder -- an island
>>> of subtletly, admittedly, amidst the roiling waters of "this is a Christian
>>> nation" rhetoric -- a reminder that if you do not share the faith that the
>>> cross symbolizes, then you are not An American In Full. The fact that death
>>> could have been commemorated inclusively but was instead commemorated
>>> tribally was both a choice and a communicative act.
>>> When death is marked with a cross, and when universality is ascribed to
>>> that marker, it is entirely understandable for non-Christians to see and
>>> hear that as a statement that Some Faiths Have Better Meaning Than Others.
>>> We hear that not as a legal or constitutional matter, but as a civic
>>> matter. The "assault on faith" was not perpetrated by those of us who
>>> object to the cross; the assault on faith was visited upon us in the first
>>> It is not for you to dismiss that reaction as zealotry or litigiousness.
>>> It is not for you to tell an onlooker how he or she should absorb meaning.
>>> You do not have to agree with that reaction.
>>> But you must not disrespect it. Not here, not anywhere.
>>> And if you cannot refrain from casting such aspersions, I politely
>>> suggest that you keep them to yourself.
>>> Steven Lichtman
>>> Shippensburg University
>>> Dr. Steven Lichtman
>>> Assistant Professor and Pre-Law Advisor
>>> Department of Political Science - 413 Grove Hall
>>> Shippensburg University
>>> 1871 Old Main Drive
>>> Shippensburg, PA 17257
>>> (717) 477-1845
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