Death and faith (was RE: Memorial Wins 5-4)

Michael R. Masinter masinter at
Thu Apr 29 18:47:58 PDT 2010

I think Professor Maltz already answered Professor Lichtman's question.

Professor Lichtman wrote:

> If a Jew -- if any non-Christian -- is questioning the propriety of   
> a public Christian cross monument, it is simply this: it is a   
> request for the sponsors of that cross to remember: There Are Other   
> Faiths In The Room.

Perhaps anticipating the question, Professor Maltz wrote:

> Really?  Anyone want to lay odds on whether Herman Hoops was really  
> a Buddhist?

There's not much room left for rational discussion in the face of the  
suggestion that a U.S. citizen who professes a faith other than  
Christianity is lying.

Michael R. Masinter                      3305 College Avenue
Professor of Law                         Fort Lauderdale, FL 33314
Nova Southeastern University             954.262.6151 (voice)
masinter at                        954.262.3835 (fax)

Quoting "Lichtman, Steven" <SBLichtman at>:

> Just got home, and had a lot of time to think on the 280 miles of   
> driving.  Professor Maltz's response has raised an important point,   
> which deserves consideration.  I do not wish to claim the   
> responsibility to address it myself, especially on a list with many   
> excellent writers and thinkers, and I certainly do not wish to make   
> this exchange an isolated back-and-forth.
> But given that Professor Maltz seems to have raised his important   
> point inadvertently ... I am going to take a deep breath and try   
> again.
> What we have here in Sunrise Cross is this: a faith-based statement,  
>  on public land.  And while this statement was not originally made  
> by  government itself, it is currently being backed by the US  
> Congress,  which passed a law barring the monument's removal, and  
> passed  another law transferring public land into private hands  
> solely for  the purpose of guaranteeing this statement's continued  
> audibility.   If the cross was truly a private endeavor, then  
> Congress has no  place to intervene.  But the combination of the  
> cross's location in  a national park and the intervention of  
> government in support of it  means that if an observer questions the  
> propriety of this monument,  then that is a reasonable question to  
> raise.
> Now to the more important point, which I tried to state with some   
> precision last night; Professor Maltz's reaction means I didn't   
> quite get there.  Please understand that I mean this point in a   
> universal fashion.  I do not at all mean that only Jews, or   
> especially Jews, or peculiarly Jews, have cause to object to the   
> monument (insert your own joke about how peculiar a Jew I happen to   
> be; I've already thought of several).  I mentioned Jews last night   
> simply because that's where I am personally coming from.  I mention   
> Jews again now because a particular card was played this morning.
> So here goes ...
> If a Jew is questioning the propriety of a public Christian cross   
> monument, it is not a screech of Jewish victimhood.  It is not a   
> charge of anti-Semitism.  It is not an assault on Christianity.  It   
> is not a claim that Jews have faced any special problems.
> If a Jew -- if any non-Christian -- is questioning the propriety of   
> a public Christian cross monument, it is simply this: it is a   
> request for the sponsors of that cross to remember: There Are Other   
> Faiths In The Room.
> As it happens, America itself is "the room."  In this room, it is a   
> core civic principle that the other faiths -- as well as the lack   
> thereof -- matter.  It is a related core principle that the other   
> faiths, and lack thereof, should not be placed in a position of   
> reminding the sponsors of a public cross that they do matter.  And   
> it is a related core principle that when others do present sucha   
> reminder, their motives should not be characterized as some   
> anti-Christian plot.
> Now, the nature of the process is that sometimes those questions and  
>  reminders take the form of a lawsuit.  If government chooses to   
> respond to such a lawsuit by raising the stakes -- as Congress did   
> when it passed several laws protecting the cross -- that is arguably  
>  a questionable use of public resources.  I agree completely with   
> Professor Maltz here; a truly cost-effective response to this   
> situation would have been welcome ... and that would have been for   
> Congress to reserve its coercive power for other things besides   
> spending federal tax dollars on measures to protect a lovely   
> religious monument which happens to belong on private land.
> Were the Sunrise Cross on truly private land, it would be a   
> beautiful thing.  Even if that cross were visible from miles away;   
> even if someone could stand in City Hall Plaza and see it glistening  
>  in the distant sunlight, it would be beautiful.  When it is not   
> truly private, though -- when it is backed by the vast authority of   
> government, as is the case here -- this beautiful monument is   
> transformed into something else.
> Some may feel that it becomes a weapon pointed against them   
> personally.  I do not, and I very much hope that my remarks last   
> night did not leave that impression.  I do understand how someone   
> could react that way.
> Evidently, though, Professor Maltz can ONLY see opposition to   
> Sunrise Cross taking this form.  It does not.  It can, and often   
> does, take a more communitarian form.  The best legacy of this   
> controversy would be if we all -- defenders and questioners -- could  
>  reorient ourselves towards that broader civic vision.
> 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
> ________________________________________
> From: Earl Maltz [emaltz at]
> Sent: Thursday, April 29, 2010 7:23 AM
> To: Lichtman, Steven; conlawprof at
> 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 centers.
> 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 connotations.
> 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 note-perfect.
>> Now, to use a phrase I often say to my students ... Why am I   
>> telling you this?
>> 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 abortions?
>> 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 place.
>> 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
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