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

[Earl Maltz]

I thought about responding to the implications of Professor 
Masinter's statement, but I think I'll just let it speak for itself.

I'm done.

At 09:47 PM 4/29/2010, Michael R. Masinter wrote:
>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 nova.edu                        954.262.3835 (fax)
>
>
>
>Quoting "Lichtman, Steven" <SBLichtman at ship.edu>:
>
>>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  And while this statement was not originally made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
>>http://webspace.ship.edu/SBLichtman/lichtman.htm
>>
>>
>>________________________________________
>>From: Earl Maltz [emaltz at camden.rutgers.edu]
>>Sent: Thursday, April 29, 2010 7:23 AM
>>To: Lichtman, Steven; conlawprof at lists.ucla.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 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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>
>
>_______________________________________________
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