Crosses: Hypothetical v. Actual

[Robert Sheridan]

PS:  The test:  Tell me why you want the cross and I'll tell you whether 
its a violation.

We have a way of asking the wrong questions, as though to ask the right 
question is to risk giving away the game.

On 4/30/2010 9:41 AM, Robert Sheridan wrote:
> http://tinyurl.com/2dxr3f4
>
> (Mt. Davidson, supra, Wiki).
>
> Suppose I believe that the FA guaranty that government should 
> 'establish' no religion, meaning to prefer one to another, is 
> correct.  Further that some of my religious friends have the notion 
> that the symbol of their faith should be erected on my public land.  
> What does that make me?  After all, in America, I have the right to my 
> own beliefs.
>
> And what does that make them?
>
> What is it that urges someone to build, or to propose that government 
> build for him, a cross that is 103' feet tall, on a mountaintop, 
> elevation 900+', overlooking the city, out of concrete and steel, to 
> hold Easter services, and to get the president of the U.S. (FDR, in 
> the case of the Mt. Davidson cross), to illuminate the cross?
>
> What is it that impels someone to (a) institute prayer in the public 
> schools, (b) object to their removal, as in Engle v. Vitale, and (c) 
> resort to subterfuge to permit such banned prayer by promoting the 
> alleged right of students to say their private prayers in public on 
> the pretext that these are private actions not attributable to the 
> government running the public schools, or by promoting a moment of 
> silent prayer?
>
> Courts and lawyers are supposed to be good at analyzing seemingly 
> complex matters for what they really are.  A sham deed can be no more 
> than a security instrument, for instance.
>
> What seems to be the difficulty in recognizing certain things for what 
> they are?  Prayer to whom, or what, for example?  Obviously the 
> promoters of school prayer and public monuments of a religious nature 
> have something in mind.  We can be reasonably sure that they are not 
> promoting the erection of a 103' tall concrete and steel seated 
> Buddha, or a 103' tall concrete and steel mezuzah, on a mountaintop, 
> although there is the old gag that this is not a cross, it's a mezuzah 
> with handle-bars, possibly invented by a former yeshiva student tired 
> of the all the fooling around.
>
> If establishing the cross on public land for the public to see is not 
> a step in the direction of government establishment of religion, why 
> not then augment it with other harmless activities such as prayer in 
> school and the placement of Ten Commandment icons in civic buildings?
>
> If you doubt that this is religious activity, see who objects to their 
> removal.  Avowed Christians of one ilk or another.  Suddenly 
> government cannot support them in their efforts to proselytize 
> others.  Is this not a commandment of their religion?  Isn't this why 
> we see such things?
>
> Isn't a great deal of the legal hair-splitting we're discussing merely 
> an effort to distinguish away what is there in plain sight for all to 
> see?  A 103' tall concrete and steel icon that people of a certain 
> faith pray before in mass ceremonies?  It's not as though they don't 
> have the right to hire a stadium to conduct mass, as a private matter, 
> such as when the pope visits NYC and the privately owned Yankee 
> Stadium is secured to accommodate thousands of participants.
>
> What I see in such controversies is an exercise in self-centered 
> arrogance, the feeling that my faith-needs come before yours, so to 
> hell with you.
>
> My right to be left alone (Brandeis's most fundamental right, in 
> Olmstead, the famous wiretap case) is being infringed upon by the 
> claim of a right by religious others to shove their faith down my 
> unwilling throat.  I hadn't thought that they had this right in the 
> U.S., but since we keep arguing about it, apparently they do.  And so 
> the fight continues, destined not to subside any time soon.
>
> One of the striking things about the argument in such cases is the 
> evasion practiced by those seeking to uphold their claim of right to 
> engage in the school prayer, the cross-building, and the public 
> displays of religious symbols, theirs, in city halls, public buildings 
> such as courthouses, public parks, etc.  These good folk seem to have 
> an aversion to stating their motives, their motivation, their intent.
>
> What is their intent?  To satisfy what urge?  To say that "My religion 
> enjoys government approval and support while yours doesn't, nyah, 
> nyah, nyah?"
>
> To invoke the alleged blessings of their god on people who may not 
> necessarily think that their god, as interpreted by their religious 
> leaders, is all that wise, powerful, and benevolent?
>
> I see a failure to engage, in this debate, on the issue of what is 
> really going on.
>
> If, hypothetically, one of the other religious groups moved to erect, 
> out of concrete and steel, 103' tall, a religious work on a mountain 
> overlooking a city, but they claimed that it wasn't really a religious 
> symbol but a work of art or history or an emblem of either a common or 
> universal culture, wouldn't you expect the cross-building types to ask 
> what is really going on here?  Wouldn't they say that we ought to be 
> able clearly to see through such claims as window-dressing, sham 
> arguments to get the thing built and to keep it there in the face of 
> the policy that government is not supposed to be in the religion 
> business and vice-versa?
>
> It would certainly be interesting to see why the proponents of such 
> public religious observances feel that they are not religious at all, 
> you see, but fight like hell when asked to please cut it out, they're 
> infringing on the right of people who don't share their views to be 
> let alone.
>
> Is there something about addressing this question that is taboo?
>
> I say let's break this taboo.
>
> After all, this is America and we ought to be able to speak of such 
> things.
>
> rs
>
>
>
>
>
>
>
>
>
> _______________________________________________
> 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.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20100430/07d5d9dc/attachment.htm>