Warner v Boca Raton
Michael deHaven Newsom
mnewsom at LAW.HOWARD.EDU
Mon Oct 4 12:57:13 PDT 1999
The answer is easy. As I have said before, religion has two components to it --
cultus and ethos. Cultus is not merely a matter of words being said, sung and
preached in an assembly. Liturgy and other devotional practices are an
expression or manifestation of cultus. So in this case, what the plaintiffs are
seeking to defend and the idiot of a judge fails to appreciate is the cultic
dimension of religion.
If the FE clause does not speak to, or defend cultus, then it speaks to and
Michael deHaven Newsom
School of Law
Marty Lederman wrote:
> No doubt, the placement of the vertical markers in this case is (or might
> fairly and sincerely be considered) --
> (i) "a prime subject of religious concern";
> (ii) a "tradition" among people of a particular religious faith;
> and (iii) a "practice . . . derived from a religious tradition."
> Moreover, having a vertical cross over your grave in "solidarity" with Jesus
> having been crucified on an erect cross certainly is conduct influenced by
> religious belief, strongly related to religious belief, understandable
> principally in relation to religious belief, etc. And placing a vertical
> symbol on a grave might be an important way of demonstrating -- in a more
> conspicuous and dramatic fashion than a horizontal symbol -- the importance
> or centrality of faith in the life of the deceased and/or their loved ones.
> But the difficult question, I think, is how the erection of such markers can
> fairly be said to be the *exercise* of religion.
> At least some of the plaintiffs, as I understand it, wish to erect vertical
> statutes so as to *facilitate* their religious exercise: For instance,
> "Barbara Cavedoni placed a standing cross on her loved one's grace site
> because the crucifixion and death of Christ has for centuries been depicted
> on a standing cross and therefore, in her view, it would be disrespectful to
> honor and to pray to a horizontal cross"; and "Eleanor Danciu believes the
> statutes of the Blessed Mother and St. Francis which decorate her parents'
> graves are her channels of prayer to God." As to these plaintiffs, the city
> ordinance certainly burdens their religious exercise, and it should not
> matter whether their beliefs are idiosyncratic or whether their desire to put
> up the vertical markers reflects the tenet, practice or custom "of a
> religious tradition." (Whether it's a sufficiently direct or substantial
> burden on their religious exercise is, of course, another question, akin to
> the discussion we had awhile back about the city that removes a particular
> bus route, thereby making it more difficult for congregants to pray in
> But how is it that the plaintiff who wishes to place the cross on his wife's
> grave to "symbolize" that she will "rise again" engaged in the *exercise* of
> religion? I'm don't mean to be arguing that he's not -- just that it's not
> obvious to me, and I'm curious what the argument might be.
> Moreover, and wholly apart from the question of religious "exercise," insofar
> as the plaintiffs wish to erect vertical markers in order to express
> religious views, beliefs, symbolic messages, etc., wouldn't an exemption for
> such persons -- not provided for nonreligious markers -- raise serious Free
> Speech problems? (The Heffron problem.)
> Marty Lederman
> (in my personal capacity)
> Vance Koven writes:
> Having read the case now, I get the distinct impression the judge was
> struggling to come up with an excuse to rule against the plaintiffs. He
> appeared to be obstinately and willfully ignorant of the fact that for
> hundreds of years burial arrangements have been considered a prime subject
> of religious concern.
> As to Jews, the judge said that although Ashkenazic Jews had a tradition
> of maintaining vertical headstones, they didn't uniformly do so in Israel,
> as if that mattered. Even if a minority of a particular religion
> maintained a certain traditional religious-influenced practice, it is a
> phenomenal stretch to rule that such a practice does not derive from a
> religious tradition; he seemed to equate non-universality with
> idiosyncrasy, which is patently unsound reasoning. With Christians I
> suspect the situation is less clear, since there isn't some specific
> denominationally-sanctioned doctrine involved, but go find churchyards
> without vertical headstones!
> What was even more sinister was the strong hint that even the states
> couldn't pass RFRAs because, in effect, only the US Supreme Court could
> determine what protection fundamental rights were allowed to receive.
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