Scalia and Motive

[Ira (Chip) Lupu]

William & Mary was a private college when the chapel was first built in the 18th century.  By the time the chapel was restored in the 1930's, however, W & M had become a state school, though the Supreme Court had not yet held that the Estab Clause applies to the states. Once the Clause did apply, surely there was a strong question about whether it permitted such a prominent position for a cross in the college chapel (especially when the cross is only about 24 inches square, and is easily moved.)  

So the argument from "history" or "tradition" is a bit facile in this context.  As for Mark Scarberry's comment re: the president's failure to consult -- that might have been wise for a college president in these circumstances, and it might have led to the current compromise (putting the cross in a display case, marked with a plaque containing historical info about how the cross came to be in the chapel, and placing the case against a side wall of the chapel except during Christian worship) more smoothly if he had done so.  But that's an argument about institutional process, not about establishment of religion.  Making Christianity the default designation of a state university chapel seems rather hard to square with any version of a non-Establishment norm, unless you believe in some sort of adverse possession theory of non-Establishment (or, like Justice Thomas, you just think the Clause doesn't apply to the states -- but that's not Scalia's position).  An adverse possession!
  t!
heory would be very convenient for Christians, and very hostile to any attempt by a faith newly prominent in the U.S. to have its symbols displayed in a privileged position by the state.


---- Original message ----
>Date: Tue, 19 Feb 2008 09:34:26 -0800
>From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>  
>Subject: RE: Scalia and Motive  
>To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
>
>	Not having read your article, I can't say much on the subject.
>For everyone on the Court (except Justice Thomas) context -- especially
>the historical meaning -- seems to matter, so one would need to know
>more of the details.  The presence of a 200+-year-old chapel on campus
>would pretty clear be constitutional even for the Ten Commandments
>majority, and possibly also for Justice O'Connor and perhaps Souter,
>Ginsburg, and Breyer.  The question is whether the same would apply to a
>cross that had been there for 70 years (is that right?), and which way
>the liturgical inconsistency you describe with traditional Anglicanism,
>but the broader consistency between chapels and a cross, cuts.  That's
>hard to tell without focusing a lot more on the historical details.
>
>	Eugene
>
>> -----Original Message-----
>> From: religionlaw-bounces at lists.ucla.edu 
>> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Ira 
>> (Chip) Lupu
>> Sent: Tuesday, February 19, 2008 9:29 AM
>> To: Law & Religion issues for Law Academics
>> Subject: RE: Scalia and Motive
>> 
>> So what do you expect Scalia would say about the default 
>> placement of that cross on the altar table in the chapel at 
>> Willima & Mary?
>> 
>> ---- Original message ----
>> >Date: Tue, 19 Feb 2008 09:21:31 -0800
>> >From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>> >Subject: RE: Scalia and Motive
>> >To: "Law & Religion issues for Law Academics" 
>> ><religionlaw at lists.ucla.edu>
>> >
>> >Chip Lupu writes:
>> >
>> >> I think we have to go back to Prof. Finkelman's "realist" 
>> >> question:  Justice Scalia has (both before and after 
>> Smith) voted to 
>> >> uphold Free Exercise claims (Frazee, Lukumi, Locke v. 
>> Davey), but I 
>> >> don't believe he has EVER voted against the government in an 
>> >> Establishment Clause case (including Edwards v. Aguillard, 
>> and Santa 
>> >> Fe Ind. School District v. Doe, which are probably the two 
>> toughest 
>> >> Est CL cases in which to side with the government during 
>> his tenure 
>> >> on the Court.)  So will Justice Scalia ever see an Establishment 
>> >> Clause claim that he likes?  Or does he just find reasons to vote 
>> >> against them all?
>> >
>> >	I take it that Justice Scalia simply has a 
>> substantively very narrow 
>> >view of the Establishment Clause, such as (for instance) Justices 
>> >Stevens, Souter, Ginsburg, and Breyer have a substantively 
>> very narrow 
>> >view of the judicially enforceable article I section 8 
>> constraints on 
>> >fedearl power.  I don't see why we should cast this as "[the 
>> Justices] 
>> >find reasons to vote against [all or nearly all the claims]" -- they
>> >*have* reasons, flowing from their understanding of the substantive 
>> >scope of the constitutional right.
>> >
>> >	Likewise, Justice Stevens has generally taken a very 
>> broad view of the 
>> >Establishment Clause; he has occasionally voted to reject an 
>> >Establishment Clause claim that has reached the Court, but 
>> quite rarely 
>> >(and the only cases that come to mind, at least recently, have been 
>> >unanimous or nearly-unanimous decisions, such as Witters, 
>> Widmar, and 
>> >Lamb's Chapel).  That doesn't mean that "he just finds 
>> reasons to vote 
>> >[for] them all" -- only that his understanding of the breadth of the 
>> >Establishment Clause is such a reason.
>> >
>> >	Eugene
>> >_______________________________________________
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>> Ira C. Lupu
>> F. Elwood & Eleanor Davis Professor of Law George Washington 
>> University Law School 2000 H St., NW Washington, DC 20052
>> (202)994-7053
>> _______________________________________________
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>_______________________________________________
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>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.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053