Here’s the issue that drew my attention to the “rummy name” case, People v. Morris (Cal. Ct. App. Oct. 5) (which, incidentally, has some quite horrific facts as well as an interesting usage question and an interesting government-and-religion legal question):

The prosecutor wore a very thin, metallic cross measuring about an inch by one-half inch on a delicate chain. The trial judge observed that she would not have even noticed it if it had not been called to her attention. Morris claims the trial court deprived him of a fair trial by allowing the prosecutor to wear the cross. Although in a hypothetical case the constitutional issues could be grave, we conclude that on the record before us Morris’s right to a fair trial has not been compromised. Nor do we find on these facts a violation of the establishment clause of the United States Constitution….

[Past] cases involving clerical collars are of marginal utility. As the trial court pointed out, clerical collars send a far different message than a small, hardly noticeable silver cross. The clerical collar connotes a special religious status conferred on only those who have achieved a prescribed stature and poses the danger that jurors might ascribe an authority or credibility to a person who has earned the collar. Thus, it is hardly surprising that courts would find the collar breaches the neutrality the Constitution demands.

Nor, however, do we find the cases cited by the Attorney General dispositive…. [They] involve public employees wearing small crosses as the prosecutor did in this case, they were civil cases brought by the employees to vindicate their rights under the First Amendment to the United States Constitution. Neither case implicated a criminal defendant’s right to a fair trial. The courts in both cases emphasized the importance of a public employee’s right to free speech and the free exercise of his or her religion, but neither had to consider the important and countervailing right of a criminal defendant to a fair trial….

We agree with defendant that the Constitution preserves the religious neutrality of the courtroom and it may be necessary to restrict some exercise of the First Amendment to avoid violating the establishment clause. We also believe that because the prosecutor is, in the eyes of the jurors, the personification of the state, we must be particularly sensitive to a defendant’s claim that any religious adornments have the potential to cross the fuzzy line between the free exercise and establishment clauses of the First Amendment. A criminal defendant’s right to a fair trial is an interest far stronger than that of the public employers in Draper and Nichols and one we must consider with extreme care and sensitivity….

[The trial judge] found that the cross was small in size and barely noticeable. She believed any message the cross might convey was ambiguous, as the slender silver cross could be construed equally as a fashion statement or as a religious symbol. Morris does not contest the factual findings of the trial court.

As a result, we do not believe the prosecutor’s small cross compromised the fairness of the trial in this case, and we are unwilling to restrict a lawyer’s First Amendment right to wear a small piece of jewelry the trial judge barely noticed and found unlikely to influence anyone who might have seen it….

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    67 Comments

    1. John Armstrong says:

      One needs only to notice models in “Girls Gone Wild” style videos wearing them to see how much religious meaning is inherent in the wearing of such icons. Of course, this is just anecdotal. I propose a grant to fund further in-depth research.

    2. PersonFromPorlock says:

      Heck, Madonna wears crosses – often with little else. I don’t really think it means she’s doing Christian rock.

    3. ARCraig says:

      Sounds like it may be a reasonable complaint in a case somehow involving religious issues- if the prosecution was making a big deal out of the defendant’s supposed satan-worship, for example. But for most cases I don’t see how it could be a problem.

    4. DangerMouse says:

      Some people will do anything to destroy public expressions of Christianity. Sad.

    5. ajk says:

      Some people will do anything to destroy public expressions of Christianity. Sad.

      Will do anything to try to keep out of jail seems more accurate in this case.

    6. Cato The Elder says:

      I don’t know if this Morris fellow is just an irredeemably evil person at his core, to be able do what he did to that kid, but reading the facts of this case should cause even the most fervent libertarian to think hard about the efficacy of legalizing truly destructive drugs like methamphetamine. Maybe it’s just that I’ve been reading an exaggerated sample of stories, but the drug seems to really dehumanize its users.

    7. Eric says:

      I remember a Girls Gone Wild commercial with a young lady saying “this is my first time.” I was skeptical. If she were wearing a cross, though, maybe it really was.

    8. zippypinhead says:

      Well, the outcome is obviously correct, but I’m shocked that this issue warranted a full analysis in a published appellate opinion, even in hyper-politically-correct California. I’m quite bothered by the balance the court struck in favor of the defendant’s right to a fair trial as basically overwhelming any free exercise right other courtroom participants might have to wear a common and unobtrusive piece of religious jewelry like a silver cross pendant. God knows (pun intended) what the court would have done if the judge, prosecutor or even the bailiff had been a male Orthodox Jew with a yarmulke…

      The one exception where I think the courts would need to be especially cautious would be a case in which religion plays some role on the facts. But notwithstanding the defendants’ “rummy names,” the opinion didn’t suggest the criminal act was the result of some sort of Satanic cult ritual, religious hate crime or had other facts with especially sensitive religious overtones. Just your average, garden variety abuse and murder of a helpless toddler by a drug-addicted parent and his equally strung-out codefendant. Both of whom deserve a fate significantly worse than anything that could possible be permissible under the Eighth Amendment, under either an originalist or an “evolving standards of decency” analysis, IMHO…

    9. bigjohn says:

      Isn’t the easy solution to transfer the portion of the prosecutor attached to the small cross to the VFW?

    10. Eugene Volokh says:

      zippypinhead: It’s an unpublished opinion, for whatever it’s worth.

      bigjohn: Very funny!

    11. zippypinhead says:

      It’s an unpublished opinion, for whatever it’s worth.

      OK, although that does bring up the semi-off-topic quibble that publication status has become a fascinating metaphysical question in this day and age, especially given the general erosion in court rules that once-upon-a-decade prohibited the citation of “unpublished” opinions as precedent. Some defendant is inevitably cite to the analysis in this case as requiring, for example, a total prohibition on swearing of witnesses with a Bible in criminal cases (which may already have gone by the boards in California for all I know; fortunately I practice in much less progressive jurisdictions).

      BTW: I agree – bigjohn clearly wins the thread!

    12. whit says:

      i have to say that i don’t support prosecutors wearing any religious jewelry. it’s inappropriate in the same way that a police officer or firefighter who wears a cross (visible ) is.

      they are a representative of the state, performing their official duties, and in the case of a prosecutor, let’s be realistic. a big part of trials is about the stage show, and if a juror likes a prosecutor or a defense attorney, they are more likely to support that lawyer’s side. it’s just not kosher imo. i have NO problem with a prosecutor wearing a visible cross OUT of court but still on duty. but not in court, or when meeting with witnesses, victims, etc.

    13. ARCraig says:

      Maybe it’s just that I’ve been reading an exaggerated sample of stories

      Maybe?

    14. frump says:

      jess, every time I begin to think that just perhaps we should abolish the death penalty, I read a case like this and only wish we could give it more often and quicker.

      And does anyone have any faith in CPS these days?

      My God.

    15. Allan says:

      Dangermouse,

      Please explain why we need public expressions of Christianity (or any other religion).

      Then you can explain why public expressions of Christianity are proper for public figures acting in their public capacity.

      Just to be clear, I don’t think that private displays of Christianity are a problem. I don’t like them, just as I am not crazy about public displays of any religion. But they are not a problem.

    16. Dave N says:

      bigjohn: Isn’t the easy solution to transfer the portion of the prosecutor attached to the small cross to the VFW?

      Not only the winner of the thread but definitely the winner of the week.

    17. Borris says:

      DangerMouse: Some people will do anything to destroy public expressions of Christianity.Sad.

      Yes, but their hate is politically correct hate.

    18. Vinny B. says:

      This ruling is a complete travesty. It is very arguable that this prosecutor was adhering to Biblical law and not man-made law. That is more than enough to show a Constitutional violation as the First Amendment gives people the unfettered right to have their lives completely free of religion. And things like this will continue as long as we have a Radical Religious Right Wing Supreme Court that has no clue about what the Constitution means. After all, President Obama is somwehat Muslim, he does not push Sharia law on us.

    19. readery says:

      Can an Orthodox Jew, a Rastafarian, etc. be a prosecutor? Can one be prohibited from being a prosecutor?

    20. Dave N says:

      Is VinnyB doing parody? If so, it’s great. If not, it’s scary.

    21. Moda says:

      Can an Orthodox Jew, a Rastafarian, etc. be a prosecutor? Can one be prohibited from being a prosecutor?

      In Arkansas, Tennessee, and Texas, the state constitution prohibits atheists from holding public office. Arkansas, at least, goes further and forbids atheists from testifying in court.

    22. Peggy DeStefano says:

      Setting up the thread for next week’s winner?

      A rasta, a rabbi, and a prosecutor wearing a cross walk into a bar…

    23. Ricardo says:

      I agree with whit that it’s probably not appropriate for an agent of the state to be wearing religious symbols in the course of her official duties. At the same time, it should never be enough to declare a mistrial.

      I wonder how Dangermouse would react if the prosecutor was a Muslim woman who insisted on wearing a headscarf in the courtroom. People who want headscarves banned should be prepared to accept the banning of cross necklaces as well. That’s what France did when it banned all religious symbols in public schools.

    24. Soronel Haetir says:

      And just how would that Arkansas prohibition fare if put to the test? I would expect that like so many other things it is still on the books but unenforceable.

    25. K. Chen says:

      A cross, however large or small is little different from a headscarf, a rosary, a tattoo, a prayer cloth, a small dagger, a particular way of keeping facial hair. None of those things should be banned in general, even for public officials. What should be controlled is the use of those icons of affiliation to persuade a jury. I don’t care of a state prosecutor prays every time before he or she begins trial – I do care if he or she loudly invokes God immediately before closing arguments.

    26. Law Student says:

      Can someone please explain the VFW joke to me?

    27. Ryan Waxx says:

      Allan: Dangermouse,Please explain why we need public expressions of Christianity (or any other religion).

      The beauty of the first amendment is that no one has to explain to your satisfaction “why we need public expressions of Christianity”. That you can ask such a question without irony says much about your regard for freedoms for other cultures.

    28. anonymous says:

      Law student, Do you own homework. Or pick up a newspaper. You’ll get it.

    29. Peter says:

      Is it possible that the issue is one of decorum and not one of legality? While I have read Madison’s two vetoes of bills appropriating lands for churches and understand that he understood the First Amendment to mean no support by the state for religious organizations, I dont think the Constitution requires rooting out all religious symbols from public life–or from the person of public officials, even prosecuting attorneys. As it is, the law built up the Sup Ct on the issue gives imaginitive persons–law profs–sensitive to perceived attempts to impose religion upon others, the ability to act on their paranoia. The mere fact that someone could think a cross on a chest violates the separation of church and state is yet another reason for imposing some limits on federal judges, such as giving the state legislatures the power to remove them. In sum, the very fact that lawyers, judges and, evidently, the law prof wrote this post, could discuss the issue with such earnestness indicates we have constitutionalized the foibles and prejudices of the legal establishment.

    30. Ricardo says:

      Ryan Waxx: The beauty of the first amendment is that no one has to explain to your satisfaction “why we need public expressions of Christianity”. That you can ask such a question without irony says much about your regard for freedoms for other cultures.

      It’s about public expressions of religion in a courtroom by the state’s prosecuting attorney. If you allow prosecutors to wear a symbol of one religion (Christianity) you must also allow them to wear symbols of other religions (Islam, Judaism, Hinduism, etc). I can see a good argument for keeping all such symbols out of a courtroom during a matter as solemn as a murder trial but I think if such a rule is to be enacted it should come from the legislature.

    31. egd says:

      Law Student: Can someone please explain the VFW joke to me?

      See here.

    32. egd says:

      Ricardo: If you allow prosecutors to wear a symbol of one religion (Christianity) you must also allow them to wear symbols of other religions (Islam, Judaism, Hinduism, etc).

      So based on this decision, we must permit Jewish prosecutors to wear a small and barely noticeable Star of David, Muslim prosecutors to wear a small and barely noticeable Crescent, and Hindus to wear a small and barely noticeable symbol of their preferred avatar.

      A more important question should be whether a Jew, who wears a yarmulke (hardly small and barely noticeable) as required dress of his religion, can be constitutionally prohibited from being a prosecutor. I would say no.

      edit: and as a completely unrelated, but definitely on-EV topic…would the second to last sentence end in a question mark or period?

    33. Smooth, like a Rhapsody says:

      I think the primary issue here is the due process claim, not the establishment clause claim. The argument is that the cross is an attempt to get the jury to conclude that the DA is more moral or more trust-worthy than the defendant. Thus, the same argument could be used for a wedding ring (in a spousal murder case) or a cancer ribbon, or any other similar accoutrement.

    34. Gabriel McCall says:

      egd: edit: and as a completely unrelated, but definitely on-EV topic…would the second to last sentence end in a question mark or period?

      With a period. You’re not asking a question, you’re stating what the question is.

      Compare:
      One might ask, “why did the chicken cross the road?”
      versus
      One might ask why the chicken crossed the road.

      while this is obviously wrong:
      One might ask why the chicken crossed the road?

    35. Philistine says:

      egd: A more important question should be whether a Jew, who wears a yarmulke (hardly small and barely noticeable) as required dress of his religion, can be constitutionally prohibited from being a prosecutor. I would say no.edit: and as a completely unrelated, but definitely on-EV topic…would the second to last sentence end in a question mark or period?

      In light of the recent Third Circuit case holding a muslim police-woman could be prevented from wearing a head-scarf on the job, I’m not so confident a prosecutor’s office policy preventing any religious garb or symbols wouldn’t be upheld.

    36. Pintler says:

      I may be atypical, but when I have been on juries I assumed every aspect of the attorney’s behavior and attire was a calculated attempt to scam me :-). The power suit, the rumpled Clarence Darrow look, folksy humor, bow ties, or cowboy boots – I figured these guys are actors dressing for the part. I hope they were, anyway, it’s their job. They could have been in an Amish suit or papal vestments, and I would have figured they rented them for the occasion.

      Moreover, who cares if the attorney is a saint or sinner – I don’t care about their credibility, I care about the credibility of the witnesses, and what they are wearing offers no information about that.

    37. egd says:

      Gabriel McCall: With a period. You’re not asking a question, you’re stating what the question is.

      Ah. Makes sense, thank you.

      Pintler: Moreover, who cares if the attorney is a saint or sinner – I don’t care about their credibility, I care about the credibility of the witnesses, and what they are wearing offers no information about that.

      It is not uncommon for an attorney to purchase a suit for a witness (billed to the client of course) before trial, if the attorney expects him to testify to something important.

      Style does matter, at least in the minds of attorneys.

    38. Lawyer says:

      It’s pretty standard fare for defendants to wear crosses — sometimes quite large –during their trials. I imagine there would be a pretty huge uproar if that were prohibited.

    39. Laura(southernxyl) says:

      The beauty of the first amendment is that no one has to explain to your satisfaction “why we need public expressions of Christianity”.

      Exactly.

      I wonder if we should just make a list of civil rights that Amercian citizens who happen to be employees of the government should have to give up in order to maintain their employment.

      In this case, it seems fairly obvious that the defense was reaching. The judge considered the argument seriously and then rejected it. Best possible outcome, IMO.

    40. Pintler says:

      It is not uncommon for an attorney to purchase a suit for a witness

      Yeah, and it showed (witness is ‘between jobs’, and wearing a fresh off the rack suit :-)).

      Style does matter, at least in the minds of attorneys.

      Sure, they think so, but at least for the small sample size (N=12) I am aware of, the jury noticed the attempts, and ignored them. Maybe I’m the anomaly – Gerry Spence sure seems to work on the persona, for example, but I think it has little effect on most juries. Maybe the theory is that it is unlikely to matter, but costs little?

      To me (and, I think, my juror colleagues), we ignored it. If anything, it reminded us that these guys were trying to manipulate us, and I suppose that’s a good thing to be reminded of.

    41. Dennis N says:

      The standard for the defendant is different, though. He has a right to defend hinself, and a certain amount of false light is inherent in that. The Prosecutor is supposed to stand for Justice.

    42. Dave N says:

      egd,

      Unlike other words, “whether” never signals a question, although I frequently see attorneys phrase a legal issue for an appellate court in that fashion. For example, “Whether there was sufficient evidence to convict the defendant?” is not only not a question, it is also not a sentence.

      Laura(southernxyl) wrote:

      In this case, it seems fairly obvious that the defense was reaching. The judge considered the argument seriously and then rejected it. Best possible outcome, IMO.

      I couldn’t agree more. Well put.

    43. Simon Dodd says:

      egd says:

      A more important question should be whether a Jew, who wears a yarmulke (hardly small and barely noticeable) as required dress of his religion, can be constitutionally prohibited from being a prosecutor. I would say no.

      A yarmulke would seem closer to the cases involving clerical collars than this one, wouldn’t it?

      Lawyer says:

      It’s pretty standard fare for defendants to wear crosses — sometimes quite large –during their trials.

      They, however, are not there representing the state.

    44. Laura(southernxyl) says:

      Is the prosecutor supposed to stand for Justice in a way that the defense attorney isn’t?

      I’m just asking.

    45. Gabriel McCall says:

      Laura(southernxyl): Is the prosecutor supposed to stand for Justice in a way that the defense attorney isn’t?I’m just asking.

      Actually, yes. The official task of the defense attorney is “zealous advocacy”, i.e. get your client off by any (lawful) means possible. The thinking there is that if the prosecution can not overcome the most zealous defense, then there is not enough certainty to justify conviction. “Better that ten guilty persons escape than that one innocent suffer” and all that. In contrast, prosecutors are (officially) expected to pursue justice rather than victory.

      Or, in short: a prosecutor who becomes convinced of the defendant’s innocence is supposed to drop the case, but a defense attorney who becomes convinced of his client’s guilt is supposed to keep fighting just as hard.

    46. Philistine says:

      Laura(southernxyl): I wonder if we should just make a list of civil rights that Amercian citizens who happen to be employees of the government should have to give up in order to maintain their employment.

      I would think that Government employees actually give up less rights than non-government employees in order to maintain their employment, as there are often constitutional issues as well as statutory issues involved in their employment.

    47. Dennis N says:

      Simon Dodd says:

      A yarmulke would seem closer to the cases involving clerical collars than this one, wouldn’t it?

      I don’t think so. The laity wear yarmukles. Priestly garb is reserved for clergy, who are often granted an elevated status. A yarmukle would be more like a Sikh’s turban or a Muslim headscarf, but not as imposing as a burkah.

    48. Allan says:

      Ryan,

      Expressions of religion by the government should be prohibited.

      Expressions of religion by individuals are protected.

      The question is whether the prosecutor in this case should be treated as an individual or the government. There are two possible reasons the person wore the cross: 1) personal faith or 2) to influence the jury. IMO, the danger of 2 outweighs 1.

      The same goes for prayer at public meetings and public displays of religion, i.e., nativity scenes. That is, the risk of perceiving the government of supporting one religion over another almost always should trump personal faith.

      That is not to say personal faith is not important. To the contrary. But personal faith is just that: personal.

    49. Laura(southernxyl) says:

      Alan – does your concept extend to the President, for instance, congratulating Muslims upon the end of Ramadan? Or being seen going to church?

    50. Allan says:

      Laura,

      The president is a special issue. He is always on duty.

      However, when he goes to church (to pray), he is going as an individual, not as the president. And the president can extend congratulations to anyone for anything, it does not endorse a religion.

      Were the president to insist that his cabinet attend church with him, that would be wrong. Were the president to invoke a religion at a public ceremony, that would be wrong.

      But, if the president wants to celebrate Christmas in the White House with his family, that would not be wrong. If he wants to host a Seder at the White House, that would not be wrong. If he wants to seek spiritual advice from Billy Graham, that would not be wrong.

      It is a close call. What if he wanted to put a fish symbol on the back of his limo? What if he wanted to paint a huge cross on Air Force 1? I would probably have issues, then.

    51. zippypinhead says:

      However, when he goes to church (to pray), he is going as an individual, not as the president. And the president can extend congratulations to anyone for anything, it does not endorse a religion.

      Were the president to insist that his cabinet attend church with him, that would be wrong. Were the president to invoke a religion at a public ceremony, that would be wrong.

      So, to play out your assumptions to their logical (?) conclusion, how do you feel about POTUS doing the following:

      1. Attending and speaking at the National Prayer Breakfast?

      2. Lighting the National Christmas Tree on the Ellipse (nb: on Federal property not [yet] deeded to the VFW…)?

      3. Appearing in his capacity as the Head of State at the religious funeral of a foreign dignatary?

      4. Wearing a cross during an official appearance (a la the prosecutor in the case at hand)?

      5. Taking the Oath of Office on a Christian Bible and/or ending the Oath with “so help me God” (oh wait, that one’s been litigated already…)

      Methinks that whatever the First Amendment Establishment Clause means, it surely doesn’t require public officials to pretend that religion, whether theirs or others’, does not exist.

    52. Allan says:

      Zippy,

      The office of the president is a tough one. If the message is “I support this religious belief,” I think it is ok. If the message is “Because I support this religious believe, you should do that,” then it crosses the line.

      I DO NOT want to encourage a hijacking, but the most relevant conversation on this is abortion. If a president said “God ordained that unborn children are humans, so I will not support laws allowing abortion,” I would think it improper. However, if he said “unborn children are humans, so I will not support laws allowing abortion,” I would have no problem with it. In the former, he would be asking me to share his belief in God. In the latter, he is just asking me to share his opinion.

    53. speedwell says:

      I think a useful test of whether the President is acting in his official capacity or as an individual would be, “Would he do this even if he wasn’t a high official?” In other words, in Zippy’s examples I would say 1, 2, and 3 are clearly “official capacity” by law or by tradition, 4 is questionable and I’d say a conscientious man would leave the cross under his shirt, and 5 is personal, since he would be testifying as himself and not as the office of the President, if I have this right.

    54. mariner says:

      egd:

      Thank you for the link to the cross case. I was wondering about that too.

    55. ajk says:

      There are two possible reasons the person wore the cross: 1) personal faith or 2) to influence the jury. IMO, the danger of 2 outweighs 1.

      So is a prosecutor allowed to wear a kippeh? A hijab?

    56. egd says:

      Pintler: Sure, they think so, but at least for the small sample size (N=12) I am aware of, the jury noticed the attempts, and ignored them. Maybe I’m the anomaly – Gerry Spence sure seems to work on the persona, for example, but I think it has little effect on most juries. Maybe the theory is that it is unlikely to matter, but costs little?

      You probably didn’t see him before the suit. He probably had ragged jeans with a chewing tobacco-imprint in the back pocket, a sweat-stained sleeveless undershirt, unbuttoned ragged flannel shirt, and smelled like a mix between cigarettes and moonshine.

      The suit is worth it.

    57. Perseus says:

      Allan: Zippy,The office of the president is a tough one.If the message is “I support this religious belief,” I think it is ok.If the message is “Because I support this religious believe, you should do that,” then it crosses the line.I DO NOT want to encourage a hijacking, but the most relevant conversation on this is abortion.If a president said “God ordained that unborn children are humans, so I will not support laws allowing abortion,” I would think it improper.However, if he said “unborn children are humans, so I will not support laws allowing abortion,” I would have no problem with it.In the former, he would be asking me to share his belief in God.In the latter, he is just asking me to share his opinion.

      So, then, it would be improper for the president to invoke the Declaration of Independence (e.g., “The Creator has ordained that I respect the rights of the people, so I will not support laws that violate them.”). What utter rot.

    58. readery says:

      Unlike other words, “whether” never signals a question.

      what about this:

      Whether ’tis nobler in the mind to suffer
      The slings and arrows of outrageous fortune,
      Or to take arms against a sea of troubles,
      And by opposing end them?

    59. readery says:

      Also, perhaps it’s worth mentioning that the no-religious-symbolism-in-public-life viewpoint has not had more than 5 votes on the Supreme Court in recent decades. Since at least the 20-year-old Allegheny County case, Justice O’Conner had been the swing vote.

      4 justices held that religious symbolism was rarely permissable, and 4 that it was rarely prohibitted.

      Under O’Conner, a crazyquilt of cases set out a hodgepodge of special rules for various occassions, from legislative prayer to Christmas displays. The hodgepodge makes clear that neither absolute holds in this country — public religious displays are neither wholly consistent nor wholly inconsistent with the First Amendemnt. While each side regards its view as the rule and the contrary cases as the exceptions, I believe the reality is, if we’re willing to take the results as they are rather than look at them through ideologically colored glasses, there is simply no clear rule anymore. Justice Breyer, who said judges should use judgment on a case-by-case basis, described the regime we now have.

      Such a regime is essentially a means of transferring wealth from the public to lawyers with no clear public benefit in return. When everything is disputable and litigable with no clear way to predict the outcome, lawyers reign at public expense.

      With the replacement of Justice O’Conner by Justice Alito, it’s quite likely that the whole regime will be replaced. A simplified Alito regime may well allow public religious symbolism under a broader set of circumstances.

    60. ll says:

      Herr Professor Volokh

      I liked the title, but I have a question.

      Is it intended as a possessive or a contraction?

    61. readery says:

      If I truly believed a cross was such a potent implement that the mere sight of even a small one would fuddle people’s thinking into making false judgments, the first thing I’d want to do would be to get rid of the ones we now seem to have at virtually every traffic interection.

      If the presence of really big crosses at traffic intersections (just look down at the roads) doesn’t muddle people’s mental abilities enough to cause traffic accidents, why should small ones worn as personal jewelry have such a big effect?

      Why aren’t traffic intersection crosses prohibited by the First Amendment? Aren’t they also religious symbols? What about the crosses placed in the steel skeletons of buildings?

    62. theobromophile says:

      First thing: men might not realise this, but women often get their jewelry from their mothers and grandmothers as gifts. To a lapsed Christian, a cross pendant can be a powerful and dear reminder of the beloved family member who gave it to her – much more so than of one’s own religion.

      Second:

      I wonder if we should just make a list of civil rights that Amercian citizens who happen to be employees of the government should have to give up in order to maintain their employment.

      As the government expands, this question will become more, not less, important.

    63. Ryan Waxx says:

      The question is whether the prosecutor in this case should be treated as an individual or the government. There are two possible reasons the person wore the cross: 1) personal faith or 2) to influence the jury. IMO, the danger of 2 outweighs 1.

      Psst. We’re talking about small pieces of jewelry, not portable mind control rays.

    64. Lymis says:

      To a lapsed Christian, a cross pendant can be a powerful and dear reminder of the beloved family member who gave it to her – much more so than of one’s own religion.

      That’s lovely, but immaterial. Someone whose beloved grandfather gave them a Nazi emblem or a set of Klan robes may have fond memories of the old codger, but it would be inappropriate to wear them on duty.

    65. zippypinhead says:

      I wonder if we should just make a list of civil rights that Amercian citizens who happen to be employees of the government should have to give up in order to maintain their employment.

      The list already exists for career Federal employees. Feds give up numerous Constitutional rights as a condition of employment, including the right to run for and hold political office in partisan elections, as well as various forms of political speech (i.e., the Hatch Act). They give up various free speech rights, including their ability to make certain types of speeches or write certain materials for publication without preclearance, and to petition for grievances deemed inconsistent with their employer’s mission. They give up their ability to maintain outside employement such as a second job, and their right to evengelize their faith to co-workers. Their general, incohate right to privacy is limited in various ways, both in the workplace and everywhere else (especially if they need a security clearance or have another type of sensitive position). Their right to keep and bear arms in and around the workplace is denied even if the right is generally available under applicable state law. The exercise of their Fifth Amendment privilege against self-incrimination is limited by threat of punitive employment consequences if they refuse to cooperate with an IG investigation. I’m sure there are others, but that’s just what immediately comes to mind for civilian employees (the military has even more limitations, including the DADT restrictions on the sort of consensual sexual relations permitted by the Lawrence case).

      Sounds almost like those poor career Feds deserve a pay raise for giving up so much? At least Feds don’t have to agree to quarter soldiers in their homes during peacetime, as far as I know. At least not yet…

      Frankly, when you look at the issue this way, banning the wearing of small, unobtrusive religious symbols in open court doesn’t actually sound all that bad (wait, did I just talk myself into changing my position on this issue?). Yuck…

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