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Religious Endorsement Case Heading to the Supreme Court?

I just read the Ninth Circuit's decision from yesterday in Buono v. Kempthorne, and it strikes me as having a good chance of going up to the Supreme Court. Buono is the latest decision in the Mojave Sunrise Rock cross case:

A Latin cross sits atop a prominent rock outcropping known as "Sunrise Rock" in the Mojave National Preserve ("Preserve"). Our court previously held that the presence of the cross in the Preserve -- which consists of more than 90 percent federally-owned land, including the land where the cross is situated -- violates the Establishment Clause of the United States Constitution. We affirmed the district court's judgment permanently enjoining the government "from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve."

During the pendency of the first appeal, Congress enacted a statute directing that the land on which the cross is situated be transferred to a private organization in exchange for a parcel of privately-owned land located elsewhere in the Preserve. That land exchange is already in progress and would leave a little donut hole of land with a cross in the midst of a vast federal preserve. The issue we address today is whether the land exchange violates the district court's permanent injunction. We conclude that it does, and affirm the district court's order permanently enjoining the government from effectuating the land exchange and ordering the government to comply with the original injunction.

The government, you may recall, argues that the cross is a constitutionally permissible war memorial, rather than an attempt to endorse Christianity. The Ninth Circuit has rejected this view, and has consistently -- including in this latest decision -- concluded that the government action has endorsed Christianity, and thus violated the Establishment Clause.

Here's my thinking on the chances of Supreme Court review:

(1) The Ninth Circuit expressly acknowledges that it disagrees with the Seventh Circuit on when the government's sale of a religious monument eliminates any Establishment Clause problems. There's a split here not only with Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000), which generally adopted a presumption that "a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion" yet still found an Establishment Clause violation, but also with Mercier v. Fraternal Order of Eagles, 395 F.3d 693 (7th Cir. 2005), which applied the presumption and found no Establishment Clause violation. Buono could be factually distinguished from the other cases, especially since Establishment Clause jurisprudence has gotten so fact-dependent. But the reasoning of the Ninth Circuit's and Seventh Circuit's approach is sufficiently inconsistent that I think a Court would see a serious circuit split here, and the presence of such a split is generally a factor in favor of Supreme Court review.

(2) The Ninth Circuit expressly holds unconstitutional an Act of Congress, not just an executive branch action. Such a split among federal branches -- the legislature and the executive going way and a circuit court going the other -- is also a factor in favor of Supreme Court review.

(3) I anticipate that the Solicitor General's office will expressly ask for certiorari, both given the current Administration's view on such matters and given the likelihood that defending the cross will prove to be popular with most voters. And the SG's request for review is a factor in favor of Supreme Court as well.

(4) Finally, my sense is that the replacement of Justice O'Connor with Justice Alito may provide five votes for rejecting the endorsement test altogether. And while this case can be decided even without rejecting the endorsement test, I suspect that several Justices will be willing to use the case as a vehicle for rejecting that test. If there are four Justices who want to move the law in a particular direction, and think that there will be five votes for such a result, then it seems fairly likely that those four will vote to hear the case. (Recall that it takes only four votes for the Supreme Court to agree to hear a case.)

In any case, that's my tentative thinking on the subject. What do others think?

JohnW (mail):
How is this different than crosses in national cemetaries? Arlington, Punchbowl, maybe somr Civil War cemetaries, crosses to the horizon, nice neat rows.

I don't understand the issue, I guess.
9.7.2007 7:03pm
Oren (mail):
More from the 9th on the 1A (yes, I know, totally offtopic) here
9.7.2007 7:08pm
Steve:
Here is a picture of the cross in question.

Here is another picture, accompanying a story by CNS on the controversy (let's just say they're pro-cross).

I am anti-school prayer, pro-bright line separation of church and state, in other words your basic secular liberal, and yet it stuns me that people are wasting their time fighting about this. The cross was there for 60 years before the land became a federal preserve, for pete's sake. Some WWI veteran put it up as a war memorial. Let it be.
9.7.2007 7:08pm
Michelle Dulak Thomson (mail):
This sounds a little like the case of the Mount Davidson cross in San Francisco. IIRC the ACLU sued SF over the presence of the thing on city property, and SF, on losing in court, auctioned off a tiny parcel of land containing the cross. I don't know whether the sale was challenged in court, though.
9.7.2007 7:20pm
Fco (www):

How is this different than crosses in national cemetaries? Arlington, Punchbowl, maybe somr Civil War cemetaries, crosses to the horizon, nice neat rows.


While I don't agree at all with the court's decision (and what I see as a determined crusade to remove the cross), it's not the same as the crosses at Arlington. At Arlington there are personal symbols of faith to those who are interred there. Such as a star of David for Jews. It is interpreted that the cross on a grave is an expression of the religion of the particular person buried there, not as a general symbol put there by the govt.
9.7.2007 7:22pm
PatHMV (mail) (www):
What is the government to have done with the cross? If the government owned the Giant Buddhas, would the 9th Circuit have required that they be destroyed, just as the Taliban did? Or must it merely be locked away in a government warehouse (along with the Ark of the Covenant)?
9.7.2007 7:25pm
RMCACE (mail):
Maybe I am forgetting some caselaw here, but doesn't Congress have great authority over the sale and disposition of federal lands? I think it is actually in Article IV (sorry don't have time to do the research right now).
9.7.2007 7:33pm
PatHMV (mail) (www):
Also, was the court's injunction recorded in the local property records, such that it would be binding on third parties like the private entity which engaged in the land swap? Would the outcome be different had the government completed the property exchange prior to the court's ruling?

I foresee a swift reversal.
9.7.2007 7:39pm
CEB:

What is the government to have done with the cross?

Easy, they could burn it; the ACLU and the 9th Circuit would approve--problem solved.
9.7.2007 7:42pm
PatHMV (mail) (www):
As to your point (4), however, I disagree. Roberts and Alito have shown themselves to be serious devotees of basing their opinions on the most narrow basis available. I don't see them reaching out to overturn the decision on a broader basis than is absolutely necessary. And if they do, I'm going to be quite perturbed that they didn't do that in Wisconsin Right to Life.
9.7.2007 7:43pm
Tony Tutins (mail):
Pat, obscure religious symbols are A-OK. That's why San Jose was allowed to commission a sculpture of the ancient feathered serpent god Quetzalcoatl, and put it in a downtown park.
9.7.2007 7:56pm
PatHMV (mail) (www):
Thanks, Tony... I'm always forgetting that rule. But it's not just obscure religions, it's any non-Jewish, non-Christian religion. Remember, it's ok to require school children to pretend to be Muslim for a day...
9.7.2007 8:00pm
calmom:
There are Kokopeli hierogylphs on rocks in federal lands in Utah and Arizona. Perhaps those should be sandblasted off.
9.7.2007 8:12pm
Tony Tutins (mail):
Ssshhh: Don't tell anyone, but there are pictures of the Blessed Virgin and Baby Jesus in the National Gallery in Washington DC. Those damned Papists are allowed to propagandize at government expense.
9.7.2007 8:24pm
Dilan Esper (mail) (www):
You can never predict a cert grant with absolute certainty (there are something like 30 denials for every grant), but Professor Volokh has convinced me that this one is as close to a lock as they come.
9.7.2007 8:30pm
Justin (mail):
I have no problem with a full reversal, and I think cert is absolutely likely (act of congress declared unconstitutional is already a strong predicter).

That being said, my two thoughts:

I hope they don't reverse just on the sale issue. The idea that there is binding law that one can avoid the establishment clause by selling it seems absurd. If its constitutional, it should be regardless. Same if unconstitutional.

I think this is a tough case on de minimis grounds - the problem here is the district court's factfindings, which declares that its historic value is little (pointing out that the cross was there for 60 years is false - the cross that was there 60 years ago was long since destroyed). While a 9-0 decision on de minimis grounds would be nice, it would require a rule about factfinding that would be almost shocking.

Because of the small stakes, I think this would make an unfortunate case to be a vehicle for a broader establishment clause ground. But c'est la vie.

There is a substantial possibility of some weird 4-1-4 decision that keeps the cross there but has no useful precedential value.
9.7.2007 9:06pm
Justin (mail):
I think a lot of people here need to read the Ninth Circuit's opinion. It's pretty clear that the decision would not ban, for instance, historical paintings of the baby jesus at the national gallery, and its pretty clear the opinion (correctly) protects historic statutes that were clearly placed at behalf of the all-powerful Aztec-religion vote. The same protects heiroglyphics. And, of course, the references to Islam in this thread is just typical irrelevant bigotry.
9.7.2007 9:10pm
FC:
I'm sure we are all familiar with Homer Simpson's theory of the donut-shaped universe.* But the donut hole doctrine of property is new to me.

*It's in arXiv, people!
9.7.2007 9:28pm
TruePath (mail) (www):
JohnW and others who are asking how this is different than things like symbols on gravestones in federal cemeteries or paintings in national galleries:

Those policies (because they are content neutral) don't give aa reasonable person the impression that the federal government favors a particular religious belief. No one who went into a national gallery or saw the personal religious symbols on the cemetery would say, 'ohh huh I guess the federal government favors Christianity over other religions."

This is obviously not the case with this cross. Just look at the fucking picture and tell me it doesn't make you think that cross was erected/maintained out of a respect for christian teachings. The fact that the hill looks a bit like some popular depictions of galgatha (sp?) just makes it more dramatic.

Now the war memorial line seems reasonable at first blush but can anyone claim with a straight face that a satanic of pagan symbol left by a soldier as a WWI memorial would still be there?. Regardless I'm not sure if it matters why it was set up as much as what message it sends. I could certainly be persuaded that with appropriate context this cross might become constitutional. Say if congress thought this was an important WWI memorial and integrated it with other symbols/memorials of WWI soldiers or otherwise created an environment where the cross would be seen as a war memorial not a Christian symbol. However, the actions of congress at the moment suggest the aim is just the opposite.

Also the idea that selling land serves as a free pass on the separation of church and state is just absurd. I mean suppose congress paid for the construction of an overtly mormon temple on the national mall. Are you really claiming that it would resolve any constitutional issues if, on hearing it was coming to trial, congress went and sold the temple to the LDS church for $1 but refused to allow any other religious denomination the chance to build on the national mall? Obviously this would be a constitutional violation so there should be a remedy. The situation here is less extreme but it seems the same principles apply. Congress deliberately engaged in a land transfer for the express purpose of maintaining a Christian symbol in a particularly visible location.

Now do I think this is a big deal? No, I certainly wouldn't bother to sue over it. However, you can't abandon the rule of law just because it's 'not a big deal'. That's like saying, "ohh c'mon we all like fred and the crime he committed isn't that big a deal so let's just forget about it."

I'm quite concerned about what sort of rule could replace the endorsement test since I can't think of any other principled test that would serve a similar purpose and a non-principled fact based approach would be almost useless. After all the very reason to have a constitutional rule is to guarantee it is enforced even when a majority of the public thinks it's bad
9.7.2007 10:28pm
TruePath (mail) (www):
To be more clear that's the reason to have a constitutional rule like separation of church and state or freedom of speech that seek to limit what can be done even at the behest of the people. Obviously there are other reasons to have constitutional principles like separation of power or rules about what it takes to pass a bill.
9.7.2007 10:32pm
Eugene Volokh (www):
TruePath: I have no problem with people's quoting phrases that contain vulgarities, or using them jokingly. But I'd prefer that people avoid such vulgarities (e.g., "fucking") in the substance of their comments. Among other things, staying away from such things tends to foster more substantive argument.
9.7.2007 10:36pm
Tony Tutins (mail):
OK, I have read the decision. My view is that the 9th Circuit has thrown down the gauntlet at the Supremes by not even mentioning the Lemon test. This may be the case that determines if Lemon is still good law.
1. Legitimate secular purpose: Honor veterans with the symbol that they themselves have chosen. This makes the situation akin to the crosses on veterans' graves. Too, the common image of a veterans' cemetery is row upon row of crosses. ("In Flanders Fields...") Realize, too, that a cross is the simplest symbol possible, other than a pure obelisk.
2. Neither advance or inhibit religion: the reaction of passers by should be to reflect on what it means to sacrifice for your country. There should be no televangelist lurking underneath, Bible literature, etc.
3. No excessive entanglement with religion. The VFW is not a religious body. The people the govt. sold the land to are not a religious body. There should be no ongoing relationship between the govt and religion.
9.7.2007 11:19pm
Jon Rowe (mail) (www):
When the Constitution grants rights to "religion," it means just what it says: "religion" -- Christian or not -- or "religious" nor not; just as with race, whatever constitutional rights attach to "religion" equally attach to everyone's religion or lack thereof.

As such, according to the original meaning of the Constitution's text, government can a) endorse any religious principle (i.e., government can say, "under God," "under no God," "under Jesus," "under Allah,") b) endorse no religious principle (i.e, cannot endorse any of the aforementioned concepts), or c) if constitutionally permitted to endorse some religious point of view but not others, since the political theology of America's Founding documents is not Christianity, Deism, or Atheism, but rather a generic theism -- i.e., the laws of nature and nature's God -- "ceremonial theism," if you will, a generic Providence inclusive of as many world "religions" (including many non-Christian ones) as possible, government may endorse the United States as being "under God," but nothing more.
9.8.2007 12:02am
Houston Lawyer:
Sometimes I think we should do away with the first amendment. We've lived my lifetime without the second, so what could be the harm.
9.8.2007 12:05am
Tony Tutins (mail):
To Jon and Houston: Maybe Randy Barnett could write "Restoring the Lost First Amendment"
9.8.2007 12:11am
Dave Hardy (mail) (www):
While a 9-0 decision on de minimis grounds would be nice, it would require a rule about factfinding that would be almost shocking.

Yes, a recognition of de minimis in this context would be very, very nice.
9.8.2007 1:16am
Brian K (mail):
Tony,

I don't think your 1 and 2 hold true. A random passerby would not realize this is a war memorial. it is just a cross on a mountaintop in a state park. there is nothing around it to suggest that it is a war memorial. On its face this looks like any other cross erected anywhere.
9.8.2007 1:30am
Jon Rowe (mail) (www):
On the lost First Amendment, I think the reasoning in Scalia's dissent in McCreary was basically right insofar as he recognized the first 4 Presidents commonly invoked a non-denominational God in their official endorsements, but he was wrong to associate such God with the one who revealed the Ten Commandments because a) Washington and Madison never specified their God revealed the Ten Commandments and b) Adams and Jefferson actively questioned whether the Ten Commands were legitimately revealed by God.

The political theological behind America's Founding is not "Christianity," "Judeo-Christianity," or "Isalmo-Judeo-Christianity," but generic theism.
9.8.2007 1:45am
PatHMV (mail) (www):
I don't see how the sale of a piece of real property to a private, non-religious entity can constitute the establishment of a religion which is prohibited by the First Amendment.

Now if the plaintiffs could establish that the transaction was a sham, and that in reality the government still was the de facto owner of the property, I could see that. But if it's a real transaction, and the private entity truly is the owner of the property, then I don't see how the court can require the removal of the cross from the private property.
9.8.2007 1:52am
Tony Tutins (mail):
Brian,
This is not an ordinary state park. Nor is the amount of privately held land in this park negligible. Imagine a privately-held Omaha, Nebraska, surrounded by the State of Delaware. No one who sees this cross needs to associate it with a federal government property.

Actually, in my opinion, anybody who sees the cross will not think "Jesus", but rather "Jesus, I wonder how that cross got there."
9.8.2007 2:45am
David Schwartz (mail):
So could the government "sell" some wall space in a courthouse to someone who wanted to use that space to display the ten commandments?

One of the arguments made by the Plaintiffs in this case was that the sale was a sham transaction. That was the argument the ruling was based on.
9.8.2007 3:35am
Oren (mail):

One of the arguments made by the Plaintiffs in this case was that the sale was a sham transaction. That was the argument the ruling was based on.


The lack of good faith on the part of the government here is what really disturbs me. The land sale has no bona-fide purpose and no purpose at all except to avoid the judgment of the court.

As far as the substantive issue, I think it's fairly clear that if we substitute for the cross a symbol for a non-judeo Christian religion (let alone one of the "dirty" religions) the support evaporates. One of my friends got in quite a tiff with his town over a statue of Eros he had in his backyard (but sort of visible from the street) - - Eros is a god just as much as Jesus but he got absolutely no sympathy for the display on his private property.

I see three ways to rationalize the manifestly disparate treatment afforded to Christians and (broadly speaking) pagans in this country:

(1) Majoritarianism - the country is largely Christian and the people have the right to affirm and celebrate their religion.

(2) "Historicalism" - the monument is historic and therefore ought to stay as a sign of respect for the past.

(3) Superiority - Christianity is "better" than paganism in some important normative way and this justifies the disparate treatment.

Any other rationalizations handy?
9.8.2007 4:40am
FC:
Jon Rowe:

Humbug, I say. An 'original understanding' analysis shows that when the overwhelming majority of citizens of the early Republic heard their presidents say "God" (or "Providence" or "Great Architect" or etc.), they would have thought of Jehovah.

When those presidents spoke and wrote, they would have expected that their audiences would often apply this interpretation. Therefore your argument is weak even on 'original intent' grounds.
9.8.2007 5:24am
Jon Rowe (mail) (www):
I don't doubt the majority of the populace did associate generic references to God with Jehovah; I'm simply pointing out that if you examine the way these Founders systematically spoke of God in their public supplications, there was something deeper going on there.

The key Founders had very heterodox beliefs; if they put their explicit religious cards on the table, it wouldn't fly with great deal of the populace. One of those heterodox tenets was more or less all world religions were valid, including orthodox Christianity, but also systems inconsistent with Christianity. It was a syncretism that attempted to be all things to all people.

They had no problem with the masses thinking Providence was Jehovah. They also had no problem with Deists, Unitarians, Native Americans or Hindus thinking Providence was their God too.
9.8.2007 10:02am
FantasiaWHT:
FC, the problem with that idea is that, if it's true, then there is never a difference between original intent and original understanding. You can't assume that a drafter/speaker intended a word/phrase to mean what it would mean in the common parlance of the time.
9.8.2007 11:01am
Thorley Winston (mail) (www):
As far as the substantive issue, I think it's fairly clear that if we substitute for the cross a symbol for a non-judeo Christian religion (let alone one of the "dirty" religions) the support evaporates.


So would the opposition.
9.8.2007 11:26am
Michelle Dulak Thomson (mail):
Oren,

The lack of good faith on the part of the government here is what really disturbs me. The land sale has no bona-fide purpose and no purpose at all except to avoid the judgment of the court.

Yes, and the opinion makes much of the government's obvious intention to foil the order to have the cross removed. But this is just where I have trouble with the whole "state endorsement" line of argument. The court sees the gov't trying to preserve this cross and draws the conclusion that the gov't wants the cross preserved because it is a Christian cross. But surely the main reason for the gov't's various actions in this case is irritation at the sort of people who see a cross and insist that it be destroyed? There are plenty of people who have no particular interest in putting up religious-themed monuments, but would go some distance to avoid seeing them torn down by the sort of people who find tearing down crosses satisfying.

It's the Mount Davidson cross situation all over again. There were a number of people for whom it wasn't sufficient that the city of San Francisco sold the land it stands on; they positively wanted to see the thing dynamited. Gut-level disgust at that attitude ought to be distinguished from a desire to see government "endorse" Christianity.
9.8.2007 12:07pm
TaxLawyer:
I suspect EV is right, both about the likelihood of SCOTUS review, and about the outcome given the new makeup of the Court. It's too bad, I think. It's hard to see a cross erected on government land as anything other than a declaration by the government that it endorses Christianity. Moreover, the government's extraordinary attempts to maintain the Cross in the face of opposition from religious (or atheist) dissenters is (1) itself a message, even more emphatically --"this is a Christian government, and tough luck if you don't like it"; and (2) evidence that the original purpose in placing the cross was to send that message.

Scholars (and non-scholarly citizens) could, I suppose, have a debate about whether the government sending that message transgresses the Establishment Clause. For reasons that are explored iat great length in court opinions and scholarly articles galore, I side with those who say it does.
9.8.2007 12:33pm
Oren (mail):
MDK says
blockquote>
The court sees the gov't trying to preserve this cross and draws the conclusion that the gov't wants the cross preserved because it is a Christian cross. But surely the main reason for the gov't's various actions in this case is irritation at the sort of people who see a cross and insist that it be destroyed?


Either way, the sale's primary purpose is to frustrate the decision of the court. The final result (and the endorsement of Christianity) are unchanged by the sham transaction. If you believe that it ought to generally be legal to conduct sham transactions for legal benefit (or to frustrate rulings you believe are incorrect) then that's the end of the discussion.

Furthermore, I have no desire to see any piece of history "destroyed" (let alone dynamited) but rather just placed in a context in which it is clear that Christianity is just one religion among many and does not occupy some preferred status.
9.8.2007 1:01pm
Tony Tutins (mail):
As far as the substantive issue, I think it's fairly clear that if we substitute for the cross a symbol for a non-judeo Christian religion (let alone one of the "dirty" religions) the support evaporates.

So would the opposition.


Good. Long before the time of Christ, the cross was a primitive depiction of the male genitalia, the crossbar symbolizing the testicles. Simply refer to it as the phallic symbol it originally was.
9.8.2007 1:02pm
Tony Tutins (mail):
How was the exchange of the properties a sham transaction? Does the government still benefically own the land the cross is on?

To me, Bud Selig's sale of the Milwaukee Brewers to his daughter was a sham transaction.
9.8.2007 1:07pm
Michelle Dulak Thomson (mail):
TaxLawyer,

[T]he government's extraordinary attempts to maintain the Cross in the face of opposition from religious (or atheist) dissenters is (1) itself a message, even more emphatically --"this is a Christian government, and tough luck if you don't like it"; and (2) evidence that the original purpose in placing the cross was to send that message.

I just don't understand it that way. The message I take from the government's actions is strong distaste for the destruction of a memorial on such petty grounds. And (2) makes no sense — how can any government actions today themselves provide "evidence" of what message was intended when a cross was first erected on the site more than 70 years ago? (Yes, the current cross is less than a decade old, but the original memorial was also a cross, and evidently the government wanted a replica of this original cross erected on the site.)

Look, a white cross is not just a Christian symbol; it is also a well-understood, historically-obvious reference to military dead. Take, say, the ongoing Iraq memorial in Lafayette, CA. There are a few Stars of David and Muslim crescents on that hillside from the memorial's early days, but for some time they have just been adding a cross for each soldier killed in Iraq. The crosses aren't associated by name with particular soldiers, and no one takes them as an indication that the American dead in Iraq are all Christians.
9.8.2007 1:13pm
Michelle Dulak Thomson (mail):
Just to clarify: The Lafayette Iraq memorial is not on public property, so obviously Establishment Clause issues don't arise. My point was rather that no one takes the "message" of the memorial to be the promotion of Christianity, despite the fact that every new addition to it for some time has been another copy of the central Christian symbol. The association between white crosses and war dead is immediate and strong.
9.8.2007 1:22pm
PatHMV (mail) (www):
What Tony said. A "sham" transaction is one in which the property is not really changing hands. The motive is immaterial in determining whether a transaction is a sham or not. Obviously, Congress passed the law to defeat the court's intent. But that doesn't make the transaction, or intended transaction, a "sham." It's only a sham if the government is in fact still in control of the property, such as if there were some restrictive covenant which required the property owner to keep the cross, or prohibited them from selling the property to anybody but the government, etc.

Suppose the land swap had been made before the court's initial decision. Would the plaintiffs have had a leg to stand on? The court cannot stop the transaction unless the transaction itself would constitute the establishment of religion. The court can't bootstrap power to control Congress' disposition of federal lands simply by virtue of its earlier injunction.
9.8.2007 2:09pm
Michelle Dulak Thomson (mail):
PatHMV,

It's only a sham if the government is in fact still in control of the property, such as if there were some restrictive covenant which required the property owner to keep the cross, or prohibited them from selling the property to anybody but the government, etc.

The opinion takes this line. The land transfer required the new owner to "maintain the property as a war memorial"; and because a previous act of Congress had declared the existing cross a war memorial itself, the opinion argues that this requirement is exactly the sort of covenant you describe. (It doesn't seem so to me; so far as I can see the VFW could've removed the cross entirely, or at least erected a building and put the cross inside in a display case, so long as the site was still "maintained as a war memorial.")
9.8.2007 2:31pm
PatHMV (mail) (www):
Thanks for the clarification, Michelle.
9.8.2007 3:13pm
Steve2:

Look, a white cross is not just a Christian symbol; it is also a well-understood, historically-obvious reference to military dead. Take, say, the ongoing Iraq memorial in Lafayette, CA. There are a few Stars of David and Muslim crescents on that hillside from the memorial's early days, but for some time they have just been adding a cross for each soldier killed in Iraq. The crosses aren't associated by name with particular soldiers, and no one takes them as an indication that the American dead in Iraq are all Christians.


Michelle, I think that's just plain wrong. I think a white cross is just a Christian symbol, and I know I'm not the only one. And I do take the crosses you presented as an indication that in the eyes of Jeff Heaton and his fellow organizers of the Lafayette memorial, the dead who weren't Christian either don't count or should have been Christian. The "association" between crosses and war memorials exists because Christian symbology - the cross - keeps getting stuck where it has no business - a war memorial.
9.8.2007 3:39pm
Steve2:
I should clarify, I meant a war memorial intended to memorialize non-Christian dead as well as Christian. If it's a memorial for Christian war dead only, a cross is appropriate, but if it's for mixed-religious dead, having only a cross or an out-of-proportion dominance of crosses is indeed an explicit promotion of Christianity and insult to the non-Christians.
9.8.2007 3:46pm
Tony Tutins (mail):
Steve2 makes the situation clear to me. He believes the court can dictate to the VFW acceptability criteria for their war memorial. This is the same as the school district picking a non-sectarian prayer to be said at public ceremonies. If the VFW wants to use a cross to commemorate their dead, so be it. I don't see why their decision should be subject to government interference.

As far as the covenant goes, it sounds like the government wanted the land to be used for a war memorial, not that they were dictating the form of the memorial. If the VFW wanted to replace the cross with a statue of Sgt. York, that shouldn't violate the covenant.
9.8.2007 3:51pm
David Schwartz (mail):
The government wanted to maintain the cross and therefore orchestrated a transfer of the land to an organization that would maintain the cross. The issue of whether the organization was legally required to maintain the cross shouldn't matter.

If I say I want to display the ten commandments in a courthouse, should the government be able to sell wall space to me?

If the government wants to create a forum, it should permit all comers equal access to that forum. If it wants to sell off bits of land to various different organization so they can all display symbols they find appropriate, that would be a completely different story. But that's definitely not what the government was trying to do here.
9.8.2007 5:52pm
Michelle Dulak Thomson (mail):
David Schwartz,

The government wanted to maintain the cross and therefore orchestrated a transfer of the land to an organization that would maintain the cross. The issue of whether the organization was legally required to maintain the cross shouldn't matter.

Shouldn't it? I wonder where that leaves the Mount Davidson cross. When San Francisco sold off the land it stands on a decade ago, IIRC the auction was not conditional on the cross being preserved, but nonetheless it's still there. (The Armenian-American society that bought it rededicated the thing to the victims of the Armenian genocide.) Was auctioning off the land enough, or would SF have done its true Constitutional duty only had the buyers destroyed the monument?

I realize that the case is somewhat different in that SF held an open auction rather than negotiating a land swap with an interested party, but so far as intent goes I doubt there's much difference: Clearly SF didn't want the cross destroyed, and sold the land under it in an effort to avoid demolition.
9.8.2007 6:11pm
Tony Tutins (mail):
If it wants to sell off bits of land to various different organization so they can all display symbols they find appropriate, that would be a completely different story. But that's definitely not what the government was trying to do here.


Were other veterans' organizations turned down when they wanted to display symbols that were significant to them? I seriously doubt it. I think you are dismissing the debt that this country owes to its veterans.
9.8.2007 10:19pm
Juliana Klovquist (mail):
(4) Finally, my sense is that the replacement of Justice O'Connor with Justice Alito may provide five votes for rejecting the endorsement test altogether. And while this case can be decided even without rejecting the endorsement test, I suspect that several Justices will be willing to use the case as a vehicle for rejecting that test. If there are four Justices who want to move the law in a particular direction, and think that there will be five votes for such a result, then it seems fairly likely that those four will vote to hear the case. (Recall that it takes only four votes for the Supreme Court to agree to hear a case.)

What would the endorsement test be replaced with?
9.8.2007 10:53pm
Juliana Klovquist (mail):
Maybe I'm slow, but we're going to have more government-sponsored religious speech under the new test?
9.8.2007 10:56pm
jpe (mail):
Pat, obscure religious symbols are A-OK.


The Lemon test just tracks common sense (which is why it's so fact-sensitive); you couldn't possibly think (assuming you have common sense) that a statue to an ancient god that virtually no one worships anymore is an endorsement.
9.9.2007 12:17am
Brian Macker (mail) (www):
Michelle,

"There were a number of people for whom it wasn't sufficient that the city of San Francisco sold the land it stands on; they positively wanted to see the thing dynamited. Gut-level disgust at that attitude ought to be distinguished from a desire to see government "endorse" Christianity."
Maybe you ought to get in touch with just why those people have such an attitude and perhaps your disgust would evaporate. For some people having a cross on a hillo overlooking an entire city is pretty much the same as placing a swastika there. Christianity has done more than it's fair share of persecution and genocide.
9.9.2007 12:32am
Tony Tutins (mail):
Pat, obscure religious symbols are A-OK.
The Lemon test just tracks common sense (which is why it's so fact-sensitive); you couldn't possibly think (assuming you have common sense) that a statue to an ancient god that virtually no one worships anymore is an endorsement.

Just what I said. The acceptability of a religious symbol in a public place is inversely proportional to its popularity. Christianity: very popular, never see it. The limit of populararity/public acceptance is, I think, Buddha.
9.9.2007 12:36am
Tony Tutins (mail):
For some people having a cross on a hillo overlooking an entire city is pretty much the same as placing a swastika there. Christianity has done more than it's fair share of persecution and genocide.

After seeing what the nursing of ancient grievances did in the former Yugoslavia, I kind of hate to see it here.
9.9.2007 12:42am
Brian Macker (mail) (www):
Tony,

"I think you are dismissing the debt that this country owes to its Christian veterans."

There I fixed it for you.
9.9.2007 12:42am
Tony Tutins (mail):
Maybe I'm slow, but we're going to have more government-sponsored religious speech under the new test?

Hopefully there will be more common sense. The presence of a New York Times newsbox in City Hall does not mean Mayor Bloomberg endorses their editorial policy. The presence of a cross in a park the size of Delaware does not mean the Federal govt. endorses Christianity.
9.9.2007 12:47am
Tony Tutins (mail):
Brian, for pantheists like me, the entire park is a symbol of our religion.
9.9.2007 12:52am
Brian Macker (mail) (www):
Tony,

Actually they are not so ancient. Christians have been and continue to persecute non-Christians. They started to reform their bad ways but aren't quite finished. Kinda hard to reform when your religion teaches that others are evil merely on the basis of not believing in your diety.

I personally was persecuted in the army by being made to clean rifles on Sunday while the good Christian boys got to go to church and socialize with girls afterwards. I got the message and quit. I was also persecuted by being forced to recite religious prayer, songs, and oaths in school.

Seems to me that it's the Christians obsesssed with ancient grudges, and ancient superstitions. I can't count how many times some ignorant Christian would assume I was a fellow "white Christian" and spew racist crap about how the Jews killed Christ. These guys weren't drunk like Mel Gibson either.

I also was dragged to Church more than a few times, and also have been to funerals where the subject is all about how evil non-believers are. It's really like being a black man in white face attending a KKK meeting.
9.9.2007 12:55am
ReaderY:

Thanks, Tony... I'm always forgetting that rule. But it's not just obscure religions, it's any non-Jewish, non-Christian religion. Remember, it's ok to require school children to pretend to be Muslim for a day...


In particular, any religion the ACLU approves of. It's only religions it dissapproves of that the ACLU uses the Establishment clause to fight.

I suspect the Supreme Court will agree with the 7th Circuit here, and I strongly doubt they will have 5 votes to make a change to the legal standard involved under the facts of this case given that the 7th Circuit's application of the existing standard would fully dispose of the case. The most that might happen is another "assuming without deciding".
9.9.2007 3:04am
ReaderY:

For some people having a cross on a hillo overlooking an entire city is pretty much the same as placing a swastika there. Christianity has done more than it's fair share of persecution and genocide


No doubt black people have done their share of injustices, but do people who feel discomfort because of those injustices have the right to keep them from sitting in the front of the bus in order to feel more comfortable?

It wasn't just Yugolslavia where people thought their behavior justified.
9.9.2007 3:11am
michael i:
Impeach the judges.
9.9.2007 3:59am
jpe (mail):
The presence of a New York Times newsbox in City Hall does not mean Mayor Bloomberg endorses their editorial policy.


For someone espousing common sense, I'm not seeing a whole lot of it here. The question isn't whether Bloomberg allowes a newsbox to the Times; it's whether he gives other papers equal space, or whether he allows only the Times on a given corner. (or better, if he built a giant statue to veterans under the banner: "NY Times salutes our troops!")

If the latter, it's pretty clear endorsement; if the former, no problem. And, say hello to our current EC jurisprudence, which more or less mirrors that.
9.9.2007 11:45am
Tony Tutins (mail):
The question isn't whether Bloomberg allowes a newsbox to the Times; it's whether he gives other papers equal space, or whether he allows only the Times on a given corner.

Have other papers asked for space? Moreover, two newsboxes cannot occupy the exact same space -- one will have to be to the left, the other to the right. If there's not enough room on Sunrise Rock for two veterans' memorials, I seriously doubt that "Sunrise Rock" is the only peak in the park.

As I see it, the only persons' rights at issue here are the militant atheists who never want to see religious symbols on public property at all.

And Brian: I'm sorry that A-holes who claimed to be Christian were a-holic to you. In particular, believing that the Jews killed Christ is as counter the teachings of the church as "Rev." Phelps' belief that "God hates fags." As Abraham Foxman has written, The centuries-old charge of deicide against Jews, simply put, that "the Jews killed Christ," has been discredited by history and unequivocally rejected by the Roman Catholic Church in the 1965 Vatican proclamation, "Nostra Aetate."
9.9.2007 1:17pm
Brian Macker (mail) (www):
ReaderY,

"No doubt black people have done their share of injustices, but do people who feel discomfort because of those injustices have the right to keep them from sitting in the front of the bus in order to feel more comfortable?"

You see that's not how I see things. The way I see it the Christians are the White people and not only are they keeping me from the front of the bus they are using the seats for fornicating and not their proper purpose. In addition they are making me subsidize their bus fare.

Then when I want to them to stop fornicating on the bus and incidentally to use the bus for transportation and not a Christian orgy, they complain that I'm asking them to move to the back of the bus. Well, I guess sort of since if I have an equal opportunity to sit in the bus they would have to sit elsewhere which would mean more frequent visits to the back of the bus.

Also it would mean they'd have to restrict the fornication to their private lives without me paying in part for the locale for their trysts.

How is does this map back to the original issue. Well the park is for hiking and not religious symbology. Hiking is riding the bus, and advertizing your religion is the fornicating. Let them do it on their own dime.

No selling the land doesn't help. Sell them the cross and have them move it somewhere else. Any other ruling would be compatible with selling wall space on court buildings or in schools for the hanging of crosses. Obviously it's just a ploy to get around the ruling.

No this doesn't mean you can't hang a cross around your neck, or put a cross on your church building, or even nail one to the wall of your house. It is in no sense persecution as you try to make it out. Rather poorly I might add.

What the hell does Yugoslavia have to do with it anyhow? That's a case were two religions are doing exactly what they've historically done, attempt to rest control of the government and force their religion down the necks of others. The exact opposite of the guiding principle here. After all I'm not asking that a symbol to my religious beliefs be mounted on the top of that hill. I do have religious beliefs and I'm not forcing them on you via the government or even advertizing them that way.
9.9.2007 3:23pm
Brian Macker (mail) (www):
"And Brian: I'm sorry that A-holes who claimed to be Christian were a-holic to you."

Well I'm glad your sorry but seeing as how you are a Pantheist it doesn't count for much in remedying the past. Besides you can't apologies for others even if you were of the same faith. Besides it worked out for the best since the military is not for me.

BTW, they didn't just claim they were Christians. I know for the fact that they were. They even were weekly church goers. Some were Catholic, others Baptists, etc. This isn't just one incident. Are you trying to pull the no-true-Scotsman fallacy?

"In particular, believing that the Jews killed Christ is as counter the teachings of the church as "Rev." Phelps' belief that "God hates fags.""

Which church? There are lots of them. You know my "somebody's not being straight with me" hackles are rising on my back. Why do you assume there is only one church? Why would a "Pantheist" say something like that? Something that sounds like it's coming out of the mouth of a Catholic. Perhaps you were once a Catholic but saw the error of you ways, at least partially?

"As Abraham Foxman has written, The centuries-old charge of deicide against Jews, simply put, that "the Jews killed Christ," has been discredited by history and unequivocally rejected by the Roman Catholic Church in the 1965 Vatican proclamation, "Nostra Aetate.""
Wow, for someone who worships rocks and trees you sure know a lot of Catholic trivia. Did you know this; Mel Gibson's father belongs to a sect of Catholics that reject Vatican rulings? How about fact that many Christians are not Catholics and don't care a like what the Vatican does or does not rule.
9.9.2007 3:42pm
Brian Macker (mail) (www):
Tony,

"As I see it, the only persons' rights at issue here are the militant atheists who never want to see religious symbols on public property at all."

Although I'm not petitioning or anything I think overall it's a good thing the cross goes. If the cross is so important to someone I'm sure they'll be willing to ante-up the bucks to move it to a new location. Might be nice to get some extra cash to repay the government for the initial outlay they made in putting it up. Yes, they did use taxpayer money to erect the current version (as opposed to the original which was strangely enough torn down. At least according to Michelle).

What's annoying however is to refer to me as a militant atheist. It's not like I'm bombing in Belfast, or flying planes into buildings, running a Crusade or Jihad, or anything anywhere near as bad as what "Militant Christians" and "Militant Muslims" do. I wish that you would kindly refrain from referring to me as such. Please restrict such labels to people like the Communists.

Frankly even then it's better to refer to them as "Militant Communists" and not "Militant Atheists" since atheism really doesn't have any credo to get militant about. Generally when non-theists go militant it's not because of their lack of belief in a god or gods but an active belief in some crazy ideology, like Communism.

It's fanatical belief ideologies that lead to true militancy. Catholicism, Nazism, Communism, Islamism, are all ideologies but atheism isn't. Atheism is merely a lack of belief in someone elses ideology, and not an ideology of it's own.

Speaking of militant atheism is like speaking about bald as a hair color. Sure bald people have hair of a particular color but bald itself isn't a color. Likewise atheism is not an ideology. The communists didn't believe in leprechauns either but it hardly makes sense to call them militant aleprechaunists. Unless you want me referring to the Nazis as Militant Christians perhaps it's best not to refer to Communists as militant atheists either.

Actually, didn't Adolf dabble in Pantheism? Get my drift?

Unless a label identifies a true ideology and that ideology specifically has doctrines that are truely militant in the sense of violent then I don't see how one can honestly use an adjective like militant. Sure it has retorical value but of an intellectually dishonest variety.

To speak of someone being militantly Amish is not only an oxymoron but is an attempt at moral relativism. It lumps them in with people like Osama. Being a extremist pacifists is not the same ball of wax as being an extremist Muslim.

BTW, I find the behavior of the ACLU appalling. They certainly do seem to be behaving in a one sided manner. Christianity bad, Islam good. Actually, I see quite a difference. At least Christianity was founded with a pacifist as it's ideal unlike Islam which was founded by a sociopathic mass murderer, thief, megolomaniac, and pedophile with himself as the ideal. At least their is hope for moral sanity in the one case despite it's dark history. I have little such hope in the latter case.
9.9.2007 4:13pm
Tony Tutins (mail):
Brian, I can feel sorry that you suffered at the hands of self-professed Christians without having caused you to suffer -- and I do. I feel sorry for those who endured slavery in the US, as well as Armenians, Kurds, and the victims of Pol Pot, although I am neither slaveowner nor Turkish nor Cambodian.
And I mentioned the pope because he (1) carries the most clout in fragmented Christianity and (2) represents the branch of Christianity that (a) goes back the furthest and (b) arguably persecuted Jews the most (No one expects the Spanish Inquisition -- M. Python). Besides him, the most notable Christian leaders today are individual televangelists, who have relatively few adherents.
While I was out in nature today, enjoying sunshine, green grass, and the shade of trees, I asked Gaia for guidance about this case. And after her inspiration, I decided that the district court's injunction, ratified by the 9th Circuit, was an impermissible content-based restraint on speech, in that it prohibited the VFW from using a religious symbol as part of its war memorial, where presumably any non-religious symbol would have been fine. The war memorial expresses the VFW's gratitude for the sacrifice of our veterans, and the VFW's wish that their sacrifice may never be forgotten. And, as a content-based restraint on speech, the injunction would have had to meet a compelling government interest, and be the least restrictive alternative, neither of which has been demonstrated. On this site, Professor Volokh has a very fine explanation of the test for content-based restraints on speech. Moreover, as an exercise of religious belief coupled with freedom of expression, per Judge Scalia's majority opinion in Employment Division, any prohibition of the cross/war memorial would have to undergo strict scrutiny as well.
Now, a federal district court injunction is certainly subject to the first amendment, because the district court is part of the judicial branch of the federal government. And the VFW has suffered an injury, because it cannot get its message about our veterans out, because the court has required a box around the cross. And the court can surely redress this injury by withdrawing the injunction. But this raises the question of checks and balances -- who can tell the judiciary it has stepped over the line? Especially because, in, I think, City of Boerne, the USSC reserved the right to declare what our rights are, while denying that right to Congress. To work around this, we the people can change the decisions of the Supreme Court either by Constitutional amendment (a slow and unsure process) or by waiting for the justices to retire, then replacing them with those whose points of view are more to our liking. So the installation of Roberts and Alito were essential.
Now, should our public parks be free of religious symbols? Googling "parks" with "Simchat Torah," "Sukkot," and "huppah" shows that Jews, for one group, are in the habit of displaying their religious symbols in public parks. Personally I would hate to see the Establishment Clause used to banish these symbols from public parks.
9.9.2007 10:21pm
Brian Macker (mail) (www):
Tony,

Gaia, Yeah right.

Personally, I don't care if the cross stands or falls. I just find the idea that the moral fault lies with the atheists who do object laughable. I also find the means used to try to preserve the cross less than honorable.
9.9.2007 11:20pm
Tony Tutins (mail):
Brian, I believe all should be free to express their religious belief in the public square. I don't expect that anyone would reasonably embrace such a right for themselves while denying it to others. That leaves only the non-believers as possible protesters. Some non-believers will not care if others are expressing their religious beliefs, while some will. The latter group I called the militant atheists.

I find honorable the legislative and executive branches refused to go along with the judiciary's content-based restraint of speech: note that the district court enjoined the executive branch's permitting the cross to remain; not that the executive branch erected the cross or otherwise maintained it, simply that they did not suppress speech with religious content on public land by tearing down the cross.
9.9.2007 11:40pm
Tony Tutins (mail):
Well, I guess there are some believers who don't want anyone, even themselves, to express their religious beliefs in public; what would you call them?
9.9.2007 11:44pm
Anonymous Lunatic:
Either way, the sale's primary purpose is to frustrate the decision of the court

Okay, Congress transfers a war memorial to a private, well-established, nondenominational veteran's organization to eliminate any implication that the Federal Government endorses a religion.

This is improper because it removes the sole basis for an order to destroy the memorial, instead of actually destroying it?
9.10.2007 12:13pm