Salazar v. Buono, which the Court agreed to hear today, involves a relatively unusual fact pattern (quoting the federal government's statement of the Question Presented in its petition for review):
More than 70 years ago, the Veterans of Foreign Wars (VFW) erected a cross as a memorial to fallen service members in a remote area within what is now a federal preserve. After the district court held that the presence of the cross on federal land violated the Establishment Clause and the court permanently enjoined the government from permitting the display of the cross, Congress enacted legislation directing the Department of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The district court then permanently enjoined the government from implementing that Act of Congress, and the court of appeals affirmed. The questions presented are:
1. Whether respondent has standing to maintain this action where he has no objection to the public display of a cross, but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols.
2. Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands.
But resolving this question may well lead the Court to reconsider the deeper constitutional question -- should the Establishment Clause be read as presumptively barring government speech that endorses religion? My guess is that there are now 5 votes on the Court rejecting the endorsement test: Justices Scalia, Kennedy, and Thomas, who have criticized the test in the past, and Chief Justice Roberts and Justice Alito, who I suspect (based on the jurisprudential camp from which they come) would agree with the other conservatives.
To be sure, there are other ways the Court could avoid the problem; it can conclude that:
Respondent (Buono, who successfully challenged the cross) doesn't have standing, for the reasons the government gives.
Respondent doesn't have standing, because simply being exposed to religious speech -- even if it violates the Establishment Clause -- isn't enough of an injury to allow standing. (This would have the effect of rejecting most challenges to government religious speech, but would leave government officials presumably still honor-bound by the existing substantive precedents, and would leave those precedents enforceable as a matter of federal constitutional law in those states that have more relaxed standing requirements.)
Even if there was an Establishment Clause problem when the government maintained the cross, privatizing the cross -- even in a way that's pretty clearly structured to preserve the cross on a little island of private property on government land -- avoids any such problem.
Even if the Establishment Clause prohibits speech that a well-informed observer would see as endorsing religion (that's the standard articulation of the endorsement test), a well-informed observer would see the cross here as a war memorial, not an endorsement of religion.
There is also another possible problem for the Court: Given that the memorial is a cross, then if it is seen as a religious symbol (i.e., if theory 4 noted above isn't accepted), it would presumably be seen as a symbol for Christianity as such. And some language in Justice Scalia's opinion in McCreary County v. ACLU suggests that Christian-only symbolism might be unconstitutional even though a more ecumenical (Christianity/Judaism/Islam-friendly) "acknowledgment of a single Creator" should be permissible. (See here for more on Justice Scalia's argument in McCreary.)
Nonetheless, it's also possible that five of the Justices might conclude that the underlying problem is the endorsement test, that the test is not only mistaken on the merits but is also too indeterminate to be reliably administered, and that the Court should provide lower courts and government officials clearer guidance for a wide range of cases by concluding that government speech isn't made unconstitutional by its endorsement of religion. Such provision of guidance for future cases is an important part of the Court's function, and the endorsement test's critics have long argued that the Court's adoption of that test has been a failure on that score. In any case, should be quite a case to watch (unless the Court decides the major issue in Pleasant Grove City v. Summum, which I doubt, given the posture of that case).
The result is that the "reasonable observer" winds up being the judge him- or herself, since the judge is really the only real person who has access to all that information.
If so, then what Establishment Clause doctrine would allow standing? I recall there's a special taxpayer standing doctrine that applies to the Establishment Clause only, but this theory doesn't rely on taxpayer status. Is there something else in Establishment Clause standing doctrine that I'm missing?
If so, could this case just be a vehicle for getting rid of the special Establishment Clause standing doctrines?
Petitioner's contention is that the sale was biased because the government only considered selling to purchasers that would preserve the monument. IMO, that's valid because, by choosing the buyer, the government implicitly chooses what is to be done with it.
This could easily be overcome by selling the parcel at auction with no preconditions, which petitioner has no hope of winning anyway.
Isn't this a factual decision to be made by a lower court? They could reformulate the test as "whether a well-informed historically literate observer ..." and remand.
First, the uninformed observer merely sees (or doesn't notice) a cross. He does not know if it is on Federal property or not unless he investigates.
If he asks a local at the one gas station for a hundred miles, the answer will be, "That's the VFW's memorial." The VFW chose the site and designed the memorial -- they must answer only to their membership about a lack of religious symbol inclusiveness. What next, will Arlington have to replace crosses on graves with pentagrams?
The VFW comprises people who have made sacrifices for the benefit of all of us, and it is fitting and proper for the US to honor those sacrifices by allowing the VFW to maintain their veterans' memorial.
The problem here is exacerbated because the Federal government owns so much of the West. But even so, there are (I believe) islands of private property in vast seas of BLM or Forest Service land. So an acre for the VFW's memorial should not be a radical departure from normal land management practices.
I'm surprised that 70 years isn't old enough..
With regard to the buyers, I think it makes sense to choose the VFW since they actually created it, as opposed to just picking a pro-cross group to sell to. For a parallel comparison, if there were a native american religious symbol that was in danger from the establishment clause, it would make sense to sell it back to the tribe from which it was originally obtained.
(note, I don't think this would be up for issue if it were not a christian symbol, but I think it should be handled neutrally anyway)
As late as 1833, you find Congressional bills that make reference to this, such as HR 653, 22nd Cong., 2nd sess.
This seems to be the bill that created this, from Journal of the Senate of the United States of America, 1789-1873, December 30, 1801:
The ACLU's theory of the First Amendment is completely contradicted by actual Congressional action in the decades immediately after ratification. Isn't it time to stop pretending that the ACLU's ahistorical theories have any relevance?
Cheers,
If I'm remembering this correctly, the original memorial was destroyed long ago, and the current one is relatively recent. Both, of course, were cross-shaped.
Religio and metus occur frequently together, for instance, Cic. ii. in Verr. 4, 45, 101, ut earn (cupiditatem) non metus, non religio continere, where we can translate the two words metus and religio by fear and awe, fear expressing the fear of men or of consequences, awe the fear of the gods. It is said in another place that when the moon was suddenly eclipsed on a clear night, the whole army was perturbed religione et metu, by awe and fear. Such expressions also as religio est facere aliquid do not refer to religious scruples* only, but to any qualms of conscience.
After a time, however, religio became more and more denned as the feeling of awe inspired by thoughts of divine powers. Thus Cicero states, religio est quae superioris cujusdam naturae quam divinam vacant curam caerimoniamque ajfert, 'Religion is what brings with it the care and cult of some higher power which they call divine.' As we find here religio and caerimonia placed side by side, we find likewise cultus and religio joined, the former expressing the outward, the latter the inward worship of the gods.
A distinction is soon made also between religion and superstition, as Cicero says, nee vero superstitione tollenda religio tollitur, ' though superstition should be removed, religion is not.'
Lastly, religio, and also the plural religiones, became the recognised names of outward religious acts, of cult and ceremony. Thus Cicero distinctly explains religio by cultus deorum, and he declares that the religion of the Romans is divided into sacra, sacrifices, and auspicia, observations of the flight of birds, to which a third part has been added, namely, when tho interpreters of the Sibyl or the haruspices declared something for the sake of prophecy from portenta and monstra. The auspicia he supposes to have been founded by Romulus, the sacra by Numa. In another place he distinguishes superstition from religion, quae deorum cultu pio continetur, ' which consists in the devout worship of the gods.' We meet even with such expressions as religio deorum immortalium, i. e. the worship of the immortal gods.
So far we can watch the natural development of the word religio in Latin. It began with the meaning of care, attention, reverence, awe; it then took the moral sense of scruple and conscience ; and lastly became more and more exclusively applied to the inward feeling of reverence for the gods and to the outward manifestation of that reverence in worship and sacrifice. There are some late writers who use religio in the sense of faith; for instance, Cassiodorus (died 562, A.D.), Religionem cogere non possumus, quia nemo cogitur ut invitus credat, ' We cannot force religion, for no one is ever forced to believe against his will': but in classical Latin religio never has that meaning.
Thus ends the biography of the word religio, so long as it lived its natural life, unchequered by technical definition. We can clearly see that what the Romans expressed by religio was chiefly the moral or practical, not the speculative or philosophical side of religion. The questions as to the existence, the character and powers of their gods, did not trouble their minds, so long as they were left to themselves; still less did they make their sense of moral obligation, which they called religio, dependent on their faith in the gods only. They had a feeling of awe in their hearts at the sight of anything that seemed to them overpowering and beyond the grasp of their senses and their understanding. They did not care much whence that feeling arose, but they called it religio, that is, considering, thinking twice, hesitating; that was enough for them. The idea that the gods had implanted that feeling in their hearts, or that a thing was wrong or right because the gods had forbidden or commanded it, did not occur to them, till they had come in contact with Greek philosophy. Their religion, if we may use that word in its later and far more general sense, was very much what Spinoza in his Tractatus theologico-politicus thinks that practical religion ought always to be, simple piety and obedience, as distinguished from philosophy and love of knowledge. The gods were accepted without any misgivings, their approval of what was right and good was taken for granted, and no further questions were asked. So great is the difference between religio, as understood by the Romans, and religio as commonly understood by us, that religio Romana would never have conveyed to Cato the idea of his knowledge of Jupiter, Mars, or Vesta, and the duties he owed to them, but rather that of ancient Roman piety. There is a well-known verse by Schiller:
It would seem to me that an establishment of Religion is an establishment of morality or legislative restrictions upon free will. When Madison suggested this amendment, he used "freedom of conscience" which aligns better with the true definition or religion.
A better idea is to stop pretending we're bound by the misguided ideas of a long-dead Congress. The government should no more encourage religious expression than it should encourage any other unfortunate holdover from a more benighted age, such as racism. If the founders didn't understand this, so much the worse for the founders.
Joseph Story was hardly a disinterested chronicler of the fight; he was actively in the 'This is a Christian nation, and should be" camp (see, e.g., here and here). His single voice on this is hardly more authoritative than, say, that of Madison and Jefferson, authors of the religion laws and Constitutional provisions of the time.The more you look, the more diversity of opinion you will find ... but that hardly makes any such thing authoritative. In the business of "ahistoricality", the CRW are the champs at revising history, and even just making sh*te up.
Cheers,
If there is anyone making stuff up, it is the crowd that asserts that the First Amendment was intended to create neutrality between religion and irreligion.
Yet that pesky Constitution prohibits the government from suppressing religious expression.
Which makes me wonder: If a man prays in a (National) forest and no atheist is around to hear it, does it still make a Federal case?"
Would a reasonable, historically-literate observer conclude that his prayer constitutes and endorsement of religion by the Federal government?
Excuse me?
Anyway, I'm a pretty strict Separationist, but I would vote for Door #4 -- a cross used in this instance seems to convey a message as a memorial.
I don't see it as conveying either a substantive religious message (Jesus died on the cross for our sins, and whoever believeth in him ... ), or even the meta-message that "We as a nation are Christians and if you want to be part of this nation, you will be too."
Given that the Sedition Act is in the VC news today, how do you feel about early Congresses' endorsement of the principle that the First Amendment's Free Speech Clause allows for the punishment of "false, scandalous, and malicious writing" intended to bring government officials into "contempt or disrepute"? What's the point of having a written Constitution if early Congresses can effectively amend its terms out of existence by passing laws which directly violate the plain language of its provisions?
Why did you even bother responding?
Amendments 1-12 were merely declaration, and not contrary to any part of the Constitution. Washingtons farewell address appears to confirm this as true.
Could you elaborate on what 'particular church' means? Which of the following are narrow enough to be prohibited?
1)The gov't promotes theism in general, relative to atheism.
2)The gov't promotes monotheism, relative to multi-deity religions.
3)The gov't promotes Christianity relative to other monotheistic religions.
4)The gov't promotes Presbyterianism over other Christian denominations.
5)The gov't promotes one particular type of Presbyterianism over other flavors.
6)The gov't promotes the Third Presbyterian Church of Murfreesboro over other congregations of the same denomination?
My reading of your comment is that #6 is prohibited - are any of the others?
Why would the Pentagon honor one fallen soldier by honoring a wish to place a cross on a headstone, yet dishonor another fallen soldier by declining to place a desired pentagram on a headstone?
These are not intended to be rhetorical questions.
I believe the intent was to avoid respecting an establishment of any institution based upon idealogy that is neither proveable nor disprovable through scientific experiment. This could include political parties. While a person is free to claim principles they closely align with, establishing a group that promotes those principles would be unconstitutional.
This attempts to impress a Christian perspective on all other faiths, like describing the feast of Hanukhah as "Jewish Christmas." In Western culture, a cross is a symbol of sacrifice. Not every faith has an easily visible symbol of sacrifice or death, and an attempt to include emblems of all faiths (the famous question mark for agnostics, a giant cow for Hindus...) would trivialize the monument, and turn it from a solemn memorial to a joke.
Why not ask the VFW?
pintler:
I don't think "promotes" captures the essence of what I believe 18th Century people would have thought of when they used the phrase "establishment" of a religion. I think it meant more like "adopts as the official religion" (like, e.g., the Anglican Church in England or Sunni Islam in Saudi Arabia.) Of course, that is NOT the current reading.
Anyway, my answer on original public meaning is "none of the above." If not, then I would say 4, 5 and 6 are all prohibited.
That doesn't prove your/Story's point -- it just shows that a majority of Congressmen in the early Republic either agreed with your reading of the First Amendment or didn't care about passing an unconstitutional act. (And, I suppose, that no one with standing cared enough to sue about it.)
Here is where Clayton wants to have his cake and eat it too. You can't prohibit 4 &5, in a constitutional sense, without prohibiting 3. James Madison understood this. In order to promote Christianity to the exclusion of other religions, you first have to define "Christianity." Madison, Story, and many other "key Founders" believed in the unitarian heresy that flunks the historical test for Christianity as much as Mormonism does. Yet, as with the Mormons, they presented their heresy as "Christianity."
So whatever can be gleaned from the historical record we cannot determine the Founders thought government should be able to promote "Christianity" (defined by its historical orthodoxy) to the exclusion of other religions, but not discriminate among the Christian sects. This is the fatal flaw in the "Christian Nation" argument.
We may be able to conclude that the First Amendment means:
1) government can promote religion in general not Christianity in particular;
2) government can promote "Christianity" in name only to the exclusion of other religions that don't call themselves Christian. But this means anything that calls itself Christian, even unitarian, atheistic or homosexual, gets to be Christian for legal purposes, or
3) Government can promote any religion it wants to the exclusion of other religions. And this means government can promote Mormonism or a particular kind of Presbyterianism to the exclusion of ANY other Christian sect.
It'd be great if the endorsement test is abolished. I don't see it in my copy of the Constitution. I do see a prohibition on the establishment of religion. The President is not the head of the national Church (sorry Obama, you're not really the Messiah). As late as the 1830s certain states had variations on an established Church, so Americans certainly knew what it meant back then.
This idiocy that a cross on federal land somehow means that Obama is the head of a Christian Church would be funny if it weren't so tragic.
And yes, I see little difference between the destruction of the buddhist statues and the tearing down of the cross here.
What else will be torn down by the libs? The Lincoln Memorial, which has "God" carved in stone on its walls?
The United States government, however, can't qualify for a pass. The Pentagon apparently was fighting, as recently as a couple of years ago, to prevent families from vindicating fallen soldiers' preferences for pentagrams on Arlington tombstones. It appears the government stonewalled Wiccans for at least eight years (while approving a number of later-filed requests to use other emblems of faith) and did not relent until sued.
Is there any reason any of the people who devised, implemented or defended that position should continue to be employed by our government? Anyone at the Pentagon (or is involved in civilian control of the military) who has that much difficulty acknowledging our Constitution or a dead soldier's wishes is plainly in the wrong business.
If anyone has a link to legal documents filed by the government in opposition to the Wiccans' claim, a pointer would be greatly appreciated.
Old war memorials have particular concern. Countries often agree not to dismantle or deface each other's war memorials as one of the conditions when they make peace. Would the First Amendment be construed to require the United States to continue a war rather than make or keep a peace on such a basis? Would anyone want such a result?
But then of course the government of an even more enlightened age than our own would be equally free to dispense with such archaisms as trials, habeas corpus, and elections. These provisions are also misguded, and in exactly the same way -- they also prevent the enlightened from doing what's obviously the right thing, and for the sole benefit of darks souls who just don't understand.
In this country, the electorate is entitled to throw enlightened people out of office and put complete idiots in their place (and everybody, no matter what their politics, seems to agree the electorate has actually exercised this right on numerous occassions.) If the enlighted weren't stymied by these rediculously archaic constitutional provisions, I have no doubt that elections would be one of the first things to go, with trials soon after.
By "particular church" I mean a denomination, like the Congregational Church, which was the established religion in Massachusetts; and by "established" I mean that it received subsidies, preferential treatment at law and so forth. "Promotes" is a little too weak to describe establishment.
So 5 for sure, or 4 if the denomination is unified.
Let me emphasize that my view of the Establishment Clause is thoroughly heretical. I see it as simply protecting the then-extant state establishments of religion from federal interference, either indirectly by competition ("Congress shall make no law respecting an establishment of religion") or directly ("nor interfering with the free exercise thereof"). This last phrase is generally held to defend individual religious freedom but in fact there's nothing for the "thereof" to refer back to except "an establishment of religion," the subject of the first phrase.
What about "religion"?
If it refers to "religion" then "the free exercise thereof" protected all religious practices, including human sacrifice, from governmental interference in federal territories - and now protects them against state action by way of the Fourteenth Amendment. It just makes better sense to see the phrase as protecting only the right of states to run their 'establishments of religion' without federal interference.
The general consensus among respondents seems to be that #1 and #2 are clearly allowed, and probably #3. That raises questions about some of the nuances - is Christianity the only monotheistic religion the government may 'promote' (however 'promote' is defined)? Could some future California administration promote Scientology (assuming, arguendo, that Scientology meets the monotheistic test), or can Utah promote the LDS church (if you classify it separately from the other Christian denominations).
Is the belief that the gov't may only prefer monotheism over pantheism rooted in the historical contaxt? I don't see a particular kind of theism mentioned in the text itself.
Secondly, once the gov't has decided to promote a particular religion - Catholicism or Wicca or whatever - what kinds of promotion are allowable? Statues of the Virgin or pentagrams in the courthouse, to the exclusion of other symbols? Tax breaks? Grants? What are the outer boundaries of what is acceptable?
Why do we respect some, over the others? They each are based upon a belief in how things work. They all receive donations from members and businesses. They all preach, and follow the head of their membership. House of Representatives always have an opening prayer before beginning a session of the house. What is the real difference?
ArthurKirkland concludes: "These are not intended to be rhetorical questions."
I would say that the VFW cares about civil religon, as opposed to true Christianity. Christianity as civil religon is an important part of our national history, but it has little do to with actually obeying Jesus. Even some conspirators have no truck with obedience to Christ - see Dave Kopel last year in a paper that started out to be about pacifism, was quite critical of the one evangelical Christian profiled, openly mocked the idea that Christians should seek to apply Christ's teachings and somehow mutated into being about guns (surprise!)
If in obedience to Christ we as a people were content with what we have, what would that do to our economy? If we resisted not evil, what would that do to our national defense?
Government officials promise to protect and defend the Constitution (language varying by office.) The Christian promises to obey Christ. At times these two promises are in tension, and the official must choose which is more important. This is one of the appeals of civil religon; it allows people to pretend that by serving the nation they are also serving God. (I don't claim to be able to read their minds, but I suspect this is the basis of a lot of the pious language of the founders/framers. Their lives and other words usually don't show much in the way of obedience to Christian teaching.)
There is a sense in which the government has already established a church; one with the trappings and symbols of Christianity, but none of the Spirit or committment. Even SCOTUS recognizes this, noting that many Christian symbols are valuable for their cultural/historical significance as opposed to their religous significance.
The cross in question advances the civil religon, but has little or nothing to do with Christianity itself.
Cheers,
Cheers,
The powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby remains with them, and at their will. That, therefore, no right of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States."
Here is an express and solemn declaration by the Convention of the State, that they ratified the Constitution in the sense that no right of any denomination can be cancelled, abridged, restrained, or modified, by the Government of the United States, or any part of it, except in those instances in which power is given by the Constitution; and in the sense, particularly, " that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States."
Words could not well express in a fuller or more forcible manner the understanding of the Convention, that the liberty of conscience and the freedom of the press were equally and completely exempted from all authority whatever of the United States.
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