Supreme Court Hears Case about Cross Display

Is this a case of Alito being an "activist" judge, and redefining the facts of a case before him, as opposed to properly evaluating the judicial process?
 
Wow, we're fast. The story hasn't even hit the major wire services yet.
pgwenthold said:
Is this a case of Alito being an "activist" judge, and redefining the facts of a case before him, as opposed to properly evaluating the judicial process?
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To my way of thinking, the label "activist" is next to meaningless. Alito, like Scalia and Thomas, wanted to end all the litigation (with the cross remaining up, of course). Alito's rationale is (shall we say) extremely THIN legally (the good Justice apparently being unable to find a single precedent that the government may select a cross to honor people of all faiths), but I would not call that "activist" by most conventional meanings of the word.

To me, Justice Alito's opinion has the earmarks of being "result-oriented." The law is not in his favor, and neither are the facts as found by the lower courts, but he reaches his preferred outcome anyway. As one jurist once said, "Results-oriented jurisprudence is never justified because it is not our job to try to produce particular results. We are not policy-makers and we shouldn't be implementing any sort of policy agenda or policy preferences that we have." That jurist was Justice (then-Judge) Alito, during his confirmation hearings.
 
Using the reasoning in this ruling, could a municipality sell 500 square feet or so of land on the courthouse lawn to a church group, who coincidentally put up a manger scene on "their" property at Christmas time?

FWIW, it would seem to me that this could have been solved simply by applying the same reasoning as is normally applied to courthouse lawn displays. Include other, secular, elements that are associated with honoring veterans and fallen soldiers, to make it clear that one isn't endorsing the particular religion, but rather invoking the symbol of the traditional graveyard cross in military cemeteries. Unless of course that wasn't their agenda in the first place.
 
Okay, some stories are starting to come out on the local services ... and some of them are inaccurate. Technically speaking, the cross is still in jeopardy. The lower courts may make allow a damning record to be made, and then find a constitutional problem with the land transfer anyway.

This is may be difficult, however, since the Court's plurality seems to include quite a bit of language that would undercut that conclusion. And yet, Buono's case is not hopeless. Some of the more quote-worthy parts of Justice Kennedy's opinion are dicta (unofficial commentary that is unnecessary to the outcome of the case). Dicta (especially dicta in a plurality opinion) are not law, but they make good sound bites, and so early reports are quoting them. A lower court might well ask, "Is such-and-such a proposition an opinion of the Court? Is such-and-such a proposition supported by legal precedent?" The decision today will do little to help the lower court answer those questions.
 
Meadmaker said:
FWIW, it would seem to me that this could have been solved simply by applying the same reasoning as is normally applied to courthouse lawn displays. Include other, secular, elements that are associated with honoring veterans and fallen soldiers, to make it clear that one isn't endorsing the particular religion, but rather invoking the symbol of the traditional graveyard cross in military cemeteries. Unless of course that wasn't their agenda in the first place.
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Another approach is even simpler. Honor fallen servicemen with a non-sectarian symbol. This is the NORM throughout the US, so it can be done. The Mojave cross is the only national memorial that includes a solitary cross.

Why is this so hard? Why not have a non-sectarian memorial?
 
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Roma said:
Well there could be an argument that it is now an historical geographical alteration of that desert site and therefore removing it would be an additional alteration of that site and could require an enviromental assessment to determine the consequences of such a removal. Is there a burrowing owl nest anywhere around it?

Anyhoooo...I'm not really joking.
The cross was erected in the 1930's

"The cross in the desert was erected in the 1930s by the Veterans of Foreign Wars to honor fallen service members"
http://www.nytimes.com/2009/10/08/us/08scotus.html?_r=2&hp
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If i am not mistaken, the cross was completley replaced about 15 years ago, by the same rancher that they want to do the land swap with.

It's just a couple of metal pipes.

edit - never mind, I see that the point's been made.
 
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Lurker said:
I just do not understand Scalia's mindset or anyone that agrees with him here. How can he possibly argue that a cross commemorates non-Christian war dead as well? Is the memorial devoid of any religious connotation at all in his mind even though it has a cross? does he really think everyone embraces the cross as a symbol of honor and respect for the dead?

I just don't get Scalia.
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That's because you don't understand. Jesus loves all his children.:D

In otherwords, Scalia is just another Christian that doesn't understand that not all people feel honored to be acknowledge with a cross.
 
thaiboxerken said:
That's because you don't understand. Jesus loves all his children.:D

In otherwords, Scalia is just another Christian that doesn't understand that not all people feel honored to be acknowledge with a cross.
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Are you suggesting that Jews don't honor their dead with crosses?

I mean, why wouldn't they? Don't they know what the cross stands for?
 
Brown said:
Justice Kennedy agreed with the point made by Justice Scalia at oral argument, namely, that the cross honors EVERYONE, regardless of religious beliefs. To remove the cross is to diss ALL of the country's fallen soldiers.
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A small nit. Kennedy said that those who erected the cross intended for it to honor all the dead, including non-Christians. Given that the cross was first put up in the 1930s, that was likely true: people weren't as sensitive about things like that back then, and establishment clause jurisprudence was rather scant. Whether that justifies "grandfathering" this cross is certainly debatable, especially since the original cross was removed and a new one installed much more recently.

But if the federal statute is upheld, then the cross will no longer be on public property. If they sold the land specifically to avoid the appearance of an endorsement of religion, then they have still avoided the appearance of an endorsement of religion - the government basically stipulated that it could not have the cross on land owned by the government. So they sold the land. Now it isn't on land owned by the government. Why should it matter why they sold the land? Was selling the land not within Congress' authority?

At any rate, this case does nothing to clarify exactly what is acceptable and what is not, and therefore it is likely of little precedential value outside of further proceedings in this case.

ETA: Due to the publicity of this case, any informed person who sees the cross would know that it does not sit on federal land, even though it is surrounded by federal land. I don't see any reason to cater to those who are the most ignorant about current events. That may not be a good legal argument, because the reasonable person standard might not be the right one for the situation, but it will likely be at least somewhat persuasive to the average lay person.
 
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Brown said:
Another approach is even simpler. Honor fallen servicemen with a non-sectarian symbol. This is the NORM throughout the US, so it can be done. The Mojave cross is the only national memorial that includes a solitary cross.

Why is this so hard? Why not have a non-sectarian memorial?
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But that one is already there. If you were building a new one, that would make sense, but there's one already there, a relic of a bygone time, perhaps.

It's one of those things I just can't get worked up about. I could get a little bit worked up about Congress very specifically going out of its way to ensure that the cross was displayed, but not much. I could get very worked up if legislatures and city governments started exploiting this sort of loophole by selling small plots of land that were exactly big enough for religious monuments, but I don't see that happening. In this case, the cross was there, and people wanted to keep it. It's not something that I see as a real problem.

A couple of years ago, the court decided two cases, the summary of which was that you could keep existing religious monuments, but couldn't build new one. I'm ok with that, even if it involves doing some maintenance every now and again. I see this case as having some differences procedurally, but being fundamentally about the same sorts of issues.
 
I think this should be promoted as a step toward secularizing the cross. Then maybe the xians will complain about "them" taking the cross out of christianity and be a little more hesitant to try and get it used publicly and then maybe we won't have to deal with this kind of thing anymore.

But it probably wouldn't work.
 
Brown said:
Justice Stevens also felt is was necessary to repeat what should be clear, that the "solitary cross conveys an inescapably sectarian message. ... Making a plain, unadorned Latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian."
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Justice Stevens will long be missed.
 
Freddy said:
But if the federal statute is upheld, then the cross will no longer be on public property. If they sold the land specifically to avoid the appearance of an endorsement of religion, then they have still avoided the appearance of an endorsement of religion - the government basically stipulated that it could not have the cross on land owned by the government. So they sold the land. Now it isn't on land owned by the government. Why should it matter why they sold the land? Was selling the land not within Congress' authority?

At any rate, this case does nothing to clarify exactly what is acceptable and what is not, and therefore it is likely of little precedential value outside of further proceedings in this case.
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The concern with three of the dissenters was not that the Government was trying to solve the problem, but that the Government was trying to solve the problem while specifically enabling the cross to stay up. In other words, the Government was trying to get rid of the legal entanglement while still wanting to keep the cross on display.

As others have said, if the government wants to get rid of the entanglement, let it offer to sell the land to folks who want to put up OTHER religious symbols. Oh, no, the Government doesn't want to do that!

I agree that the case does little to clarify the substantive issues. On the issues of procedure, the main plurality and the dissents agreed on quite a bit. Justice Stevens remarked that on some points the plurality was correct and "I agree with the plurality’s basic framework..."
 
The Supreme Court has already indicated that references to "God" are not necessarily religious, if the usage was not intended as such. Now some members of the Court have said that a cross is not necessarily a religious symbol, if it was not intended as such.

The notion of "intent" in Establishment cases opens the door to all sorts of mischief, some of which we saw in the Ten Commandments cases and the Pledge case. Those who seek to foist religious concepts upon others by law NEVER do so with the intent of religious proselytization or establishment. Oh, no. They do it for OTHER noble purposes, such as to teach history or promote culture or solemnize events or develop ethics or accommodate others or advance education or honor the dead or encourage social harmony or raise community standards or blah, blah, blah, blah, blah.

In other words, these cases typically REEK of disingenuousness and false evidence of non-religious motives.
 
Brown said:
The notion of "intent" in Establishment cases opens the door to all sorts of mischief, some of which we saw in the Ten Commandments cases and the Pledge case. Those who seek to foist religious concepts upon others by law NEVER do so with the intent of religious proselytization or establishment. Oh, no. They do it for OTHER noble purposes, such as to teach history or promote culture or solemnize events or develop ethics or accommodate others or advance education or honor the dead or encourage social harmony or raise community standards or blah, blah, blah, blah, blah.

In other words, these cases typically REEK of disingenuousness and false evidence of non-religious motives.
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It's the old nonsense about how the God in the Under God in the pledge doesn't really mean God, but is "ceremonial deism." Yeah, and all those members of Congress standing on the Capital steps bellowing "under God" are just a lot of Ceremonial Deists...
 
Brown said:
The concern with three of the dissenters was not that the Government was trying to solve the problem, but that the Government was trying to solve the problem while specifically enabling the cross to stay up. In other words, the Government was trying to get rid of the legal entanglement while still wanting to keep the cross on display.

As others have said, if the government wants to get rid of the entanglement, let it offer to sell the land to folks who want to put up OTHER religious symbols. Oh, no, the Government doesn't want to do that!

I agree that the case does little to clarify the substantive issues. On the issues of procedure, the main plurality and the dissents agreed on quite a bit. Justice Stevens remarked that on some points the plurality was correct and "I agree with the plurality’s basic framework..."
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But the grant, if you read it closely, does not prevent more symbols being added (or even replacing the cross with a non-religious memorial). The language of the grant creates a fee simple subject to a condition subsequent (Justice Breyer quotes the relevant clause in his dissent). The condition is not that the cross remain up, but simply that the land continue to be used for a WWI memorial. Technically, the cross could be replaced or supplemented with other symbols without violating the condition. It seems to me that the relevant consideration is not whether the grantee will actually replace or supplement the cross, but merely whether the government requires the grantee not to replace or supplement the cross. There is no such requirement.

This is great timing, because I can study for my property exam while still feeling as if I am procrastinating. :)
 
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The cognitive dissonance on this one is just amazing.

Is this case about the government cutting across a parking lot to avoid a red light?
 
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pgwenthold said:
Regardless of the intentions of the erectors, can someone really make the case that a Jewish observer would view a cross as "honoring the dead Jewish soldiers"?
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From the oral argument:
MR. ELIASBERG: ... I believe that's why the Jewish war veterans --
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.
MR. ELIASBERG: Well, my -- the point of my -- point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross. This cross can't honor us because it is a religious symbol of another religion.
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And there was this:
JUSTICE SCALIA: Has the government ever turned down -- let's say the Jewish war veterans request to put up a war memorial on --
MR. ELIASBERG: They did. There was a request made for -- to put up a memorial on the site, and the government said no and said, our regulations forbid it.
JUSTICE SCALIA: I am talking about -- on this site?
MR. ELIASBERG: Yes.
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Justice Scalia, apparently trying to suggest that the Government wasn't playing favorites with religious affiliation, when informed that it WAS doing such a thing, said he didn't think it mattered.
JUSTICE SCALIA: ... what I'm getting at is I don't agree with you, that -- that every time the government allows any religious symbol to be erected, it has to allow all religious symbols to be erected at the same place, so long as it is -- it is not discriminatory in -- in accepting or rejecting requests to erect religious symbols in different places.
...
JUSTICE SCALIA: I mean, do you know of any instance in which Jewish war veterans or if there is an organization of Muslim war veterans, requested to erect a memorial on public land, it was turned down?
MR. ELIASBERG: As I said before --
JUSTICE SCALIA: I just don't see why they all have to be on the same piece of land, in -- in order for the government to be impartial.
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The Brief for Secretary of the Interior made no mention of Jews being honored or that any reasonable person would come to such a conclusion. The amicus (friend of the court) briefs basically did not argue that Jews were honored by a cross or that there was any perception of honor. A couple of the briefs (arging in FAVOR of keeping the cross) actually suggested that history went the other way, pointing out that in WWI, Flanders Field (famous for its crosses row on row), Stars of David were used to mark the graves of Jewish soldiers. But they were also quick to point out that everybody else got a cross regardless of religion or lack thereof.

Keep in mind that some of the briefs filed with the Court were downright loony (which happens in many of the cases involving religion, curiously), but even the craziest did not argue that anyone thought a cross honored Jewish soldiers or that people would realize that the cross was erected to honor Christians AND persons of all other faiths--particularly the Jewish faith--as well.

But Justice Scalia apparently felt otherwise.
 
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