Supreme Court Hears Case about Cross Display

[Brown]

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.

Oh, jeez, Property. You aren't getting tested on springing reversionary/executory interests or the Rule Against Perpetuities, I hope.

Without getting too much into Property ins and outs, we might point out that the Government retained a reversionary interest in the land, and a reversionary interest is a property interest. Thus, to say that the transfer meant that the land was no longer "Government-owned land" might be partly true. The Government retained a property interest.

Much was made of the fact that the Government had done its paperwork to transfer the land. The issue was whether transfer solved the constitutional problems. There was no question that the Government wanted the cross (and ONLY the cross) to stay up and that the Government had adopted the cross as an official memorial.

There was disagreement as to the effect of the Government's reversionary right over the land and the cross. From the oral argument:

GENERAL KAGAN: Yes, Justice Ginsburg. The Veterans of Foreign Wars here could in fact take down this memorial once it is transferred to them, if the Court allows that transfer.
JUSTICE GINSBURG: Could they then substitute whatever other memorial they chose?
GENERAL KAGAN: The --
JUSTICE GINSBURG: Or would there have to be some government approval?
GENERAL KAGAN: No, no, no. The reversionary clause which is at issue, which is a part of the transfer legislation, says that the VFW will have to put up a veterans memorial, but the content of that veterans memorial is entirely up to the VFW.

The rub, as Kagan explained later, was that if the VFW took down the cross and put up a different memorial it would lose national memorial status. Justice Stevens seemed to think there was more to it than that:

MR. ELIASBERG: But when the government maintains a substantial future property interest, they haven't sold the land. They've sold part of their interest in the land. So if you take away the reversionary interest and you remove the national memorial designation and then the VFW independently does choose to put up the cross, it's more than formalism. It is the --
JUSTICE STEVENS: But there is also the point that I don't think you stressed, that if the reversionary interest was activated -- say they abandoned or destroyed it, the property would come back to the government. And if I read the -- the designation of the national memorial statute correctly, the Department of Interior would have to rebuild the old cross and put it up. There's an affirmative duty to replace the cross if there is a reversion.
MR. ELIASBERG: I believe that that is correct, Justice Stevens, and that's an important point that is intertwined with the fact that the reversionary interest also continues the government's ownership in the land, when their whole position is, if we privatize it, as Justice Scalia pointed out, if it's just a private owner, then we don't associate this cross with the government. We associate it with the private owner.
But the government hasn't done that. It has maintained an important ownership interest in the land through that reversionary interest.

 

[Freddy]

Oh, jeez, Property. You aren't getting tested on springing reversionary/executory interests or the Rule Against Perpetuities, I hope.

Without getting too much into Property ins and outs, we might point out that the Government retained a reversionary interest in the land, and a reversionary interest is a property interest. Thus, to say that the transfer meant that the land was no longer "Government-owned land" might be partly true. The Government retained a property interest.

Much was made of the fact that the Government had done its paperwork to transfer the land. The issue was whether transfer solved the constitutional problems. There was no question that the Government wanted the cross (and ONLY the cross) to stay up and that the Government had adopted the cross as an official memorial.

There was disagreement as to the effect of the Government's reversionary right over the land and the cross. From the oral argument:The rub, as Kagan explained later, was that if the VFW took down the cross and put up a different memorial it would lose national memorial status. Justice Stevens seemed to think there was more to it than that:

Thanks. And yes, I am being tested on the Rule Against Perpeutities and executory interests, although neither apply here, since the future interest was created in the grantor.

Also, we've been told that we need to know the broad strokes regarding executory interests and the RAP, but that we aren't going to be tested on all of the intricacies (springing vs. shifting, etc). I expect a heavier focus on present interests, contingent and vested remainders, nuisances, and takings. Also, my professor does not seem sadistic (fingers crossed).

Back to the topic, would losing national memorial status mean that it no longer counts as a "memorial" for purposes of the grant? Because that would effectively mean that maintaining the cross was a condition of the grant, and I can see why that is problematic (although even then I think they would still be able to supplement it with more symbols so as to make it more inclusive).

I also see Stevens's point, that the designation as a national memorial may require the government to replace the cross if it were taken down and the government subsequently retook the land. This case seems to have several very close issues. Luckily it is heavily fact-bound, meaning we won't have to deal with any new and poorly formulated tests in future cases.

 

[Freddy]

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"?

In all fairness, though, if a group of Muslims were for some reason to erect a crescent with the stated intention of honoring all WWII dead, I would indeed consider it an honor to my (Christian) relatives who died in the war. That doesn't mean that I wouldn't also expect there to be secular memorials as well, but I would certainly not be offended if members of some religion that none of my relatives belong to wanted to honor my relatives (among others) in a way peculiar to their religion.

 

[pgwenthold]

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

Wow.

Because christianity is the most common religion, that means that christian symbols are for everyone!

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.

What is more outrageous is that Clarence Thomas thinks the same way.

 

[Brown]

What is more outrageous is that Clarence Thomas thinks the same way.

Actually, Justices Scalia and Thomas part ways on some religious issues. Thomas has suggested that the very first right in the Bill of Rights (freedom from establishment of religion) is not an individual right, but a right of states. (Justice Stevens has ridiculed that notion, and no other member of the Court--not even Scalia--has spoken a word in support of it.)

Thomas has suggested that nobody has a right to complain, even if a religion is endorsed by the Government, as long as there is no threat or coercion. Thus, Government has a right (perhaps even a duty) to take sides on religious issues, erect religious structures with taxpayer funds, and promote religion in general or a brand of religion in particular ... so long as those of other faiths are tolerated. What it would mean to be tolerated is unclear, but in general, if non-believers in the officially approved theistic views don't get penalized, fined or tossed in the slammer, they've got no legal beef. As far as I know, Thomas stands alone here, not even Scalia supports this view. (Scalia has publicly stated, in some cases in written opinions, that the Government MAY express a preference for religion over irreligion, and for monotheism over other forms of theism, including atheism.)

 

[Brown]

Comment from Prof. Geoffrey Stone. He felt that the notion that the cross could be deemed a neutral symbol was preposterous on its face. What struck me as interesting, however, was the comparison he made to the now-long-outdated "separate-but-equal" doctrine:

In its 1896 decision in Plessy v. Ferguson, the Supreme Court upheld the constitutionality of racial segregation. In so doing, the Court considered the symbolic meaning of the legally-mandated separation of blacks and whites into "colored only" and "white only" railroad cars: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

The Court is wrong in Salazar for the same reason it was wrong in Plessy: In both cases, the justices allowed meaning to be determined by the perceptions of the dominant forces in society, who like to imagine that their understanding of the world is neutral, natural, and objective. It is not.

The inherent message of segregation was not one of racial neutrality, but of racial subordination and inferiority. The inherent message of the cross is not a neutral testament to fallen heroes, but a potent affirmation by government of the Christian religion. This our Constitution does not allow.

 

[Almo]

I haven't had time to read past posts 38 and 40, but thanks again to Brown for some excellent legal posts.

 

[pgwenthold]

The Court is wrong in Salazar for the same reason it was wrong in Plessy: In both cases, the justices allowed meaning to be determined by the perceptions of the dominant forces in society, who like to imagine that their understanding of the world is neutral, natural, and objective. It is not.

That's kind of like the comment I made above. Just because christianity is the most common religion, that doesn't mean that it's symbolism applies to everyone.

 

[Brown]

"Cross"-reference to a thread in which it is reported that the cross has been STOLEN!!

 

[Brown]

According to CBS News and the AP:

...it is not clear whether the Veterans of Foreign Wars or the current caretakers Henry and Wanda Sandoz will be permitted to replace the old cross.

"He's wanting to go right now and put another one up," Wanda said of her husband. "It's not going to be an easy thing to do. He's 71 years old and he's rarin' to go, I'll tell you."

The report said: "(B)ut the most recent case ended in a 5-4 ruling by the Supreme Court that the cross should remain where it was." That's not exactly wrong, but it's quite a bit short of being right. The effect of the ruling was that there would be further procedings about whether the cross was properly there (what Justice Stevens characterized as a "do-over"), not that the cross may remain there in perpetuity.

It is possible that those challenging the presence of the cross may ask for a modified stay (or other injunctive relief) pending outcome of the "do-over." A stay would maintain the status quo (i.e, NO cross on site, not even a box-covered cross) until the litigation is concluded. There would be some facial appeal to a stay, in that there is no good reason to have someone spend a lot of time and money to erect a cross that might have to be torn down--at the expense of additional time and money--a few months later.

If such relief is requested, there is a chance there would be a fairly strong indication from the lower court as to which way the case is likely to be decided on the merits.