Justice Scalia's Cross
There was a time in the United States, early in the Nineteenth Century, when some judges claimed that Christianity was the rock and foundation of American law. In 1811, for example, New York Chancellor James Kent upheld a blasphemy conviction on the ground that "we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity." Other religions, Kent added, were not protected against derision, because the United States was premised on Christianity and "not upon the doctrines or worship" of Judaism, Islam or Hinduism, which he dismissed as mere "imposters" and "superstitions."
At the time, men like John Adams and Thomas Jefferson sharply criticized this view. Jefferson wrote a celebrated attack on the claim that Christianity was part and parcel of the law of the land, concluding that it was a sheer fabrication. Over time, Adams and Jefferson carried the day, and the argument that American law is an extension of Christian doctrine faded from view.
Every so often, however, we hear echoes of this position. On several occasions, I have raised the question whether some of our current Supreme Court justices may have failed adequately to distinguish between their own personal religious views and their understanding of the Constitution. Justice Scalia, in particular, has taken umbrage at this suggestion. (See Justice Sotomayor, Justice Scalia and Our Six Catholic Justices (August 28, 2009).
In light of his sensitivity on this subject, I was surprised to read the following rather remarkable exchange between Justice Scalia and ACLU lawyer Peter J. Eliasberg during oral argument this week in the case of Salazar v. Buono, which deals with the constitutionality under the First Amendment's Establishment Clause of the display in the Mojave National Preserve of an eight-foot-high Christian cross, originally erected by the Veterans of Foreign Wars as a memorial to soldiers killed in military service.
This exchange followed a passing observation by Mr. Eliasberg to the effect that the cross honored Christians rather than "all of the people for fought for America in World War I."
JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --
MR. ELIASBERG: I believe that's actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and 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.
At this point, Chief Justice Roberts changed the subject, mercifully saving Justice Scalia from further embarrassment.
Mr. Eliasberg's point wasn't about whether the members of the VFW who erected the cross did or did not intend to honor the non-Christian dead. It was, rather, that the very presence of the cross changed the nature of the space into one belonging to Christians. This observation was hardly provocative or "outrageous." But Justice Scalia did not see it that way.
Of course, this was only an exchange during oral argument, rather than a judicial opinion. Justices at oral argument often explore novel ideas. They have even been known to be playful, sometimes teasing the advocates. But this was neither novel nor playful. Nor was it intellectually interesting. It was, rather, another example of Justice Scalia's apparent proclivity to see constitutional issues through the lens of his own religious understandings and beliefs.
No doubt, Justice Scalia will once again deny that he is influenced by anything other than the "original" intentions of the Framers and the Supreme Court's precedents. Let the record speak for itself.
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Mr. Eliasberg missed an oportunity here. He should have agreed with Scalia. Yes, the cross was intended to honor all war deaths even if non-Christian, but what does that say about the honoror (the person honoring the deads)? He's a Christian. If a star of David was put there instead of the cross, then the honoror is a Jew. If a Muslim half-moon/star was placed there, then the honoror is a Muslim. Becuase the government can't be Christian, Jew or Muslim, the cross (or any other religious symbol) must be removed.
Religious symbols ARE divisive, Justice Scalia. That's why they shouldn't be on public ground except for religious centers and cemetries of course :)
See Sandy Goodman's Profile
justice scalia has my vote for being this month's biggest jackass. how anyone can assert anything more stupid than that "the cross is the most common symbol of the resting place of the dead" of all religions i cannot possibly imagine. this country is full of non-christians -- not to mention non-believers -- and there were plenty of both around during the first world war. i think all of them would be insulted, as i would be, of use of a cross--symbolizing a religion they didn't believe in--as a memorial to them. this is still another example of scalia's extreme narrowmindedness. he's a smart guy who's spent his whole career on the bench walking around with blinkers on, like a horse that pulls an open carriage around new york's central park, and whose owner doesn't want the horse scared by the vehicle traffic--or anything else new and different--moving past it. justice scalia is a horse's ass.
Read more at: http://www.huffingtonpost.com/geoffrey-r-stone/justice-scalias-cross_b_314752.html
Don't insult the horse!
"Where to now St. Peter?
If it's true I'm in your hands
I may not be a Christian
But I've done all one man can
I understand I'm on the road
Where all that was has gone
So where to now......St. Peter
Show me which road I'm on"
Scalia and his sidekick Thomas are insults to the institution. Can you imagine what the court would look like, and will look like, if Obama hadn't of won? One of these knuckleheads needs to retire.
Sadly, Catholics don't have " Gladly, the Cross-eyed bear " in their hymnals...
I haven't heard that hymn mentioned since I was a little boy.
Time to impeach Scalia.
That's right. IMPEACH.
Scalia is not upholding our Constitution; he is undermining the First Amendment.
How can we do that? I'd love that more than ice cream.
You and I cannot do it, unfortunately.
The House of Representatives has to vote to impeach. Then the Senate has to vote to convict on the Bill of Impeachment. If both pass, then it is done. There is no appeal.
Considering the sad state of Congress, it is highly unlikely.
Yes. I've always found it telling how quick Scalia is to take umbrage when challenged. He seems to take his own authority so very seriously, as opposed to other justices of note who present themselves with a great deal more "gravitas." This points to what I see is his real fetish for authority. This is not so bad in and of itself. What is of more concern, I think, is the source for this foundational belief.
It is no secret that Scalia is a devout catholic. I think one need look no further than his evident embrace of catholic authoritarianism as an explanation for his support of the expansion of executive power at the expense of the legislative branch, for example. His rejection of the idea of a living constitution - one that can be reinterpreted based on changing social mores - could also be explained by the catholic notion of the fallen nature of man.
Problem is, if you believe man's nature is fallen from the start, it calls into question the very validity of a Constitution written by men. I am certain Scalia has developed a lot of fancy footwork to explain away how he has sworn to uphold something he, in reality, doesn't really believe in. Religious belief innervates him to the extent that I question how he can be a principled jurist; it is clear he can't separate church concerns from his state function.
If the cross "represents everybody" then it has no meaning as a religious symbol. You might as well trade it in for a Santa Claus.
You can't have it both ways Justice Scalia.
Why do you think he was placed on the court in the first place?
Such a "doh!"
Hasn;t the site been just recently been purchased from
the government by private individuals? if so,
The site is no longer owned by the government-thus, that should end
the controversy
Mr. Eliasberg is correct in his assuption that the cross is a Christian symbol; Scalia is probably correct in his assuption that the cross was intended to honor all people equally. I think the better solution would be to ask other faiths to put up symbols to honor war dead in the same acre of land. The genuine faith of the past can be upheld and enhanced without anyone losing.
Respectfully disagree. A committee or board would have to be set up to allow or reject symbols. (and if they reject one, the discussion is back here to what is appropriate.) Otherwise someone will put up the equivalent of a festivus tree there, trivializing the entire grounds.
One symbol, representing the U.S., placed by a government agency, to honor the war dead.
I agree. One symbol, representing the United States, to honor the war dead.
A United States flag should be quite sufficient.
Put the crosses, crescents, pentagrams, whatever, on the headstones, per the wishes of the deceased or their family.
While there is some real merit in your point, I respectfully disagree with the idea that no religious symbol is more representative of our country than many religious symbols. We are, for the most part, a religious group and the Constitution is equally protective of religion in general as it is adamant about not favoring any specific religion. The historical importance of this particular cross is real, and history is a part of America. That is why I think it would be better to try to enhance the site than to erase it.
Scalia has proven the truth of Sotomayor's "wise Latina" comment: we are *all* prisoners of our own preconceptions -- that's why diversity on the Court is essential.
"xenofile"
Short & sweet. DIRECTLY to the point.
To pretend otherwise is bogus and fools no one.
No matter how many insist the emeror "does too!!" have clothes on.
nice
tm
Scalia is the most activist judge on the court. He just makes up law to fit his personal opinion and his personal prejudices. And his judicial clone, Clarence Thomas, follows right along happily behind him.
What about Normandy Beach War Memorial? What about the Red Cross, or Blue Cross / Blue Shield?
Should they all be changed to squares or circles? This is WAY overthinking 'stuff'. I am absolutely sure that the men buried under those symbols don't give a #!@$#!!!
These protesters have way tooooo much time on their hands to worry about such trivial stuff.
And by the way. 'One Nation under God' doesn't specify which God. Just God. Not my God or Catholic God or Jewish God or ...............etc. Live with it!
Boy, are you missing the point. The cross clearly symbolizes that Jesus Christ died for our sins so that we pass to Heaven. Thats great - if your a Christian. Jewish, muslim - not so much.
Wait.....how is she missing the point? I am sure not every soldier buried at the Normandy beach war memorial was a christian, so is that also offensive, should those be changed. That is a goverment funded war memorial the same as the cross?
Or, an atheist. Some of us have no desire to have Christianity stake a claim on our lives.
Thank you for speaking out and lending the stature of your position and that of the University of Chicago Law School to this discussion.
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