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Thursday, October 08, 2009

Bearing the Cross

Alas, I've been busy with other things, and haven't paid close attention to the Salazar v. Buono case, on which oral arguments were held yesterday; here's an account from Dahlia Lithwick.  The news accounts are focusing, rather understandably even if no one thinks he will be forming a majority, on Justice Scalia's questions about whether the cross can be understood "the most common symbol of the resting place of the dead," as a simple war memorial that honors everyone, or whether it has specifically Christian connotations.  I have three observations about this.

First, if Justice Scalia is suggesting the cross is unobjectionable because it is a generalized "war memorial" with no necessary Christian meaning, that is in some contexts not a "religious symbol," to quote Lithwick, then obviously that is incorrect.  And not just incorrect, but equally offensive to those who believe strongly in the cross and those who believe in other religious symbols or none at all.  It's another example of the problems with civic religion, ceremonial deism, and other such arguments.  (Not to say they have no merits at all; just that they're problematic.)

Second, however, I'm not sure that's what Scalia is saying, although it seems to be how the news accounts are treating it.  If he is simply observing that it is outrageous to say that the cross only honors the Christian war dead, I think he is on much stronger ground.  Clearly the erection of a monument meant to honor the war dead, particularly in a society whose context is fairly pluralistic and inclusive, and in which civic religion often does take "mildly" Christian forms (depending of course on one's perspective; from other perspectives, both Christian and non-Christian, to call the cross "mild" is to rob it of its meaning), is not directed only at the Christian war dead but at everyone in the cemetery.  Scalia is right on this as a matter of fact, I think.  That doesn't mean anything dispositive ought to follow from it.  If a sign was erected on public land in a cemetery that said, "We honor all the brave soldiers who rest herein, although given that Jesus Christ is the way, the truth, and the light, we think the non-Christians among them will burn in Hell for eternity.  Still, good job, everyone[,]" it would be quite clear that the sign honored all the war dead, Christian and non-Christian alike.  The question would be whether government is disabled from making that kind of statement.  Scalia is wrong if he thinks the cross is so nebulous and meaningless that it makes no such statement; for some, the cross itself, without more, is entirely equivalent to the statement I have suggested above.  He is right, on the other hand, if he thinks that a symbol can be both particular to a specific religion and meant to honor people of other faiths, although again it may be that the Establishment Clause bars this kind of de-haut-en-bas tribute to outsiders.

Finally, in this snippet from oral argument and in his opinion in the Ten Commandments cases, I find something strangely inconsistent about Scalia's arguments.  I'm not knocking him here for taking a particular view of what the Establishment Clause requires as a matter of text and history; I'm suggesting that on certain cases, like these and like the VMI case and Romer, his methodology, which is supposed to rescue him (and us) from his normative views, clearly fails to cabin those views or prevent outbursts that are clearly about his own views about what society ought to be like rather than his views about what the Constitution actually requires.  Although I ardently disagree with the view that the Establishment Clause places Judeo-Christian monotheism (with Islam grudgingly included) within the pale and other religious beliefs beyond it, or that it does not prevent the state from placing generalized Christian symbols at the heart of public displays, provided they form part of the general culture and do not make too specific an endorsement (a task that is made easier by his refusal, for instance, to believe that anyone could care what text the Ten Commandments display, or whether different kinds of crosses have different kinds of meaning), it is just dimly possible to construct such an argument on historical grounds without one's own views intruding into it.  

But Scalia's attitude in the Ten Commandments cases and in yesterday's oral argument, even if we accept my reading of the exchange over the public meaning of the cross, seems to pretty clearly indicate some deeper wellspring of passion operating here, one that ought to be irrelevant to what he takes to be his own interpretive role, and one that frankly I find pretty close to incoherent.  Scalia seems to want to preserve a symbol that he views as being of profound importance, at the same time to cast doubts on whether it actually has that importance by imposing his own view of what the message of that symbol is ("all war dead honored here") over others, and to take offense at the very notion that anyone not of that faith might take a different message from it.  In these sorts of cases, I think Scalia comes closer than he is willing to acknowledge to what he sees as the central flaw of his colleagues: that in some cases passion is in the driver's seat rather than constraint.

Posted by Paul Horwitz on October 8, 2009 at 10:37 AM in Paul Horwitz | Permalink


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Given that so many different religions and views, ranging from Orthodox to Catholic to Protestant to LDS, all hold up the cross as a symbol relevant to their faith, what religion is government establishing if it erects a cross on it's land? Is it inventing its own Ortho-Cathestant-LDS super-religion?

Would it be sufficient if every monument with a cross and every ten commandments carving had a plaque bolted to it that reads, "this monument is not an endorsement of any religion"?

Posted by: Schmedlap | Oct 13, 2009 9:48:15 PM

"Buono's injury is primarily the knowledge that the Constitution is being violated"

This implies that anyone with such knowledge would have equal standing under his arguments. Buono, however, was an Assistant Superintendent of the preserve in question. This helps explain why he has specific contact with the cross (the random American might not have much reason to visit the area, but he surely does, and has) in question and such contact provides standing in religious display cases of this sort. Also, it's important to note that Buono himself is Catholic. His litigation is not overly surprising if we recall so was William Brennan.

It is useful to note that originally, after a Buddhist wished to put in place a Buddhist symbol, the Parks Service did not just say "no," but planned to remove the cross. Instead, Congress stepped in and went out of its way to favor this specific symbol. Some might suggest it was a sort of "grandfathering" ala Breyer's belief that longstanding religious symbols might be acceptable. But, given the refusal to allow the installation of a Buddhist symbol in particular, and so forth, religious favoritism also is a reasonable assumption.

As to Justice Scalia, his Ten Commandments dissent underlines his respect for religion is somewhat selective, particuarly his refusal to accept that the wording of the display matters. His argument that the wording is in effect interchangeable would be problematic to many of those back in the Framers' day, where such word choice made lots of difference.

Posted by: Joe | Oct 9, 2009 10:48:13 AM

Perhaps Jimbino should let Catholics speak for Catholics about their faith. Such an incendiary view of another's faith raises the question of whether Jimbino intends to fight off state religion, or whether he would impose state atheism. Keeping the state separate from religion, does not mean that the state must be atheist, it simply means that it ought not favor one religion over another. If someone is going to have a conniption every time they see a cross, who is really being oppressive about their views? I see a lot of things everyday I don't like. I don't feel a need to confront every irritant I encounter (although I am apparently making an exception in writing this).

Anyway, this case should largely be thought about as a standing case, in my view. Buono's injury is primarily the knowledge that the Constitution is being violated. Having already established in numerous cases that being peeved by government action is not the sort of injury that the Court requires, it does not seem like Mr. Buono is really the right person to bring this suit. Like it or not, standing requirements do exist, unless you think SCOTUS accepted this case in order to rid itself of standing requirements (hint: it didn't).

Posted by: A Catholic | Oct 9, 2009 8:25:27 AM

I wonder what role, if any, the perspective of a Mormon would have here? Which argument would the Mormon perspective support? Mormons believe in Christ, yet they do not use crosses at all in the practice of their religion as do Catholics. Mormons consider themselves Christians, but many Protestants do not consider Mormons to be Christians. Does the cross represent or honor Mormons?

As a Mormon myself, I am not offended at a cross on federal land. On the other hand, Mormons are different than Muslims or atheists in that, while displaying a cross is somewhat inconsistent with usual Mormon practice (because Mormons prefer to remember Christ's resurrection rather than his death), it certainly is consistent with Mormon beliefs and theology. For this reason, I think most Mormons would feel like they would be included as "the remembered and honored" with the display of a cross...even if the cross was erected by Protestants and Catholics who do not consider Mormons to be Christian.

Posted by: a Mormon perspective...if anyone cares | Oct 8, 2009 11:20:11 PM

I am sure that Scalia is well aware of the insult to atheists and others that the crucifix or cross represents. That's why he's not fit to serve in the post he's been appointed to.

Crosses in Catholic hospitals do go with the territory, which is a territory subsidized by taxpayers in general. You can be sure that there is no way that a crucifix in my hospital room here at Seton Hospital in Austin will survive my stay there! I will cause a riot and attack the padre with my crutches before I suffer such an insult, and I can't wait for the opportunity and the resulting lawsuit.

It's real fun to bring up the Nazis, who persecuted Jews, Protestants, gypsies, Jehovah's Witnesses, homosexuals and numerous other minorities (Catholics escaped unscathed, for some reason!), but they did it for only 12 years, while the Catholic Church has persecuted (burned, dismembered, banished, etc.) minorities for almost 2000 years!

And they keep on persecuting in the few countries where they haven't yet (no fault of mine!) lost power, like Austria. You're right: atheism only implies militancy against religion for those atheists who are politically sophisticated and engaged. There are dumb atheists just like there are dumb Catholics who can't act in their interests.

Catholics, you see, like Muslims, don't get the idea that Protestants don't answer to a Pope or Supreme Imam. Protestants, like atheists, have no high priest or pope or imam separating them from God or Reason or Thinking for Themselves. No Protestant who runs for office or who serves as a Justice has to answer to a higher authority than his own conscience. Luther, Calvin, Billy Graham, Jerry Falwell and all the modern poseurs put together cannot excommunicate him.

I was freed from Catholic superstition when my own father was excommunicated, thank Darwin, and of course a Muslim risks death, not quite as bad as excommunication, by simply laughing at the wrong cartoon.

Before any Catholic accepts duty as a public servant, he needs to clearly state that he is willing to risk his immortal soul in performing his legal duties. JFK pretty much did. Ted Kennedy never did, and the jury is still out on Biden.

The fact that the Supreme Catholics don't "speak with one voice" has nothing to do with the price of cheese. The point is that each has compromised either his Catholicism or his public responsibility by taking office under false pretenses.

Posted by: Jimbino | Oct 8, 2009 7:26:54 PM

If a sign was erected on public land in a cemetery that said, "We honor all the brave soldiers who rest herein, although given that Jesus Christ is the way, the truth, and the light, we think the non-Christians among them will burn in Hell for eternity. Still, good job, everyone[,]" it would be quite clear that the sign honored all the war dead, Christian and non-Christian alike.

I agree with Paul that, even if this sign honors all the war dead, it would still violate the Establishment Clause. But does this sign really honor all the war dead? It might purport to do that, and it's authors might have thought so. But that can't be enough. Suppose the sign said, "We honor all the brave soldiers who rest herein, but we think our some of our non-Christians soldiers fought for silly (religious) reasons, believed in false gods, and died in a state of mortal sin." Maybe a sign like that is meant to honor those non-Christian soldiers, but it's still an insult to them. (Could a sign both honor and insult them?) Given the point of a war memorial, I think I'd say the same about the sign in Paul's hypothetical.

Posted by: Micah Schwartzman | Oct 8, 2009 6:30:19 PM

Point taken. I should have made clear that Scalia's discussion involved a hypo, not the actual display in question.

Posted by: Paul Horwitz | Oct 8, 2009 5:15:38 PM

Just a quick correction of fact - the cross doesn't appear in a cemetary. It appears in the middle of the Mohave Desert. To someone driving by, it is just a cross in the middle of a vast expanse of federal land.

Posted by: Anon | Oct 8, 2009 5:09:43 PM

Sorry to disagree with my sole commenter, but I take issue with pretty well all of this. I suppose I could ignore it on those grounds, but I don't want my silence to be taken as consent. First, I would have thought that if your analysis of Justice Scalia is right, he would be more rather than less aware of the specific symbolic significance of crosses and crucifixes. Second, having taught in Catholic institutions, I don't find the presence of Catholic symbols in a Catholic institution assaultive; they pretty well go with the territory, and I never felt either assaulted or unwelcome in their presence. Third, I don't think all atheists believe the cross represents the consummate evil in Western civilization. Some of them might just go with, say, the Nazi swastika. Disbelief in God is not, for all atheists, the equivalent of hostility to particular religions. Finally, I don't believe it is especially accurate to say we have appointed a "Roman Catholic SCOTUS." It is a Supreme Court with Catholics on it, but they hardly think as one or speak with one voice, whether as Catholics or as jurists.

Posted by: Paul Horwitz | Oct 8, 2009 5:07:06 PM

Scalia's view is very Catholic. To the Catholic, belief is nowhere as important as practice that involves icons, crucifixes, genuflecting, rosary fiddling, indulgences, and ceremonies like mass, communion, baptism (even of cars!), and funerals.

It is the Protestant and Atheist who take belief seriously. As Luther pointed out, you are "justified by faith" not by works. Protestants and Atheists, not to mention civil libertarians in general, view all icons like Moses viewed the Golden Calf and find themselves regularly assaulted in places like Catholic hospitals and schoolrooms around the world, where things like crucifixes hang over the door to your sickroom to remind you that you are a second-class citizen.

The idea that crucifixes and crosses can "represent" the militant atheist is as crazy as thinking that a chastity belt can represent the liberated woman, the noose the liberated Black or a beefsteak the vegetarian. To the atheist, the cross represents the consummate evil in the history of Western "Civilization."

We will reap what we have sown by having appointed a Roman Catholic SCOTUS.

Posted by: Jimbino | Oct 8, 2009 11:10:12 AM

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