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Saturday, December 17, 2016

SALAZAR v. BUONO (Cross Case)

I said a lot about winter holiday display cases, including addendum, but since this is mostly my personal journal (even if a few come in weekly), will add some more here.

The basic comment here will be a case about an isolated cross put in place to honor WWI dead, which was one of the cases SG Kagan argued, and had procedural issues that Breyer at least thought was able to settle things. But, others did not, helping to lead to various concurring opinions and a principal dissent (Stevens, RBG, Sotomayor).  So, both the procedural and substantive issues were addressed. This is not the cross case discussed in the book God on Trial though that case too dragged on.

Justice Kennedy in his separate opinion (partial dissent) involving a holiday display in Allegheny suggested a permanent cross on top of a City Hall could be problematic.  OTOH, there are various other crosses that the Supreme Court today will think presumptuously acceptable, including large crosses put on the side of the road (flagged in Kennedy's plurality here) to honor the dead.  This would add to acceptance of a Ten Commandments display (outside of a school classroom and without illegitimate purpose). The isolated location of this cross also factored in.  So, as I noted last time, there is some balancing even here. 

The government here decided to end a dispute by transferring a government monument to private hands, but with certain conditions.  The net result as the dissent notes retains endorsement of religion since the legislation "designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land." The plurality remanded the case for further review -- the purpose here is to speak generally so I won't address that -- but to me made it fairly clear that it thought the whole thing was okay.  Again, the government is provided a suggestive path to follow to avoid court challenges, dealing with blatant endorsement concerns.

The case to me underlines the basic problem -- the point here is to honor war dead. That's great. But, HOW is it done here, with governmental endorsement?  A cross.  Compare to the practice in veteran cemeteries, including war dead overseas, where there is a chance to put a personal religious marker on the grave.  So, e.g., a cross, Jewish star or crescent.  And, I recall a reference to an attempt to add another symbol was rejected.  Justice Alito actually flagged this alternative, but argued it was likely that the challengers would not be satisfied.  Maybe so.

But, a sensible middle ground should not be decided on concerns that nothing will please everyone.  Scalia was annoyed during oral argument when it was suggested the cross didn't really honor Jewish war dead.  It is not that the cross isn't in some fashion inclusive there.  A person of some faith might pray for people of all faiths. The symbol here still is of a specific religion and it is telling that people are given a chance to put personal emblems on their own graves.  Congress here singled out a specific religion's symbol and rather uniquely -- there was but one other example cited of a national monument (of a priest holding a cross) with such a blatant religious symbol.*

It is not anti-religious to oppose this sort of specific religious favoritism.  Again, we are not opposing all religions from having a chance to add a religious aspect to their personal space.  And, a general display that is in some fashion governmental can have some sort of religious content. That isn't the point here. So, a memorial for the dead can have some sort of religious content (see also, comments before a legislative day, as long as it was open-ended, including humanist etc.). A few might find this troublesome, wishing a more complete separation of church and state, but as in the Town of Greece legislative prayer case, there is a narrower problem here.

There is a basic principle here that seems to me fairly easy to state and important as well.  On some level, like the National Day of Prayer (which honors a certain sort of religion), this case seems trivial.  On another however, it is not, and seems to me fairly gratuitous.  Finally, Justice Alito cites the basically unanimous legislative support of this move.  But, nearly all of the people involved are Christians, and the rest very well might not want to put themselves on record as against a cross honoring war dead.

A whole point of the religion clauses is to protect everyone against possible majoritarian pressures.  In other contexts, Alito worries about such things. Respect of religious freedom comes in various forms.


* A similar issue arose in the Ten Commandment displays cases in which Scalia argued various varieties (different sects use different language) basically interchangeable to recognize God's place in our society. I support the justices who opposed the monuments in general there as unconstitutionally sectarian and that underlines why.  A truly generic Ten Commandments monument (which very well still might be bad, but less so) would have no verbiage.

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