U.S. Supreme Court
A ‘Visibly Angry’ Justice Scalia Ponders ‘Some Conglomerate of a Cross’
Posted Oct 8, 2009 7:41 AM CST
By Debra Cassens Weiss
Civil procedure questions dominated most of the oral arguments Wednesday in a challenge to the placement of a cross to honor the war dead in the Mojave National Preserve, but that doesn’t mean fireworks were absent from the debate.
Justice Antonin Scalia provided the drama in an exchange with Peter Eliasberg, a lawyer with the American Civil Liberties Union Foundation of Southern California. The National Law Journal highlighted the disagreement with this headline: “At High Court, Cross Words Over Mojave Memorial.” A New York Times account said Scalia grew “visibly angry,” while the Washington Post called the exchange of words “testy.”
The dispute began when Eliasberg said Jewish war veterans would not want to be honored by a cross. Scalia disagreed. “What would you have them erect?” Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”
Eliasberg said Jewish cemeteries he has visited don’t have crosses. Courtroom spectators laughed, but Scalia didn’t join in. "I don't think you can leap from that to the conclusion that the only war dead that cross honors are the Christian war dead,” Scalia said. “I think that's an outrageous conclusion."
Earlier, Justice Stephen G. Breyer acknowledged that "Procedurally, this is a little boring," according to The BLT: The Blog of Legal Times.
Among the questions considered Wednesday in Salazar v. Buono: Does a retired employee of the National Park Service have standing to sue over the cross? And did Congress succeed in bypassing the establishment clause dispute by transferring the land to private ownership?
The BLT noted the procedural questions. “For much of the hour, you might have been forgiven if you thought you were back in civil procedure class,” the blog said. According to the BLT, the arguments made clear that the government didn’t appeal the standing issue, making it unlikely the case will be decided on that ground.
After the arguments, the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called Scalia's cross comments "shocking" and "outrageous," the Los Angeles Times reports.
Article corrected at 6 a.m. on Oct. 9 to reflect that the "boring" comment was made by Justice Stephen G. Breyer.
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Comments
Time
Oct 8, 2009 7:56 AM CST
How clueless can Scalia be?
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Anon
Oct 8, 2009 8:12 AM CST
It just goes to show that IQ bears no relationship to common sense.
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AndytheLawyer
Oct 8, 2009 8:20 AM CST
The best response to Scalia’s “what would you have them erect” question would have been: “I would have them erect a flagpole on which the American flag , the symbol of the nation for which they died, would proudly fly—and not any symbol of any religion.”
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Mohammed
Oct 8, 2009 8:27 AM CST
The cross while it reflects Christianity is the universal symbol of sacrifice when you see it on a memorial or in a cemetry. It means that someone gave their life for a cause.
Only athiests seem to not get this. Perhaps it is due to their hatred of religion or an inferority complex that they suffer from.
Muslims, Jews, Hinuds, Christians have no problem with a cross as a symbol of personal sacrifice on a war memorial.
Get over your hatred of religion. When you see the cemetary at the beaches of Normandy, I don’t see Christian symbols. I see crosses representing the sacrifice of our fallen america, british and candians hero’s.
Would a muslim like to see the crescant star or a jew a different symbol - of course. However, the cross to all the world is a symbol of sacrifice when placed on a war memorial. We know it has nothing to do with religion.
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Jess
Oct 8, 2009 8:37 AM CST
The cross is only representative of sacrifice to those who believe Jesus died upon it for world’s sins. For those who don’t ascribe to such beliefs, it’s the same as placing a noose or an electric chair on a grave.
Your assertion that the cross is somehow universal in it’s symbolism is arrogant.
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Claudia
Oct 8, 2009 9:58 AM CST
I agree with Scalia. The suit is just wasting the Court’s time, self-seeking and not really about the core issue: the desire to honor veterans with a widely accepted symbol of sacrifice and loss, a cross. Also, with the majoritiy of the lost soldiers haing been Christians who fought Hitler (who honored pagan religions) , why is the cross so feared and hated? The cross means something extra to Christians but it is also a general symbol. A symbol per Jung, for ex., is not like a mathematical equation, but something “suggestive” of a content. So, the cross may suggest death, loss, sacrifice, and also suggest (to Christians), the sacrifice of Jesus, along with other content. Maybe Scalia is tired of the pettiness of the argument.
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Tim
Oct 8, 2009 10:17 AM CST
@5 - you are so right. lol The cross only has one meaning and that is for the neocon right wing christians to piss off athiests by displaying it.
While you are at it, can you sue the red cross because when they show up for disaster relief, they are realy crusaders coming to shove jesus down your throat. Not to help with disaster relief. How arrogrant that they would show up at your house after a natural disaster with such an evil symbol.
Oh can we take the snake and pole off all the EMS trucks too. I mean we don’t want any other bible reference on those while we are at it.
Give me a break.
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LizM
Oct 8, 2009 10:19 AM CST
You see crosses and Christian symbols on Normandy because it was only recently that we have begun to acknowledge the diversity of belief by Americans and American soldiers, not because the Jewish, Muslim, Hindu, atheist, etc. soldiers chose that to be their memorial.
I’m not sure the cross should be taken down. It’s use as a symbol does have a place in our nation’s history. But to say that other faiths have no problem with its use is arrogant and shows an utter lack of understanding of faiths other than Christianity.
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fed up
Oct 8, 2009 10:33 AM CST
On the battlefields where these soldiers served, the most appreciated cross was that worn by the corpsman or medic, on an armband or helmet, or displayed on the side of an ambulance, or imprinted on medical and surgical supplies. The medical cross sometimes served as a “time out”, and only the most despicable enemy would target the medic and wounded soldiers. So the cross has symbolism other than merely religious.
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Barry Silberg
Oct 8, 2009 10:46 AM CST
To the Romans the crucifix would be a Jew being tortured to death. You can categorize or symbolize the icon any way you choose, but that is what it is. Justice Scalia can obviously only see it from the prospective of his religious tunnel vision.
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JAL
Oct 8, 2009 10:52 AM CST
Religious folks are funny, no one seems to think that erecting a large pentagram to honor the fallen is a good idea. Why should we pick and choose between what religious symbols we think are acceptable and inoffensive. Guess that is why the founding fathers decided to keep religion and government apart.
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Paul N.
Oct 8, 2009 11:10 AM CST
“The cross has symbolism other than merely religious” only to Christians. Indeed, Justice Brewer wrote: “this is a Christian nation.” Church of Holy Trinity v. United States, 143 U.S. 457, 471 (1892), cited by Justice Brennan, dissenting in Lynch v. Donnelly, 465 U.S. at 717-718 (1984).
To test the theory that a cross is acceptable, I suggest that we replace crosses at one-third of all public locations where one currently is with a six-pointed star, and at another third with a half moon and a star. A six-pointed star is not necessarily a “Star of David;” it is used in other contexts. Moons and stars are used all over the place, planetariums, for example. What do you think would be the reaction of Christians? If there were no reaction, no lawsuits filed, perhaps Justice Scalia is correct. But if the idea of a six-pointed star or a moon and a star doesn’t “sit right” with Christians, you would know he was wrong, and you would understand how Jews feel about the erection of crosses on public lands.
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Time
Oct 8, 2009 11:20 AM CST
#9: You are not suggesting, are you, that the cross in this case was erected to designate that place as some sort of neutral medical facility?
The whole point, indeed, the only point, in erecting that cross was to invoke a particular religious feeling in those that saw it. It was put up because of its religious significance, nothing else.
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JD
Oct 8, 2009 11:33 AM CST
This is a Christian country founded on Christian principles. We all enjoy our freedoms because of these principles, not in spite of them. It is unfortunate that so much ground was ceded to those seeking to “separate” church and state. Freedom of relgion means you are free to practice whatever religion you like, it was never intended to prevent our government from reflecting the Christian principles our country was founded on. As I have heard pointed out many times, would you who advocate the removal of Christian symbols be as agitated by hearing a Muslim prayer at a soccer match in a Muslim country? No, you would expect it.
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Robert Tice
Oct 8, 2009 11:39 AM CST
The ACLU has turned into an anti-Christian, secular, anti-religious pack of bigots. The argument that this cross coerces any citizen to assume a state religion is disingenuous and transparently intolerant. The anti-Christian comments posted above demonstrate ignorance of the faith and the symbolic cross. Unlike other religions, the cross symbolizes ultimate sacrifice and substitution. There is not a more fitting symbol for a fallen soldier. I will be ashamed of this court if it cannot understand the obvious.
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Susan
Oct 8, 2009 12:18 PM CST
Only in America is the cross is now a symbol of hate that must be replaced by something else.
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B. McLeod
Oct 8, 2009 12:24 PM CST
Just as a point of fact, it bears mention that the Normandy American Cemetery and Memorial does also have graves marked with the Star of David, for Jewish soldiers who were buried there.
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Barry Silberg
Oct 8, 2009 12:31 PM CST
The founding fathers of our country were religious but not necessarily Christian. I suggest you read Thomas Jefferson. Some of the bloodiest events in history have been done in the name of Christianity by “Christian Nations”. Hate parades as love, forgiveness devolves into blame. Our country is more religious and tolerant because the government stays out of it. I have witnessed more empty churches in Europe, with all its roadside icons, than in America. There will always be those who must constantly bolster their own religious doubts by foisting their symbols on the passers by.
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Troy R.
Oct 8, 2009 1:24 PM CST
I’m glad that I am agnostic.
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Kelev
Oct 8, 2009 1:51 PM CST
#4 Mohammed,
I don’t see the cross as anything universal except that of persecution. As a Jew though, I have no problem with a veteran erecting a cross on public lands.
#14 JD. If this is a “christian country”, WHY is Jesus, Christ, trinity, Yashua, never once ever mentioned in The Founding Documents?
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Moo
Oct 8, 2009 1:55 PM CST
This reminds of the Roper v. Simmons oral argument where Scalia stated that the opposite of “mitigating” was “not mitigating”, rather than “aggravating” as more sane people would think.
Silly me.
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Kelev
Oct 8, 2009 2:02 PM CST
Paul N. See Page 143 U. S. 471 “***unofficial declarations*** to the mass of organic utterances that this is a Christian nation.”
Sorry… I don’t see this as a “Chistian nation” can you give something with a little more meat to it?
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Bean Counter
Oct 8, 2009 2:05 PM CST
Of course, a cross is a “universal” symbol as in Red Cross that is why there is also Red Crescent. Wait a minute!
While I understand many posters’ comments above, but “a symbol of sacrifice when you see it on a memorial or in a cemetry” will have to be “some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star.”
And don’t forget about those Buddhists, Wicca, Scientologists, and fellowers of the Church of the Flying Spaghetti Monster out there.
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Steve
Oct 8, 2009 2:40 PM CST
#20 - Is the persecution you are referring to the murder of Jesus by the Jews? Or is it some other persecution?
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Jason
Oct 8, 2009 2:47 PM CST
The Nation’s history is replete with examples of acknowledgment of religious belief in the public sector. Our religious heritage is manifested in many ways that openly reflect government sponsorship and yet do not create an “establishment” problem. The employment of congressional Chaplains to offer daily prayers in the Congress is a practice that has spanned two centuries. The government has recognized as national holidays days with undeniable religious significance, such as Christmas and Thanksgiving. “In God we trust” is statutorily prescribed as our national motto to be inscribed on our currency. The language “one nation under God” is included as part of the Pledge of Allegiance to the American flag. Congress has directed the President to proclaim a National Day of Prayer each year. It is the current practice in every federal court to open proceedings with an announcement that concludes, “God save the United States and this Honorable court.” A portrayal of the Ten Commandments decorates the courtroom of the United States Supreme Court, directly above the bench where the Honorable Justices are seated. As Justice Douglas observed, it is only through this accommodation that government can “follow the best of our traditions” and “respect the religious nature of our people.” Zorach v. Clauson, 343 U.S. 306, 314 (1952).
In 1892, the Supreme Court stated that “this is a religious nation.” Church of the Holy Trinity v. United States, 143 U.S. 457, 470 (1892). The Court has discussed the historical role of religion in our society and concluded that “[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” Lynch v. Donnelly, 465 U.S. 668, 674 (1984). In Abington v. Schempp, 374 U.S. 203, 212 (1963), the Court recognized that “religion has been closely identified with our history and government.” Such recognition is nowhere more affirmatively expressed than in Zorach where the Court stated that “[w]e are a religious people whose institutions presuppose a Supreme Being.” 343 U.S. at 313. Nevertheless, this country has witnessed a long struggle over governmental acknowledgments of the religious identity of the people of the United States.
http://www.aclj.org/Issues/Issue.aspx?ID=9
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Pedro
Oct 8, 2009 3:28 PM CST
If we have no religious symbols, that means the government has endorsed athiests and agnostics as the official religion of the US.Therefore, does a lack of religious symbols violate the seperation of church and state clause because it is an implicit endorsement of the Church of Athiesm and their creed?
I think we need to start suing every city that has no religious symbols as a violation of our rights. I feel threatened and intimidated when I walk in an athiest court or athiest government building and I see no symbols which to me is clearly a reference to the no god of athiesim.
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T.R.
Oct 8, 2009 3:39 PM CST
@26, Pedro,
Agnosticism is not a religion. You are free to praise your fantasy man in the sky all you’d like. But where the people’s business is concerned, let’s leave the self-loathing, passive-aggressive imaginary avatars at the door in favor of reason, rationality, and logic. In that way, the state can fairly represent the real-world interests of all people, regardless of what “faiths” those various individuals may bemoan.
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Barry Silberg
Oct 8, 2009 3:49 PM CST
One of the reasons our country is so great is because tribal differences between our diverse population have been blurred. Religious rituals and symbols are actually manifestations of our tribal nature. Go to Croatia and see hatred of the Serbs who are genetically identical but practice different rituals of their Christian faith. Go to Northern Ireland and see centuries of hatred among Christians with different rituals. It has been a long time since the KKK marched with their crosses and hoods in Washington. Freedom of religion can only be truly free if it is free from government endorsement. We are certainly a religious nation and it is precisely because the government, with its awesome power, stays out of recognizing any particular religion that we remain great.
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AndytheLawyer
Oct 8, 2009 3:56 PM CST
JD—Like it or not, this is not a Christian nation founded on Christian principles. It is a nation founded by Deists and Freemasons which has a lot of Christians living in it.
If you want to live in a Christian nation, move to the United Kingdom or the Vatican City, each of which has a state Christian religion.
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Barry Silberg
Oct 8, 2009 3:59 PM CST
And now we are in a war where Muslims are killing each other because of differences in ritual that are endorsed by governments. Most Americans, including our political leaders, don’t even understand the difference. The post by #26 represents such an ignorant argument.
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Paul the Magyar
Oct 8, 2009 4:15 PM CST
It is true that the cross has become a NEAR-universal symbol of sacrifice when you see it on a memorial or in a cemetry. But we have the Red Crescent in Muslim countries precisely because of its close association with Christianity. In Arlington cemetary, the stones are uniformly shaped but are not shaped as crosses. Instead, there is a place on the stone for any one of a number of symbols of different faiths—many of which are non-Christian.
Atheists understand symbolism as well as people of various faiths. What non-Christians and atheists agree on is that, since religious symbols tend to divide us, and we are a country united, we expect and should use secular symbols in public monuments—secular symbols which unite us rather than divide us.
This country is most certainly NOT a Christian nation. While many of us are Christians, we are a secular society with respect for all faiths and with secular protections for all faiths. Our country, our charter, our laws do not recognize that Christianity as a whole—or any one or even several of the various competing and conflicting versions of Christianity—is special or should be accorded special status.
The fact that atheists and non-Christians are openly criticized and villified here merely verifies that some Christians must tyrannize the minority in order to validate their beliefs. This is, of course, the same behavior which apalls us when we see it displayed against non-Muslims in the Arab world.
It is not too much to ask that our secular society remain faith-blind.
Much like the issue of school prayer, those who would impose their religious views on others assume that they will always be in the majority. But if our government were to defer to a dominant religion, and one were to move to Utah, the prayer might be a Mormon prayer. In some neighborhoods of New York the prayer would be a Hebrew prayer. In other neighborhoods, school prayer would mean kneeling and facing Mecca.
In our culture, Christianity is dominant—but rather than the humility and tolerance called for by Jesus, His followers (even among lawyers) display intolerance, arrogance and incivility.
Shameful, really.
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Paul the Magyar
Oct 8, 2009 4:22 PM CST
“Oh can we take the snake and pole off all the EMS trucks too.”
The cadeuces is certainly NOT a Christian symbol. It is, instead, either the staff of Hermes or the staff of Asclepius.
Its modern, secular meaning, is what makes it an effective symbol which transcends cultures. As far as I am aware, no one is currently worshiping ancient Roman or Greek deities.
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Paul the Magyar
Oct 8, 2009 4:26 PM CST
And, while this country is a religious nation, we do not endorse any particular religion. The most that can be said of America is that we are a deist nation—recognizing some deity or deities without specifying which one or ones..
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Barry Silberg
Oct 8, 2009 4:40 PM CST
Can this commentary be sent to Justice Scalia, or are we just a “fart in a windstorm”?
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Bean Counter
Oct 8, 2009 5:36 PM CST
I would like to comment that Andy @3 has the best response to Scalia’s question.
Pedro @26, please take a minute to look up the word religion. Just stating a non-religion is a religion does not make it so (this is not Alice in Wonderland). Perhaps, you would understand it better taking a LSAT approach, a non-white color is any color but white.
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Ty Clevenger
Oct 8, 2009 6:41 PM CST
Any crackpot can wear the title “Reverend.” Barry Lynn is living proof.
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stepheng
Oct 8, 2009 10:08 PM CST
Is it just me or does Scalia, J. seems generally pissed off to varying degrees most of the time?
This whole embroilgo reminds me of a 3d year law school seminar on education law (taught by a Jesuit lawyer-law professor-text book author) wherein several students were droning on about how “offensive” Christmas images are to non-Christians”, whereupon I lost it and declared that all public places should have a Christmas tree displayed with a Star of David on top. (The Jesuit started trying so hard not to laugh tears rolled down his cheeks.)
Unwittingly, I was channeling Scalia (who knew!), although in my defense it was 3 weeks from graduation and half in the bag.
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Paul in CT
Oct 9, 2009 5:03 AM CST
Scalia is showing his religio-centrism. In his world, a cross represents all religions. Never mind that Jews, Muslims aetheists and others find a cross a symbol of christianity (remember Christ was crucified on one?). It is absurd to suggest that a memorial for all dead should have a cross and that a cross would provide solace to all religions.
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Me
Oct 9, 2009 5:32 AM CST
“The cross while it reflects Christianity is the universal symbol of sacrifice when you see it on a memorial….”
No. Most of the world recognizes two sticks tied together as just that.
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me
Oct 9, 2009 5:35 AM CST
The swastika is widely recognized as a (Buddhist) symbol of peace. I say we put erect large marble swastikas in our war memorials.
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Bush One
Oct 9, 2009 5:40 AM CST
Mohammed @#4: Get over your hatred of spell check.
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Bush One
Oct 9, 2009 5:45 AM CST
Troy R. @#19: Are you sure?
Get it?
HAHA, I’m on fire today.
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Samantha M
Oct 9, 2009 6:23 AM CST
Barry Silberg, I’d say God Bless You, but some people here wouldn’t get the irony. You are the only sensible commenter here. I’ve been droning on for years about tribal tendencies within humans and most folks just look at me like I’m nuts. I also believe that most folks - including the lawyers posting here - haven’t read the original documents of Madison, Jefferson, etc. regarding the establishment clause. Doing so would enlighten the argument substantially from the knee-jerk polar positioning we have going on here. Isn’t that our essential calling as lawyers?
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Robert
Oct 9, 2009 6:44 AM CST
For people who are presumably other lawyers, a surprising number of these comments are little but illogical statements, non sequiturs, and vitriolic insults that make no point at all. Embarrassing.
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silencedogood
Oct 9, 2009 6:51 AM CST
@10 Actually, Barry the Romans tortured indiscriminately with crosses. Nero burned hundreds of Christians alive on crosses to light up night time games in the coliseum. 1,000 years is a long time to oppress the various sects, ethnicities, etc. Everyone got their turn.
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LOL
Oct 9, 2009 6:55 AM CST
Bush One: thanks for the laugh. Obviously, it was needed.
In re the cross - here’s an idea: leave religious symbols in places of worship and not in national parks. I am sure the scorpions and mountain goats are offended, too, by the structure. :)
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Donald
Oct 9, 2009 6:56 AM CST
I concur with 44. It seems everyone brought their personal baggage in for this one and won’t let go of it.
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ali
Oct 9, 2009 6:56 AM CST
Comment removed by moderator.
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Jenny
Oct 9, 2009 7:01 AM CST
Atheism is a religion
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Steve
Oct 9, 2009 7:12 AM CST
@ “Oh can we take the snake and pole off all the EMS trucks too.”
The cadeuces is certainly NOT a Christian symbol.
if you look up where it came from and how it originated you will clearly see that is in reference the talmud, old testimant story in the bible where if the people of israel looked to the serpant on the cross, they would be healed. it is a religious symbol.
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