2009.10.08
Scalia and the cross
There was a lot of talk during the confirmation of new Supreme Court Justice Sonya Sotomayor about concerns that she would be unable to put aside her identity as a "wise Latina" to rule objectively and fairly on the law.
Yet it was another justice, Antonin Scalia, who seemed unable during recent oral arguments about a cross on public land to set aside his identity as a Christian and Roman Catholic to understand why a war memorial in the form of a cross might appear to some to honor only Christian soldiers.
In Slate, Dahlia Withlick notes the following exchange between Scalia and ACLU attorney Peter Eliasberg:
"The cross doesn't honor non-Christians who fought in the war?" Scalia asks, stunned.
"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," replies Eliasberg, whose father and grandfather are both Jewish war veterans.
"It's erected as a war memorial!" replies Scalia. "I assume it is erected in honor of all of the war dead. The cross is the most common symbol of … of … of the resting place of the dead."
Eliasberg dares to correct him: "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."
"I don't think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead," thunders Scalia. "I think that's an outrageous conclusion!"
As Withlick observes, Scalia doesn't appear to realize his own outrageous conclusion that "that religious symbols are not religious."
RSS feed 
Classic illustration of liberal pettiness. Here the government is set to turn socialist, taxes are set to go sky-high, and this administration seems oblivious about terrorism or national security, while the left's big concerns are that somebody might be praying at a football game, or terrorists might be treated harshly in prison, or somebody dared to honored soldiers with a "cross".
Comment by Suzie — October 8, 2009 @ 12:55 pm
How do we know that Antonin Scalia was "stunned"? Did he announce that he was stunned? Does Dahlia Withlick read minds?
How do we know that Antonin Scalia "thundered"? Did he announce that he was thundering? Does Dahlia Withlick read minds?
"Eliasberg dares to correct him" Is Eliasberg normally considered a coward? Is Elaisberg a poorly qualiifed lawyer? Are lawyers qualified to argue before the US Supreme Court afraid of Antonin Scalia?
How do we know that Antonin Scalia had an outrageous conclusion "religious symbols are not religious? In the quote the word religious is not used. Is this only part of the quote?
Also keep in mind the term cross is used by non Catholic Christians more than Catholics. Catholics tend to use the word crucifix, especially for public displays. The term cross is probably more appropriate in this case and being that Antonin Scalia was using the term cross instead of cucifix, it seems that he was setting aside his Roman Catholic faith in discussing this issue.
Comment by Patt — October 8, 2009 @ 1:06 pm
Since all buried in Arlington cemetary have crosses.
Only 2 things to do.
Take them down or dont allow jews or muslims.
I vote the latter.
Comment by HERB KREBS — October 8, 2009 @ 1:08 pm
Well yea know in a recent case about cruel and unusual punishment as far as the death penalty Scalia said in effect... Who said it wasnt supposed to hurt? This is the type of guy were dealing with.Thats why Im glad Obama is in..as these right wingers near retirement they can be replaced with someone of more intellectual thought
Comment by Jeffery — October 8, 2009 @ 1:22 pm
@Herb #2: Your antisemitism and bigotry aside, Herb, you are flat out wrong about what the burial sites look like in Arlington National Cemetery. From the Arlington National Cemetery site (emphasis added):
The government will provide at no cost to the estate of the deceased an upright, white marble headstone or white niche cover. The cemetery staff at Arlington will place the order, which goes to the National Cemetery Administration, part of the Department of Veterans Affairs. The order for the headstone or niche cover will include the appropriate inscription and choice of faith emblems.
You can view the 39 permissible emblems. It even includes a pentacle for pagans and a symbol for atheists.
Comment by C. Trejbal — October 8, 2009 @ 1:25 pm
First, it is not meant to be, and I do not believe that it is, offensive to anyone. The cross was erected as a war memorial to the dead, in a predominantly Christian country. It is not meant to exclude anyone.
Second, it doesn't violate the First Amendment. It just does not.
Third, some folks need to quit making a federal case out of every little thing. How petty can the ACLU be?
Comment by Glen Franklin Koontz — October 8, 2009 @ 1:30 pm
Jeffrey:
Is not punishment supposed to be painful? If it were pleasurable, everyone would be a criminal.
Comment by Glen Franklin Koontz — October 8, 2009 @ 1:31 pm
Can't they just look at it like X'es just 'mark the spot' ??
Comment by Marked Man (Mark) — October 8, 2009 @ 1:34 pm
@Patt #2: "Also keep in mind the term cross is used by non Catholic Christians more than Catholics. Catholics tend to use the word crucifix, especially for public displays. The term cross is probably more appropriate in this case and being that Antonin Scalia was using the term cross instead of cucifix, it seems that he was setting aside his Roman Catholic faith in discussing this issue."
Actually, Patt, in my own Catholic upbringing, cross was usually used when speaking of a bare cross, like this monument. Crucifix was used when a figure of Jesus was present on the cross. Your evidence, therefore, is less than compelling.
Clearly, Scalia brought Christian and Catholic preconceptions to his notion that "[t]he cross is the most common symbol of … of … of the resting place of the dead." Clearly, he was unable to look beyond those preconceptions or set them aside. And clearly he was attempting to draw the outrageous conclusion that a religious symbol (the cross) was somehow not religious in this context.
Comment by Dan Radmacher — October 8, 2009 @ 1:34 pm
When you visit an American cemetery overseas, as I have, it is a scene of row upon row of crosses with a star of David now and then. A cross, by default, honors the vast majority of US war dead. On the flip side, what other symbol would be universally recognized and thus be an appropriate replacement for a cross? The movement to extract religious belief from our government is one of the most insidious. According to our founding fathers, and their natural rights ancestors, all of our rights are God given as we have been endowed by our creator with rights otherwise you must succumb to the tyrant who can assert whatever rule he wants by force (ie divine right of kings, dictatorship of the proletariat, etc.). It is not our Constitution that gives us rights, that document is a contract with government to grant limited rights to those that manage the nation on our behalf. We have rights because God created us with them (please note: creation occurs before birth - a subtlety some liberals have chosen to overlook).
Comment by Jim W — October 8, 2009 @ 1:34 pm
@GFK #6: "Second, it doesn't violate the First Amendment. It just does not."
I bow to such obviously superior argumentation. Who can argue with that? You just can't. I bet Eliasberg is relieved he wasn't facing you before the Supreme Court.
Comment by Dan Radmacher — October 8, 2009 @ 1:36 pm
Dan Radmacher:
I am glad to see you coming around to my way of thinking. It takes time, but eventually, I persuade all.
And Mr. Eliasberg should be relieved that I do not sit on the Supreme Court. I do not suffer fools lightly in my firm, and I sure would not were I a judge/justice.
Comment by Glen Franklin Koontz — October 8, 2009 @ 1:45 pm
And I guess the liberals are going to want to redesign the Distinguish Service Cross medals in each branch of the military? And dig out the crosses at Normandy? The cross is the highest distinction of honor for Americans. Look at what the pathetic leftwing is attempting to argue here: That Americans are divisive and incohesive. Next, they'll be arguing for allowing turbans and earrings.
Comment by Jim — October 8, 2009 @ 2:15 pm
The cross in question does not violate the 1st amendment because it was erected by citizens, not the government. Constitutional ammendments don't restrict citizen rights, they restrict government action and interference with citizen rights. In this case the government is infringing on the rights of citizens to honor war dead with a cross by covering the cross. If someone feels put out that there isn't a cresent or a star of David, they let them follow the same procedure as the original pettitioners and request that their symbol be added. That the original judge couldn't figure this out, after legal training (?), is mind numbing. It's like the knuckleheaded school officials that tell kids they cannot pray in school - they have no power to do that and it is in fact unconstitutional for them to infringe upon the kids rights by assert that judgement (if it is not inappropriate for other reasons, ie during the middle of a class or whatever). What ever happened to reason and common sense?
Comment by Jim W — October 8, 2009 @ 2:15 pm
When did Antonin Scalia say that the cross is the most common symbol of the resting place of the dead? Adding a new element to the argument?
Since the cross is solely associated with a religious demomination, it is a more generic symbol of religion than a crucifix, Star David, ect. I think the fact the arugment is over a cross versus a cruciifx is signifcant in that the government is not establishing a specific religion: Baptist, Mormon, ect: crosses are used by almost all Christian churches. No one has to join or support any church and if this cross is bothering people, put up a Star David or whatever.
Getting back to the main point of this article, there seems to be anti Catholic Bigotry towards Antonin Scalia judging from the comments in the article: "thundered", "stunned" were assumed but never proven. The fact that some one had to dare to answer him indicates that he is an unreasonable person or Eiliasberg is generally timid.
Dan, since you were (are?) a Catholic, do you see the bigotry of the politically correct crowd (athiests, homosexuals, secularists,ect) towards Christians as any kind of a problem?
Comment by Patt — October 8, 2009 @ 2:20 pm
@Jim W. #14: "If someone feels put out that there isn't a cresent or a star of David, they let them follow the same procedure as the original pettitioners and request that their symbol be added."
My understanding is that just such a request was made - and refused.
Comment by Dan Radmacher — October 8, 2009 @ 2:22 pm
@Patt #15: "When did Antonin Scalia say that the cross is the most common symbol of the resting place of the dead? Adding a new element to the argument?"
Um, Patt, did you read the original post? Or the cited Salon piece? Or the comment you were responding to? All contain the quote from Scalia saying "The cross is the most common symbol of … of … of the resting place of the dead."
@Patt: "Since the cross is solely associated with a religious demomination, it is a more generic symbol of religion than a crucifix, Star David, ect."
It is not a generic symbol of religion at all, Patt. It is a specific and unique symbol of one major branch of religion: Christianity.
@Patt: "Dan, since you were (are?) a Catholic, do you see the bigotry of the politically correct crowd (athiests, homosexuals, secularists,ect) towards Christians as any kind of a problem?"
Not at all. First of all, I detect little anti-Christian bigotry. Most of what is counted as such is a reaction to Christians forgetting, as you did above, that their religion is but one of many. Second, Christians so outnumber their "assailants" that there seems minimal chance of any actual repression resulting from what little anti-Christian sentiment actually does exist.
Comment by Dan Radmacher — October 8, 2009 @ 2:27 pm
There is actually much anti-Christian sentiment, mostly from the government and the Left. But I repeat myself.
Jim W.'s points were well taken. And it should also be noted how far the courts have moved from the First Amendment's plain meaning. This silly fiction of church/state separation is just that; fiction. It has no constitutional grounding (the words are not in there), and it contradicts our history. The First Amendment was intended to protect the Church and its adherents, not cleanse government of all religious influence and references. After the Constitution's ratification, there were state established churches (the Congregationalists in Rhode Island, the Anglicans in Virginia, and others). None of these state established churches were reconstituted on First Amendment or "separation of church and state grounds".
Scalia is right. The cross should stay.
Comment by Glen Franklin Koontz — October 8, 2009 @ 2:36 pm
@17 "It is not a generic symbol of religion at all, Patt. It is a specific and unique symbol of one major branch of religion: Christianity"
Well... thats not entirely true...
http://en.wikipedia.org/wiki/Cross
"The cross is one of the most ancient human symbols, and is used by many religions, such as Christianity. It is frequently a representation of the division of the world into four elements (Chevalier, 1997) (or cardinal points), or alternately as the union of the concepts of divinity, the vertical line, and the world, the horizontal line (Koch, 1955)."
http://en.wikipedia.org/wiki/St._Brigid%27s_Cross
http://en.wikipedia.org/wiki/Red_Cross_(symbol)
http://en.wikipedia.org/wiki/Sun_cross
etc etc
Comment by Marked Man (Mark) — October 8, 2009 @ 2:48 pm
Dan #16 - if the request was refused, then that refusal might well have been unconstitutional. My expectation would be that the same knucklehead that covered the cross lead to the decision to prevent other religious symbols from being installed. Government treading on the rights of the people by asserting a “right” to control them. The cross was in place for about 70 years before somebody got offended enough to cherry pick a pliant judge. Now we have lots of judges who like to insert their views into our lives and lots of petty tyrants who seek them out to do what mischief they can. Do you think that if we put the placement of this cross to a vote in a general election that outcome would be to remove it? Not likely. Who cares if a few judges (or their handlers) have their panties in a twist? So, it's on government land (ie the People's land) and the majority have no issue. Case closed.
Comment by Jim W — October 8, 2009 @ 2:53 pm
This is really pushing an issue to the extreme limit. You know, there are other uniquely Christian symbols besides the cross. How many "fish" emblems do you see on the back of cars? Do you know where that came from?
It came from ancient Christians who, when conversing with an unknown other "Christian" would take their foot and draw an oblong semi-circle in the dirt. If the other person completed it, it insured that they too were a Christian. If they did not it meant they were a Roman impostor and the person should not share they they were a Christian with that person.
The symbol of a dove has also been associated with Christ.
The pentagram has been associated as a symbol of the devil.
Are we going to take and outlaw all of these common and every day symbols from every inch of government owned land? Does the fact that a cross adorns a piece of publicly owned land mean that Christianity is being "established" as a religion by the government? That may be a reach.
As far as this bigotry and anti-semitism goes, isn't that being applied in reverse against Christians?
Ask any holocaust surivivor how thankful they were and are for all of the Christians who laid down their lives to liberate them from the death camps. Ask them if they thought it could have happened without Christian sacrifice.
With the issues facing this country right now, I have a hard time swallowing that this made it to the Supreme Court.
Comment by Bob H — October 8, 2009 @ 3:32 pm
I detect a great deal of Catholic bigotry in the article and by many in the media towards practicing Catholics such as Antonin Scalia. This short snippet of an article uses inflammatory language: stunned and thundered: and indicates that he not a intelligent and object judge strictly on the basis of his Catholic beliefs.
What does the relative numbers of a group of people have to do with whether or not bigotry exists? By your logic since, blacks outnumbered whites in South Africa, whites could not have been bigoted?
The cross is not exclusive to a specific religious group. The 1st Amendment was written to stop an estblishment of any specific demonation: Baptist, Catholic,ect as in the European style of the time.
Comment by Patt — October 8, 2009 @ 3:33 pm
Glen #18:
" And it should also be noted how far the courts have moved from the First Amendment's plain meaning. This silly fiction of church/state separation is just that; fiction. It has no constitutional grounding (the words are not in there), and it contradicts our history. The First Amendment was intended to protect the Church and its adherents, not cleanse government of all religious influence and references. After the Constitution's ratification, there were state established churches (the Congregationalists in Rhode Island, the Anglicans in Virginia, and others). None of these state established churches were reconstituted on First Amendment or "separation of church and state grounds"."
I think this comment illustrates an important and disturbing interpretation of the Establishment Clause and Free Exercise Clause. First, that there is no constitutional grounding is completely false: the concept of state/church separation, also called Secularism, was advanced by Francis Bacon and many other Enlightenment thinkers; Madison, the author of the Constitution and its Bill of Rights, explained in many letters ""total separation of the church from the state" (1819 letter to Robert Walsh), "perfect separation between the ecclesiastical and civil matters" (1822 letter to Livingston), "line of separation between the rights of religion and the civil authority... entire abstinence of the government" (1832 letter Rev. Adams), and "practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States" (1811 letter to Baptist Churches)."
Second, you say that the Amendment was meant to protect "the Church and its adherants;" essentially meaning that the Christian Church will be protected from Government control (thus, you believe it does not apply to all religions). This, of course, is the disturbing part of your comment. There is no mention of Christianity in the Constitution. Despite how much you want to believe that the United States was founded By Christians and For Christians, screw everyone else, you are wrong. The amendment is intended to keep government out of religious matters, and that works the other way too: if government must stay out of religious matters, it follows that religion must not be in government.
Comment by WPGHSC — October 8, 2009 @ 4:23 pm
WPGHSC:
First, I did not mean the "Christian" Church in my comments. I meant the Church, generally, which at the time would have included Christians and Jews. But of course, today, my comments would also include other religions. It would not include Wiccans, Pagans, and atheists, as I do not see how they could fall within the First Amendment's parameters, OTHER THAN the Congress could not pass a law requiring their adherence to, or support of, a particular religion.
Second, the First Amendment did not contemplate a "separation of church and state" as I have already explained. The language is quite clear, "Congress shall pass no law respecting an establishment of religion . . . ." It means simply that Congress cannot pass a law establishing the American equivalent of the Church of England.
It does not mean that there cannot be creches on town hall lawns, or "God" on our money, or that the President cannot take the oath of office on the Bible, or that the Supreme Court cannot open its session with a prayer, or attend the Red Mass. It was NEVER intended to erase God [the Christian God, in order to be clear] from the public square.
Comment by Glen Franklin Koontz — October 8, 2009 @ 4:34 pm
GFK
Why not Wiccans and Pagans? The Constitution makes no mention of Christianity and there's plenty of court rulings that specifically designate Wicca as a religious entity. You may personally disagree that these particular groups constitute religious groups, but that's not what our courts have ruled. If you want that creche on the town hall lawn, you then you should be equally prepared to have a Wiccan solstice display or a Festivus tree right next to it.
Turns out our government has a pretty broad definition of what constitutes a religion:
"To be a bona fide religious belief entitled to protection under either the First Amendment or Title VII, a belief must be sincerely held, and within the believer's own scheme of things religious."
(USCA Const. Amend 1: Civil Rights Act 1964 701 et seq., 717 as amended 42 USCA 2000-16)
Now...how in the world does your logic include atheism as a religion to exclude from constitutional protection?
Comment by Mike Scott — October 8, 2009 @ 5:51 pm
Wicca, paganism and atheism are not religions, no matter what definition is contained in the U.S. Code. They may come within the definition, but that does not make them a religion; though I would agree that the official "religion" of the Left is atheism.
Comment by Glen Franklin Koontz — October 8, 2009 @ 6:28 pm
It always amuses me to see the media argue against free speech.
Comment by Henry — October 8, 2009 @ 10:19 pm
Dan @ 17;
"Second, Christians so outnumber their "assailants" that there seems minimal chance of any actual repression resulting from what little anti-Christian sentiment actually does exist."
With this you seem to be arguing that bigoted thought is okay as long the stereotypes are held by a minority. Is that really what you believe, or is it just a convenient defense to hypocritical and largely untenable position? "Hate is okay as long you only hate groups bigger than yours." It's an interesting position. One that is sure to lead too much progress in the area of race and minority relations. Way to go Dan. Keep fighting the good fight.
Comment by Another Chris — October 9, 2009 @ 12:46 am
AC, you are twisting my words. I never said anti-Christian bigotry, or any other kind was okay. I said I didn't see it as a big problem to be concerned about because it is extremely rare and because Christians are such a majority in this nation they do not need to worry about repression.
That is not the same, by a long shot, as endorsing bigoted thought.
Comment by Dan Radmacher — October 9, 2009 @ 7:19 am
I am profoundly shocked that such a smart man as Antonin Scalia was so clearly blinded by his faith that he didn't pursue law or reason in his questioning. To insist that a cross is some universal symbol of the resting place of the dead is ... well, dead wrong.
Personally, I don't care. As a citizen, I could see how a Jew or Muslim, Native American, Sikh, etc., might have the idea that the symbol didn't represent any of their deceased servicefolk. And that's what the issue ought to be decided on.
And that's why we have such a hard time sometimes with the First Amendment. It says we may speak freely and be as religious or as non-religious as we want. But it say that our government cannot make religious edicts or pronouncements on behalf of its citizens.
It's a tough argument to convincingly win ... but Scalia? Dude, what are you doing up there, kneeling at an altar or sitting in your Associate Justice chair?
Comment by Saintbridge — October 9, 2009 @ 7:39 am
GFC@26
I keep forgetting that you must have access or subscribe to some other set of common court rulings that exist in a separate universe which are apparently not accessible to those of us with common Web searching tools.
I can only wonder how this works out for you clients in court, where I assume judges are reading the law that's been established in this country.
In some instances you use God's Law to justify your points of view and in others it's just your opinion. Let me get this right? Virginia's ancient and absurd sodomy laws fit with God's law, so those laws are good. The US Code with defines religion, doesn't fit with God's Law, so that particual law doesn't matter. Atheism, whose adherents make no religious claims, and have no religious beliefs, and that don't benefit legally from any religious status, are a religion because..... umm.... ????
Comment by Mike Scott — October 9, 2009 @ 9:13 am
With Dan's group size argument, keep in mind that when the National Socialist Worker's Party (NAZIs) started in 1919 with 20 or 25 members, they were outnumbered by each of the various groups: Jews, Communists, Jehovah's Witnesses, Gypsies, ect: that they later perscuted. Would Dan would have been one those people who the NAZIs would never do any real damage so just ignore them? For that matter, I doubt the KKK ever out numbered the Africans or Catholics in this country: possibly they out numbered Asians, Native Americans, or Jews; does that mean they did not cause damage to Africans or Catholics?
One other about this cross, it is not on federal land. The ownership of the very small plot of land was transferred to a private party. It was originally on private property, the federal government took over the land and now transferred part of it back to private ownership. It can be seen from federal land, so I guess the goal is to keep religious symbols invisible from the public land.
Comment by Patt — October 9, 2009 @ 9:14 am