Supreme Court overturns objection to war memorial cross on public land

[jimmy olsen]

Leave the WWI veterans alone. Fucking political correctness.

It actually is no longer used by WW1 veterans, and hasn't for a long time. The original cross and inscription are long gone. Now it is used for Sunday services, and is just a big ass cross sitting on public private land.

Of course, if you ask the park service if you can put up a giant Star of David on their private land the Federal government may have once owned , the answer will be "no" "of course."

Fixed.  The original idea (that the cross should be allowed on federal land) isn't supported by anyone involved in this any more, so that is a total red herring.

No fix necessary, since in fact plenty of people claim - even in this very thread - that they should just allow the cross on public land to begin with.

I would even agree with them - if in fact it is ok to just make this meaningless sale for strictly religious expression reasons, then they should just allow religious symbols on public land to begin with.

They should be able to, Christian Crosses, Jewish Stars, whatever.

The establishment clause as originally written was simply intended to prevent the establishment of a state church. The Court has grossly expanded the meaning of the amendment.

[Berkut]

snip of non-responsive quote

So I take it the answer is "no."

Oh yeah, the SC Justice stating specifically that the cross should stay because of reason that have NOTHING to do with the land swap is "non-responsive". Gotcha.

He isn't saying that the cross should stay on public land.  Which was, you know, the point I made, and the one you disputed.

No, you said that nobody was arguing that the cross should be allowed on public land, and I pointed out that he argued just that.

Which he did - his reasoning quoted has nothing to do with supporting the transfer of land at all. Granted, he is in fact also saying that the transfer is fine (since that is what the case is actually about) but his comments certainly go beyond that narrow point.

I take it you haven't actually read what Kennedy wrote, and are making assumptions about what he meant based on snippets and vague third-party assertions.  Given that i have read, and you haven't read, the opinion at hand, who do you think should be seen as most credible on the subject of whether Kennedy was arguing for retention of the cross on public land?

You asked for evidence that Kennedy thought that the cross on public land was fine. Or rather, you first started that nobody argued that it was ok (even though several people in this thread, even myself, have argued that it probably is), then asked for specifics.

Well, you have them. You're welcome.

[dps]

If you want to be impressive than list all 39 symbols without looking them up! 

Wow, there are some listed for religions I didn't even know existed.  The Atheist one is a bit bizarre-- is that some official symbol, or something some nerd just made up & submitted? 

And the Methodist one looks horrible-- I'd opt for the generic Christian one over that.

http://www.cem.va.gov/hm/hmemb.asp

Yeah, the Methodist flag, with the flame in color, looks OK, but in black and white it's awful, and is probably even worse sculpted.

On the other hand, the Lutheran one is dorky, and the Presbyterian one is just wierd.

I suspect that the atheist one is just something some individual made up--there are directions at the bottom for submitting requests for new symbols, and I suppose if someone submits for for a particular belief system, then it becomes the "official" symbol for such.

I'd never heard of some of these, either.  "Seicho-no-ie" must be some Indian faith--it's symbol even has a modified swastika. 

[grumbler]

But the injunctive language was broader, and apparently written to address this very kind of workaround.  It prohibited the government from "permitting the display" of the cross on Sunrise rock.  i.e. it seems to have specifically anticipated the possibility the government would transfer it to someone else on the understanding that they would maintain the display as before.

What the government probably should have done here is protest the breadth of the injunction in the first instance.   They could have asked for a rehearing, petitioned for a modification of the injunction or even asked for certiorari to the Supreme Court in the original case.  But one way or another they should have made a record that the injunction as written was overbroad and improper to the extent it would prevent a land transfer solution.

But that never happened.  The government let it go but then the other shoe dropped.

My 2c is that what is happening here is that the Court is bailing out the government for its procedural missteps in the underlying litigation.  Which might be OK were it not for the spectacle of the likes of Scalia and Thomas - so eager to find waiver of arguments and procedural defaults in other contexts - bending over backwards in this particular case.

I hadn't seen the implications of the "permitting the display on or near Sunrise Rock" wording, which is interesting.  The implication of the lower court ruling is that Mr. Buono isn't offended by the Federalness of the cross display, but the Sunrise Rockishness of it. 

Agree, though, that the Supremes could be simply covering the ass of the Feds who fucked up the original case, especially given that Congress had already spoken on the land transfer before Buono II was decided.

[grumbler]

No, you said that nobody was arguing that the cross should be allowed on public land, and I pointed out that he argued just that.

No, he is not argung that. Read the opinion.

Which he did - his reasoning quoted has nothing to do with supporting the transfer of land at all. Granted, he is in fact also saying that the transfer is fine (since that is what the case is actually about) but his comments certainly go beyond that narrow point.

His comments about the possible general purposes of flags had nothing specific to do with this case, either.  His point about crosses having many meanings was made in reference to the limit of the Circuit's reasoning, not this case per se.  In fact, he is noting what the Supremes need not consider in their case.

You asked for evidence that Kennedy thought that the cross on public land was fine. Or rather, you first started that nobody argued that it was ok (even though several people in this thread, even myself, have argued that it probably is), then asked for specifics.

I stated that no one in this case is arguing that the cross should be left on public land.  That statement was true.  Kennedy is not arguing that the cross should be left on public land.  He doesn't even use the term "public land" in the quotes which you allege are his arguments that the cross should be left on public land!

Well, you have them. You're welcome.

Stricken as non-responsive.

[DontSayBanana]

They should be able to, Christian Crosses, Jewish Stars, whatever.

The establishment clause as originally written was simply intended to prevent the establishment of a state church. The Court has grossly expanded the meaning of the amendment.

Except that the way it was "originally" worded also prevents going that route by specifically prohibiting the government from co-opting an existing church, and also prohibits displays of favoritism towards a specific religion. 

You've been in Korea too long, lad.  The Lemon Test is pretty broad, but based on logical extensions of the wording of the first amendment.

1) The government's action must have a secular legislative purpose.

A donation of land for a charitable purpose.  Courts take "charitable purpose" pretty seriously, and aren't too keen on reversing transfers of land that have been donated or exchanged for such a use.  Whether you like the part that's a cross or not, a war memorial is primarily secular in nature.

2) The government's action must not have the primary effect of either advancing or inhibiting religion.

The government took the only way out without violating this clause, as they saw it.  Letting the cross stay would have been advancing it, but upholding the injunction and forcing them to dismantle it could be seen as inhibiting it.  From the government's point of view, they could simply transfer the land and make it a non-issue; they just didn't realize the transfer itself would be seen as advancing religion, rather than trying to escape an entanglement with religion.

3) The government's action must not result in an "excessive government entanglement" with religion.

The injunction was more of an "excessive government entanglement" with religion.  Free exercise is pretty much the highest standard where religion in the first amendment is concerned, and the injunction didn't allow for acknowledgement of that.

[Razgovory]

How come there's not Catholic cross?  Berkut can have his shitty little A with an electron (what element is that suppose to be anyway?) Why can't there be a special Catholic cross?

[The Minsky Moment]

The establishment clause as originally written was simply intended to prevent the establishment of a state church.

That isn't what it says.

[Razgovory]

The establishment clause as originally written was simply intended to prevent the establishment of a state church.

That isn't what it says.

That's a good point.  The rest of the US should get to vote if we can throw them out on their asses.

[dps]

It is a case about the enforcement of pre-existing injunctions.

And, to Kennedy and others, whether blocking the sale of the land was merely enforcing an existing injunction, or (improperly, in the view of three of the majority), expanding it.

That was the argument of the 3. 
Let's say the injunction had barred the government from displaying the cross on federal land.  Then that argument would have been very strong.
But the injunctive language was broader, and apparently written to address this very kind of workaround.  It prohibited the government from "permitting the display" of the cross on Sunrise rock.  i.e. it seems to have specifically anticipated the possibility the government would transfer it to someone else on the understanding that they would maintain the display as before.

What the government probably should have done here is protest the breadth of the injunction in the first instance.   They could have asked for a rehearing, petitioned for a modification of the injunction or even asked for certiorari to the Supreme Court in the original case.  But one way or another they should have made a record that the injunction as written was overbroad and improper to the extent it would prevent a land transfer solution.

But that never happened.  The government let it go but then the other shoe dropped.

My 2c is that what is happening here is that the Court is bailing out the government for its procedural missteps in the underlying litigation.  Which might be OK were it not for the spectacle of the likes of Scalia and Thomas - so eager to find waiver of arguments and procedural defaults in other contexts - bending over backwards in this particular case. 

While I don't necessarily disagree with anything you've said in this post, I do have a question about the breadth of the injunction.  I agree that the government probably should have challanged it in the first place, but couldn't the injunction be taken as preventing the NPS or the executive branch in general from transferring the land as an administrative move, but NOT preventing Congress from acting to resolve the issue?  In fact, would an injunction that sought to prevent Congress from passing certain legislation be invalid on that point?  Certainly, an injunction can suspend legislation from being enforced pending resolution of challanges to its constitutionality, but can a court actually issue a valid injunction to keep Congress from considering or passing an act in the first place?  I would think not.  (And that may be part of the basis of some of the opinions in this case;  I haven't actually read them yet, just summaries.)

[The Minsky Moment]

The Court can't block the roll call vote, no.  It can block the Secretary of the Interior from actually effectuating the transfer of the land - in fact, that is exactly what the district court did.

[Jaron]

I believe this ruling is racist.