Supreme Court overturns objection to war memorial cross on public land

[grumbler]

I al always pleased when Berkut (or Martinus for that matter) gets all riled up about the evils of religion.   

I am always pleased when the religious right wingers jump in to make ad hominims. 

[Barrister]

I al always pleased when Berkut (or Martinus for that matter) gets all riled up about the evils of religion.   

I am always pleased when the religious right wingers jump in to make ad hominims. 

We both win then! 

[grumbler]

Yes, I do think the American insistence on absolute separation of church and state is crazy.   

Generally, the religious fundamentalists are even funnier (as in this case) when they employ strawman arguments than when they employ ad hom arguments. 

[derspiess]

My point is accepted by the USSC, though, so presumably there is some basis for it.

Dang, good job on that.  How'd you manage to persuade them?

[Berkut]

The fact that the "swap" had no *other* benefit beyond letting people have their giant cross on public land is plenty of evidence for me.

No one has a cross on public land.

My assertion is the same as that used by the ACLU, and held up by a lower court. Presumably there is some kind of basis for it.

I cannot understand how your assertion forms the basis for the ACLU complaint, nor the basis under which some lower courts ruled that the land swap was somehow unconstitutional.  They are not arguing your argument (that the Federal government cannot sell land to anyone who might use it for purposes other than those allowed to the federal government itself),

Not my argument at all - that is your strawman argument you created for me. Now, you will of course argue that that is not the case, and that it is my argument, so let me short-circuit that claim as well, and state, unequivocally, that my argument is in fact the same argument put forth by the ACLU - that the land swap does not in fact solve the establishment problem, and simply creates a new one instead.

You asked what the problem was with the land swap resolution, and my response was to quote the ACLU lawyer. I think that makes it pretty clear that I am arguing the same thing he is, despite how you might wish to re-write it.

My point is accepted by the USSC, though, so presumably there is some basis for it.

Fair enough - but then, I never made any claim that your point has no basis for it. I just don't agree that your point is more compelling than the mine (and the ACLUs, for that matter).

Of course, you have ended with the USSC on your side, so that probably trumps my authoritative appeal, but I will note that it is a 5-4 decision on what appears to be pretty political lines with what looks to me very muddled justification. So I am guessing it isn't much of a slam dunk either way.

[grumbler]

But the issue is not about land value, so whether the public loses value or not is immaterial. Indeed, I don't think the cross lowers the land value to begin with.

It is all about the swap.  Land value is not immaterial, as the government giving away land of greater value than it got would, indeed, be making an accommodation to a religion, whereas a value-neutral swap (or profitable one) would not be.

The issue is whether the state should allow religious symbols on public land, or more generally, whether allowing religious symbols on public land violates the provisions against the state "establishing" religion.

Nope.  The land isn't public land.  No one in this case is arguing the cross should be allowed on public land.

If in fact it is the case that allowing this cross on public land is tantamount to an establishment of religion such that it is in fact a violation, the government selling/giving away/swapping the land for the purpose of allowing the cross to stay where it should never have been placed to begin with is also a violation of that clause, since it has the identical practical effect.

Mere argument by assertion.  If a cross isn't allowed on public land, and a cross exists, then either the cross must be destroyed or the land must cease to be public.  In either case, there is no cross on public land, and so no establishment Clause violation.

[Berkut]

If in fact it is the case that allowing this cross on public land is tantamount to an establishment of religion such that it is in fact a violation, the government selling/giving away/swapping the land for the purpose of allowing the cross to stay where it should never have been placed to begin with is also a violation of that clause, since it has the identical practical effect.

Mere argument by assertion.  If a cross isn't allowed on public land, and a cross exists, then either the cross must be destroyed or the land must cease to be public.  In either case, there is no cross on public land, and so no establishment Clause violation.

This is as much assertion as my own, except weaker since it makes no real sense. The establishment clause is not limited to crosses on public land.

You can certainly violate the establishment clause without there being a cross on public land - like selling or giving away (or swapping) land for the purpose of placing (or maintaining) crosses on it. It has the exact same problems that allowing crosses on public land has to begin with, that of the state showing favoritism towards particular religions, which presumably violates the free exercise of religion established by the Second Amendment.

Now, one can argue that selling land to religious groups so they can place their religious symbols on otherwise public land is NOT a violation of the Establishment clause...but then, you can (and people have and are in this very thread) also argue that placing the cross on public land is not a violation either.

And in fact one of the USSC Justices you cite for your support is in fact making exactly that argument - that the cross should be allowed on public land, and the swap was entirely unnecessary.

[grumbler]

Berkut, let me know when you actually have an argument you will stand behind.  This changing of positions (and referring to my references to your previous positions as "strawmen") makes discussion with you pointless (i merely reference your now-apparently-discarded argument that "the government cannot sell land if the purpose of the sale is to allow the land to be used for something that has already been determined to be unconstitutional for the state to do itself" and you start claiming "strawman!").

If your argument is the mere assertion, as the ACLU asserts, that the land swap does not solve the Establishment Clause issue because the land swap does not solve the Establishment Clause issue, then we have nothing to discuss - it is a tautology.

If you actually want to formulate and articulate a position that does not depend on tautologies or now-discarded positions, by all means do so.

[Berkut]

But the issue is not about land value, so whether the public loses value or not is immaterial. Indeed, I don't think the cross lowers the land value to begin with.

It is all about the swap.  Land value is not immaterial, as the government giving away land of greater value than it got would, indeed, be making an accommodation to a religion, whereas a value-neutral swap (or profitable one) would not be.

I don't think this is the case. The government is certainly making an accommodation to a religion in this case - there is no way they make this "swap" other than to appease the religious who want that cross there.

The issue is whether the state should allow religious symbols on public land, or more generally, whether allowing religious symbols on public land violates the provisions against the state "establishing" religion.

Nope.  The land isn't public land.  No one in this case is arguing the cross should be allowed on public land.

Actually, that isn't true.

The bottom line, Justice Anthony M. Kennedy wrote, is that "the Constitution does not oblige government to avoid any public acknowledgment of religion's role in society." Although joined in full only by Chief Justice John G. Roberts Jr., Kennedy's opinion will be closely parsed as courts across the country consider challenges to religious displays in public settings.

But it is a narrow ruling, offering less guidance for the future than a stark acknowledgment of the fundamental differences between the court's most consistent conservatives and its liberals in drawing the line between government accommodation of religion versus an endorsement of religion.

To Kennedy, the cross "is not merely a reaffirmation of Christian beliefs" but a symbol "often used to honor and respect" heroism.

He added: "Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

One of the SC justices is arguing that the cross should be allowed on public land.

[Strix]

Good point.  While we're at it, I think we need to go remove all those crosses on headstones at Arlington Cemetery, so that they won't make you feel uncomfortable.

This would be at the Arlington Cemetary where families of fallen soldiers can choose between 39 different religious symbols, right?

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

[Faeelin]

Anyway, I'm trying to square the argument that the violation of the Establishment Clause has been severed by transferring the land to cure the defect.

Let's take, say, Mcreary, the case in Kentucky where putting the Ten Commandments in a courthouse was found to violate the Establishment Clause.  A lot of people seem to be saying if the government got fair market value for selling or leasing that part of the courthouse sto a group that wanted the Commandments up, there would be no violation of the Establishment Clause. Thiss seems like it shreds the entire purpose, no?

[Berkut]

Anyway, I'm trying to square the argument that the violation of the Esatblishment Clause has been severed by transferring the land to cure teh defect.

Let's take, say, Mcreary, the case in Kentucky where putting the Ten Commandments in a courthouse was found to violate the Establishment Clause.  A lot of people seem to be saying if the government got fair market value for selling or leasing that part of the courthouse sto a group that wanted the Commandments up, there would be no violation of the Establishment Clause. Thiss seems like it shreds the entire purpose, no?

Exactly my point. If putting them there is a violation, then certainly changing the legal definition of the piece of land while the practical effect (ie whatever harm is actually done by them being there) remains completely unchanged can hardly resolve it. Unless there was no harm done by it to begin with.

[derspiess]

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

[Berkut]

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? 

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

WTF is that?

I would ask for the Darwin Fish.

[derspiess]

I would ask for the Darwin Fish.

I'm sure you could have one glued on.  Plus a "COEXIST" & rainbow bumper sticker while you're at it