Supreme Court overturns objection to war memorial cross on public land

[Ed Anger]

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   MUSLIM (Islamic 5 Pointed Star)    Not shown because of copyrights

WTFOMGBBQ

[grumbler]

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

I skimmed through the opinions and couldn't find one of them saying this.  Can you give a more specific cite?

[Berkut]

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

I skimmed through the opinions and couldn't find one of them saying this.  Can you give a more specific cite?

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.
...

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."

The five most consistently conservative justices seem tolerant, based on  Wednesday's decision and past rulings, of religious symbols on public  land, but the court's four liberals seem deeply skeptical.

[grumbler]

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?

If all religions and non-religious groups had equal access to buying portions of the courthouse, and the money raised was more than the value of the courthouse itself (to sell for less would be making an accommodation), then, no, I don't think it would violate the Establishment Clause.  The Establishment Clause is, as the name suggest, a ban on the establishment of a religion or religions, not a ban on acknowledging their existence.

[grumbler]

snip of non-responsive quote

So I take it the answer is "no."

[Berkut]

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?

If all religions and non-religious groups had equal access to buying portions of the courthouse, and the money raised was more than the value of the courthouse itself (to sell for less would be making an accommodation), then, no, I don't think it would violate the Establishment Clause.  The Establishment Clause is, as the name suggest, a ban on the establishment of a religion or religions, not a ban on acknowledging their existence.

But of course in this case all religious and non-religious groups do not have said equal access.

Congress did not say "Hey, here is an acre of land for sale - everyone submit bids and we will sell it to the highest bidder!".  Rather they specifically transferred that specific land to a specific recipient for the sole purpose of making sure the cross could stay there, and dodge the court ruling that said it had to be removed.

[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.

[grumbler]

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.

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?

[grumbler]

Rather they specifically transferred that specific land to a specific recipient for the sole purpose of making sure the cross could stay there, and dodge the court ruling that said it had to be removed.

Yes, the Congress expressly permitted this resolution of this specific challenge to the Establishment Clause.  Nothing nefarious in allowing specific resolutions to specific problems.

[The Minsky Moment]

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?

You mention McCreary but recall that Van Orden was decided the same day.  Van Orden had very similar facts - a large Ten Commandments monument on state land - in that case on the grounds of the State Capitol building in Texas.  The swing vote in those cases was Justice Breyer, who agreed that the Kentuck monument was unconstitutional but the Texas monument was OK.  With respect to the latter, he emphasized the fact that the monument was placed by a private civic organization, that it stood for decades without challenge and that its setting, siting, and history were oriented towards conveying a general historical moral message rather than a particularized religious one.

A similar argument could be made in defense of this cross - it was erected by a private, secular civil organization; it stood for many years without challenge; and its setting, history and purpose are suggestive of a secular motive - commeration of fallen soldiers in a foreign war.   

And yet Justice Breyer dissented in this case.  And the reason, which is set forth in his brief and very lucid opinion is that this is not an Establishment Clause case properly speaking.  It is a case about the enforcement of pre-existing injunctions.

[Neil]

In fact, and I know this may come as a huge surprise to you - many religious people actually think that the State should not be playing favorites with religion! I know, crazy, isn't it?

Yes, I do think Berkut's insistence on absolute separation of church and state is crazy.   

FYP.

[grumbler]

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.

[The Minsky Moment]

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. 

[Neil]

Is it really that surprising though?  There is a public interest in smacking down the ACLU in this case, isn't there?

[Berkut]

Rather they specifically transferred that specific land to a specific recipient for the sole purpose of making sure the cross could stay there, and dodge the court ruling that said it had to be removed.

Yes, the Congress expressly permitted this resolution of this specific challenge to the Establishment Clause.  Nothing nefarious in allowing specific resolutions to specific problems.

But you just claimed that there would be nothing wrong as long as everyone had an equal shot at some potential chunk of government land. But as I pointed out, and you so carefully edited out, that did not happen - this was not Congress giving anyone interested a chance to buy up some land, but rather a gift to one and only one group - hence it violates the principle that you stated was the key to making it ok for the Federal government to hand land over to religious groups to put up crosses.