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The Establishment clause was never intended to be used this way. <_<

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/28/AR2010042801949.html

QuoteSupreme Court overturns objection to cross on public land

By Robert Barnes
Washington Post Staff Writer
Thursday, April 29, 2010

A splintered Supreme Court displayed its deep divisions over the separation of church and state Wednesday, with the court's prevailing conservatives signaling a broader openness to the idea that the Constitution does not require the removal of religious symbols from public land.

A 5 to 4 decision by the court overturns a federal judge's objection to a white cross erected more than 75 years ago on a stretch of the Mojave Desert to honor the dead of World War I.

Six justices explained their reasoning in writing, often using stirring rhetoric or emotional images of sacrifice and faith to describe how religion can both honor the nation's dead and divide a pluralistic nation.

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."

Dissenting Justice John Paul Stevens said: "The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith."

Still, despite stirring rhetoric in Kennedy's opinion, the decision did little to clarify the court's murky jurisprudence about how government can accommodate religious symbols without violating the Constitution's prohibition on the endorsement of religion. It seems likely that once the legal battles are over, the 6 1/2 -foot cross standing atop an outcropping called Sunrise Rock will remain, although that was not settled by the decision.

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. The lineup does not bode well for other challenges to religious symbols, such as San Diego's 29-foot cross and war memorial on Mount Soledad.

But even the five who agreed Wednesday to return the case to lower courts split three ways in their reasoning.
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"To date, the court's jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules," Kennedy wrote.

The court battle began when Frank Buono, a former employee in the 1.6 million-acre Mojave National Preserve, objected to the cross being on a plot of public land. Federal courts in California agreed the display was unconstitutional. But after an outcry from veterans groups, Congress forbade removal of the cross. It declared the site a national monument and engineered a plan to swap the land on which the cross was bolted for a piece of private land nearby so that the cross was no longer on public property.

The courts objected to that as well. But it was a mistake, Kennedy wrote, to dismiss Congress's intent in the land swap as "illicit." His opinion returns the case to the lower court, with a strong nudge to approve it.

"The land-transfer statute embodies Congress's legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views," he wrote.

Justice Samuel A. Alito Jr. would have gone further than Kennedy and Roberts and held that the land swap was lawful and that there is no need to send the case back to the lower court.

Justices Antonin Scalia and Clarence Thomas went along with only the outcome of the case. They said they thought that Buono should not have been allowed to challenge the congressional action and did not endorse Kennedy's reasoning.

The court's liberal wing dissented.

"I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message," wrote Stevens, who was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Justice Stephen G. Breyer dissented for other reasons.

The cross was originally erected at Sunrise Rock by a group of World War I veterans who used to gather at the spot socially. It has been replaced several times, most recently in 1998 by Henry Sandoz, who with his wife, Wanda, maintains what is now a 6 1/2 -foot cross built of metal pipes.

As a result of the court battles, the cross is covered with a plywood box.

Both sides of the dispute noted the inconclusiveness of the decision. "It's a win, but it's a win in a battle, not the decisive victory we might have hoped for," said Hiram Sasser, a lawyer at the Liberty Institute, which represented the Sandozes. "I told Henry that the plywood will eventually come down, but it's going to take a while."

Peter Eliasberg, managing attorney for the American Civil Liberties Union of Southern California, which represented Buono, said that the fight will be uphill but that it is not over.

"We will continue to argue that the land transfer did not remedy the violation of the establishment clause," Eliasberg said. "The cross is unquestionably a sectarian symbol, and it is wrong for the government to make such a deliberate effort to maintain it as a national memorial."
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The case is Salazar v. Buono.

I agree it is a sectarian symbol and marginize all the men that fought for America during WW1 and that werent christians.

Question is, how many non-christians served with the US Army in WW1?

If the number is zero, which I know is not since a sizable number of joos served in that war, would it be ok to maintain the site?

One other question: Why is that site so remarcable? Why does it havve to be exactly there? Can that cross be removed and placed in a private monument remembering christian cassualties in WW1? I see nothing wrong with private monuments.

Quote from: Siege on April 29, 2010, 08:36:52 AM
One other question: Why is that site so remarcable? Why does it havve to be exactly there? Can that cross be removed and placed in a private monument remembering christian cassualties in WW1? I see nothing wrong with private monuments.

The plot of land was swapped with another so that it is on private land.  It is the swap that is being challenged.   I am not sure why anyone would have a problem with resolving the original dispute by making the land swap.

Quote from: Siege on April 29, 2010, 08:36:52 AM
I agree it is a sectarian symbol and marginize all the men that fought for America during WW1 and that werent christians.

Question is, how many non-christians served with the US Army in WW1?

If the number is zero, which I know is not since a sizable number of joos served in that war, would it be ok to maintain the site?

One other question: Why is that site so remarcable? Why does it havve to be exactly there? Can that cross be removed and placed in a private monument remembering christian cassualties in WW1? I see nothing wrong with private monuments.

Because it is very important that we continue to make sure that non-Christian Americans understand that they aren't *really* Americans. This is Christian nation, founded on Christian values, but Christians, for Christians. Very tolerant Christians, of course.

I like the Justice who pointed out that parking a big ass cross on a memorial site is reminiscent of all the crosses on the graves of soldiers around the world. I guess the Stars of David on the graves of Jewish soldiers do not warrant any notice. Or whatever symbols non-Christian soldiers have on their graves. If we don't put up crosses at memorial sites, why, the people the site is memorializing will be forgotten!

We need some crosses at the Wall, for example - otherwise, nobody will remember all those men who died and for whom we built the Wall to remember them by.

Quote from: grumbler on April 29, 2010, 09:27:08 AM

Quote from: Siege on April 29, 2010, 08:36:52 AM
One other question: Why is that site so remarcable? Why does it havve to be exactly there? Can that cross be removed and placed in a private monument remembering christian cassualties in WW1? I see nothing wrong with private monuments.

The plot of land was swapped with another so that it is on private land.  It is the swap that is being challenged.   I am not sure why anyone would have a problem with resolving the original dispute by making the land swap.

Because it is a transparent attempt to get around the Establishment clause.

Quote
"We will continue to argue that the land transfer did not remedy the violation of the establishment clause," Eliasberg said. "The cross is unquestionably a sectarian symbol, and it is wrong for the government to make such a deliberate effort to maintain it as a national memorial."

He is right.

Quote from: Berkut on April 29, 2010, 09:31:14 AM
...but[t] Christians...

I think the Bible said this is wrong.

Quote from: grumbler on April 29, 2010, 09:27:08 AM

Quote from: Siege on April 29, 2010, 08:36:52 AM
One other question: Why is that site so remarcable? Why does it havve to be exactly there? Can that cross be removed and placed in a private monument remembering christian cassualties in WW1? I see nothing wrong with private monuments.

The plot of land was swapped with another so that it is on private land.  It is the swap that is being challenged.   I am not sure why anyone would have a problem with resolving the original dispute by making the land swap.

See Berkut, et al.

Who the fuck cares about a cross in the middle of a desert?

Fundamentalists, is the obvious answer. The cross is obviously just another excuse to make their voices heard.

Quote from: Slargos on April 29, 2010, 09:44:48 AM
See Berkut, et al.

Who the fuck cares about a cross in the middle of a desert?

Fundamentalists, is the obvious answer. The cross is obviously just another excuse to make their voices heard.

No, the obvious answer are some frothing at the mouth liberals. The cross has been there for 75+ years. Anyone truly offended by it has moved on or gotten over it.

Too bad for any non-Christians that feel left out. They can create their own memorials.

Quote from: Berkut on April 29, 2010, 09:31:14 AM
We need some crosses at the Wall, for example - otherwise, nobody will remember all those men who died and for whom we built the Wall to remember them by.

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.

Quote from: Berkut on April 29, 2010, 09:33:23 AM
Because it is a transparent attempt to get around the Establishment clause.

"Get around" the establishment clause?  It doesn't try to "get around" the establishment clause, it gets rid of its applicability.

Quote

Quote"We will continue to argue that the land transfer did not remedy the violation of the establishment clause," Eliasberg said. "The cross is unquestionably a sectarian symbol, and it is wrong for the government to make such a deliberate effort to maintain it as a national memorial."

He is right.

He is wrong, because the establishment clause does not apply to private land.  If the cross isn't federally funded or on federal land (neither of which are true of the cross post-transfer), then the constitution simply does not apply.

Leave the WWI veterans alone. Fucking political correctness.

Quote from: Strix on April 29, 2010, 09:55:10 AM
Too bad for any non-Christians that feel left out. They can create their own memorials.

...which inevitably some Christian will come along and erect a giant cross on.

Quote from: grumbler on April 29, 2010, 09:57:59 AM

Quote from: Berkut on April 29, 2010, 09:33:23 AM
Because it is a transparent attempt to get around the Establishment clause.

"Get around" the establishment clause?  It doesn't try to "get around" the establishment clause, it gets rid of its applicability.

Quote

Quote"We will continue to argue that the land transfer did not remedy the violation of the establishment clause," Eliasberg said. "The cross is unquestionably a sectarian symbol, and it is wrong for the government to make such a deliberate effort to maintain it as a national memorial."

He is right.

He is wrong, because the establishment clause does not apply to private land.  If the cross isn't federally funded or on federal land (neither of which are true of the cross post-transfer), then the constitution simply does not apply.

So you would be ok with the Federal government selling a plot of land on the Mall to some private church so they can erect some gigantic cross on it?

I don't buy the idea that you can get around the Establishment clause simply by selling off custom fitted chunks of public land to private individuals so they can do what presumably is not Constitutional to do otherwise.

Quote from: derspiess on April 29, 2010, 09:57:17 AM

Quote from: Berkut on April 29, 2010, 09:31:14 AM
We need some crosses at the Wall, for example - otherwise, nobody will remember all those men who died and for whom we built the Wall to remember them by.

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.

\

Not at all - those are crosses that mark individual graves of individual people, and they can certainly choose to have a religious symbol as their grave marker, even if that symbol is on public land.

This is a total red herring - nobody has made any such claim, and it is obviously completely spurious.

Quote from: Strix on April 29, 2010, 09:55:10 AM

Quote from: Slargos on April 29, 2010, 09:44:48 AM
See Berkut, et al.

Who the fuck cares about a cross in the middle of a desert?

Fundamentalists, is the obvious answer. The cross is obviously just another excuse to make their voices heard.

No, the obvious answer are some frothing at the mouth liberals. The cross has been there for 75+ years. Anyone truly offended by it has moved on or gotten over it.

Too bad for any non-Christians that feel left out. They can create their own memorials.

Athesitards can be fundamentalists aswell.  ;)

Quote from: Grey Fox on April 29, 2010, 10:04:39 AM
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 land.

Of course, if you ask the park service if you can put up a giant Star of David on their land, the answer will be "no".

Quote from: Berkut on April 29, 2010, 10:34:57 AM

Quote from: Grey Fox on April 29, 2010, 10:04:39 AM
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 land.

Of course, if you ask the park service if you can put up a giant Star of David on their land, the answer will be "no".

Then, I don't understand whats wrong with the swap.

Quote from: Grey Fox on April 29, 2010, 10:39:19 AM

Quote from: Berkut on April 29, 2010, 10:34:57 AM

Quote from: Grey Fox on April 29, 2010, 10:04:39 AM
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 land.

Of course, if you ask the park service if you can put up a giant Star of David on their land, the answer will be "no".

Then, I don't understand whats wrong with the swap.

IMO, the problem with the swap is that it is a blatant attempt to simply get around the Constitutional issue. If you cannot put sectarian symbols up on public lands, and there is some good reason for this, simply waving a wand and calling the land no longer public while changing absolutely nothing else means there probably should not be such a restriction to begin with, and you should just allow religious symbols on public land to begin with.

Presumably, if allowing crosses on public land is a violation of the Establishment Clause, then selling land specifically for the purpose of putting up religious symbols on them is also a violation. It is a pointless distinction if in fact you can just establish government favoritism of some particular faith by means of simply swapping land for the purpose of some religious expression, but not others.

This is especially true when in fact you are swapping land to protect a religious symbol that has *already* been defined as being in violation.

Will the park service agree to land swaps for any other religious symbols people want to prop up on public land?

Here is what the "WW1 Memorial" looks like, btw:
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fwww.nationalparkstraveler.com%2Ffiles%2Fstoryphotos%2FMOJA-Sunrise_Rock_Cross.jpg&hash=9dac20aba1ace482eb282234751a58e61f4b9b0d)

I see the point.

That cross is so offensive...

I just can't believe that the multitudes of people who drive by there every day have to view such an egregious display of our National Religion.

Quote from: Berkut on April 29, 2010, 10:28:58 AM
So you would be ok with the Federal government selling a plot of land on the Mall to some private church so they can erect some gigantic cross on it? 

For enough money (say, a trillion dollars)?  You betcha!  Wouldn't you?

QuoteI don't buy the idea that you can get around the Establishment clause simply by selling off custom fitted chunks of public land to private individuals so they can do what presumably is not Constitutional to do otherwise.

So the government cannot sell land if the land will be used for purposes (e.g. setting up a local grocery store) that the Federal government lacks the Constitutional power to do itself? I don't buy that at all.

Quote from: Berkut on April 29, 2010, 10:27:00 AM

Quote from: Strix on April 29, 2010, 09:55:10 AM
Too bad for any non-Christians that feel left out. They can create their own memorials.

...which inevitably some Christian will come along and erect a giant cross on.

Perhaps I miss understand you?

So, now you are arguing that non-Christians should have a right to exclusivity when creating memorials such as this one i.e. a monument to an event that effected a variety of religions and cultures?

I am fine with the cross. If someone wants to add a Star of David to it for Jewish veterans of WWI than I would be fine with that as well. You make a false argument that the Star of David would be rejected because if the cross is allowed than it's very unlikely a lower court would go against the Supreme Court and not allow it.

Quote from: Berkut on April 29, 2010, 10:34:57 AM

Quote from: Grey Fox on April 29, 2010, 10:04:39 AM
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.

QuoteOf 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.

Quote from: grumbler on April 29, 2010, 11:15:30 AM

Quote from: Berkut on April 29, 2010, 10:28:58 AM
So you would be ok with the Federal government selling a plot of land on the Mall to some private church so they can erect some gigantic cross on it? 

For enough money (say, a trillion dollars)?  You betcha!  Wouldn't you?

Nope. Of course, in this case, the price was basically zero dollars. But the price isn't really the point, except that it illustrates that the reason for the swap was not any desire by the government to make some money - simply a means to avoid a Court ruling they did not like, praise Jesus.

Quote

QuoteI don't buy the idea that you can get around the Establishment clause simply by selling off custom fitted chunks of public land to private individuals so they can do what presumably is not Constitutional to do otherwise.

So the government cannot sell land if the land will be used for purposes (e.g. setting up a local grocery store) that the Federal government lacks the Constitutional power to do itself? I don't buy that at all.

No, 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.

Otherwise, there is no practical purpose to the ruling to begin with, and they should just allow it. Having public land with a cross on it is no worse than having public land surrounding a section of "private" land that was sold so that someone could have a religious symbol on public land.

Quote from: Berkut on April 29, 2010, 10:47:39 AM
IMO, the problem with the swap is that it is a blatant attempt to simply get around the Constitutional issue. If you cannot put sectarian symbols up on public lands, and there is some good reason for this, simply waving a wand and calling the land no longer public while changing absolutely nothing else means there probably should not be such a restriction to begin with, and you should just allow religious symbols on public land to begin with.

Wow, this is slippery-slopism at its worst! :bleeding:

Your conclusion does not follow from your premise at all.  What can be done on Federal property and what can be done on private property are different things, as Federal powers are limited to those articulated, while private powers are unlimited except where exceptions are articulated

QuotePresumably, if allowing crosses on public land is a violation of the Establishment Clause, then selling land specifically for the purpose of putting up religious symbols on them is also a violation.

This is an assumption, not a presumption.

QuoteIt is a pointless distinction if in fact you can just establish government favoritism of some particular faith by means of simply swapping land for the purpose of some religious expression, but not others.

In what cases of other religions has the federal government not offered to resolve Establishment Clause controversies by a land swap?  You cannot argue favoritism without evidence of, you know, actual favoritism.

QuoteThis is especially true when in fact you are swapping land to protect a religious symbol that has *already* been defined as being in violation.

Actually, it is less true where a long-standing memorial has recently been challenged successfully, and the land swap will end the Establishment Clause controversy with no value being lost to either side.

QuoteWill the park service agree to land swaps for any other religious symbols people want to prop up on public land?

If the deal is good enough, I hope so!

Quote from: Strix on April 29, 2010, 11:18:57 AM

Quote from: Berkut on April 29, 2010, 10:27:00 AM

Quote from: Strix on April 29, 2010, 09:55:10 AM
Too bad for any non-Christians that feel left out. They can create their own memorials.

...which inevitably some Christian will come along and erect a giant cross on.

Perhaps I miss understand you?

So, now you are arguing that non-Christians should have a right to exclusivity when creating memorials such as this one i.e. a monument to an event that effected a variety of religions and cultures?

Of course not. But there is nothing inherently religious about a memorial to WW1 victims, and you don't need to put up a giant 7 foot cross that, by the way, says nothing about WW1, veterans, wars, memorials, or anything else. It is just a big cross sitting there.

So no - I don't think you can avoid Establishment issues by calling your religious symbols a "memorial".

Quote
I am fine with the cross.

Of course you are. Most people are perfectly fine with it.

Quote
If someone wants to add a Star of David to it for Jewish veterans of WWI than I would be fine with that as well.

Nope, can't do it - National Park Service won't allow it.

Quote
You make a false argument that the Star of David would be rejected because if the cross is allowed than it's very unlikely a lower court would go against the Supreme Court and not allow it.

Actually, no, someone asked to place a Buddhist shrine near there, and it was not allowed, because the NPS said religious symbols on public land was a no-no. It was the NPS, btw, that also decided that this cross was not really a WW1 memorial, and should be removed.

Then Congress got involved.

The principle of not having religious symbols on federal property is a sound one, if you hate Christianity. But I suspect the idea was to prevent overt displays of Christianity on public buildings. Bitching about a cross in a desert just makes you come across like a huge dick.

Quote from: grumbler on April 29, 2010, 11:26:25 AM

Quote from: Berkut on April 29, 2010, 10:47:39 AM
IMO, the problem with the swap is that it is a blatant attempt to simply get around the Constitutional issue. If you cannot put sectarian symbols up on public lands, and there is some good reason for this, simply waving a wand and calling the land no longer public while changing absolutely nothing else means there probably should not be such a restriction to begin with, and you should just allow religious symbols on public land to begin with.

Wow, this is slippery-slopism at its worst! :bleeding:

Your conclusion does not follow from your premise at all.  What can be done on Federal property and what can be done on private property are different things, as Federal powers are limited to those articulated, while private powers are unlimited except where exceptions are articulated

QuotePresumably, if allowing crosses on public land is a violation of the Establishment Clause, then selling land specifically for the purpose of putting up religious symbols on them is also a violation.

This is an assumption, not a presumption.

QuoteIt is a pointless distinction if in fact you can just establish government favoritism of some particular faith by means of simply swapping land for the purpose of some religious expression, but not others.

In what cases of other religions has the federal government not offered to resolve Establishment Clause controversies by a land swap?  You cannot argue favoritism without evidence of, you know, actual favoritism.

QuoteThis is especially true when in fact you are swapping land to protect a religious symbol that has *already* been defined as being in violation.

Actually, it is less true where a long-standing memorial has recently been challenged successfully, and the land swap will end the Establishment Clause controversy with no value being lost to either side.

QuoteWill the park service agree to land swaps for any other religious symbols people want to prop up on public land?

If the deal is good enough, I hope so!

Shrug. The deal in this case was not "good enough" and in fact the deal was nothing - a swap of meaningless land somewhere for an acre where the cross sits. The deal was not about "good enough" the deal was about allowing a big cross to sit in the middle of public land.

If it is ok for the government to allow the same practical thing (a big cross on public land) by simply deciding that the land is now not public, then they should just allow the cross on public land to begin with - clearly there is no practical difference, therefore there is no practical impact to the Establishment clause to begin with by parking it on public land.

Quote from: grumbler on April 29, 2010, 11:19:25 AM

Quote from: Berkut on April 29, 2010, 10:34:57 AM

Quote from: Grey Fox on April 29, 2010, 10:04:39 AM
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.

QuoteOf 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.

Quote from: Slargos on April 29, 2010, 11:27:57 AM
The principle of not having religious symbols on federal property is a sound one, if you hate Christianity. But I suspect the idea was to prevent overt displays of Christianity on public buildings. Bitching about a cross in a desert just makes you come across like a huge dick.

Of course, it is a pretty meaningless issue. Who really cares?

But someone is going to be that huge dick - in this case, somsone else asked the park service if they could put a similar buddhist symbol up, and of course the Park Service said no, which is what drove the entire thing.

The NPS, knowing that this made no sense, decided to take down the giant cross. But then of course the Christians who hold services there got all up in arms, and since there are precious few Buddhists in Congress, they passed a law as part of an appropriations bill protecting the cross.

No similar law allowing the giant Buddhist shrine has been forthcoming.

And hence the entire reason the Feds should stay out of the religion business entirely. If you want to put up a non-religious memorial to WW1 vets, knock yourself out. If you want to put up a religious symbol on public property, that should not be allowed, because inevitably some OTHER religious person is going to want one as well.

Quote from: grumbler on April 29, 2010, 11:26:25 AM

Quote from: Berkut on April 29, 2010, 10:47:39 AM
IMO, the problem with the swap is that it is a blatant attempt to simply get around the Constitutional issue. If you cannot put sectarian symbols up on public lands, and there is some good reason for this, simply waving a wand and calling the land no longer public while changing absolutely nothing else means there probably should not be such a restriction to begin with, and you should just allow religious symbols on public land to begin with.

Wow, this is slippery-slopism at its worst! :bleeding:

Your conclusion does not follow from your premise at all.  What can be done on Federal property and what can be done on private property are different things, as Federal powers are limited to those articulated, while private powers are unlimited except where exceptions are articulated

...and the government giving or selling land for the express and only purpose of avoiding the Establishment Clause, is violating it anyway.

My conclusion certainly does follow from my premise. If in fact there is some good reason to not allow giant crosses on public property, giving away public property for the purpose of putting giant crosses on it is the same thing.

Your hypothesized trillion dollar sale, would, presumably, at least be for the purpose of generating a trillion dollars. That is not the case here - the only purpose for the "land swap" is to allow someone to place a religious symbol where a court had already said one was not allowed.

Quote from: Berkut on April 29, 2010, 11:22:54 AM
Nope. Of course, in this case, the price was basically zero dollars. But the price isn't really the point, except that it illustrates that the reason for the swap was not any desire by the government to make some money - simply a means to avoid a Court ruling they did not like, praise Jesus.

I presume you have evidence that the government official (whom you don't name, but need to) who decided to make the swap was motivated by religious impulses... otherwise, this is mere blackguarding.

QuoteNo, 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.

Sorry, I need proof that the US government must ensure that land it sells can only be used for purposes consistent with the federal government's powers under the Constitution.  The Federal Land Policy and Management Act of 1976 does not contain this limitation (quite the reverse, it says that "a tract of the public lands... may be sold under this Act where... disposal of such tract will serve important public objectives, including but not limited to, expansion of communities and economic development...").  Good luck finding any legal basis for your assertion.

Quote from: Berkut on April 29, 2010, 11:36:38 AM


Of course, it is a pretty meaningless issue. Who really cares?

But someone is going to be that huge dick - in this case, somsone else asked the park service if they could put a similar buddhist symbol up, and of course the Park Service said no, which is what drove the entire thing.

The NPS, knowing that this made no sense, decided to take down the giant cross. But then of course the Christians who hold services there got all up in arms, and since there are precious few Buddhists in Congress, they passed a law as part of an appropriations bill protecting the cross.

No similar law allowing the giant Buddhist shrine has been forthcoming.

And hence the entire reason the Feds should stay out of the religion business entirely. If you want to put up a non-religious memorial to WW1 vets, knock yourself out. If you want to put up a religious symbol on public property, that should not be allowed, because inevitably some OTHER religious person is going to want one as well.

I suspect the request to put up a Buddhist symbol was simply made by another huge dick to make a point.

In this case, with a 75 year old memorial site, there's two ways to go about the problem. Either you do what's already been done, or you can make a huge stink about it because you can.

Assholes are always going to pick alternative #2 because, well, they are assholes.

Do you really want to be an asshole?

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

Quote from: Barrister on April 29, 2010, 11:41:47 AM
I al always pleased when Berkut (or Martinus for that matter) gets all riled up about the evils of religion.   :)

This thread has nothing to do with the evils of religion though.

Quote from: Slargos on April 29, 2010, 11:40:53 AM

Quote from: Berkut on April 29, 2010, 11:36:38 AM


Of course, it is a pretty meaningless issue. Who really cares?

But someone is going to be that huge dick - in this case, somsone else asked the park service if they could put a similar buddhist symbol up, and of course the Park Service said no, which is what drove the entire thing.

The NPS, knowing that this made no sense, decided to take down the giant cross. But then of course the Christians who hold services there got all up in arms, and since there are precious few Buddhists in Congress, they passed a law as part of an appropriations bill protecting the cross.

No similar law allowing the giant Buddhist shrine has been forthcoming.

And hence the entire reason the Feds should stay out of the religion business entirely. If you want to put up a non-religious memorial to WW1 vets, knock yourself out. If you want to put up a religious symbol on public property, that should not be allowed, because inevitably some OTHER religious person is going to want one as well.

I suspect the request to put up a Buddhist symbol was simply made by another huge dick to make a point.

Probably, but so what? I suspect that the reason people want giant crosses out in the middle of public land is to "make a point" as well.

Quote

In this case, with a 75 year old memorial site, there's two ways to go about the problem. Either you do what's already been done, or you can make a huge stink about it because you can.

But it isn't a memorial site - it is just a big giant cross out on public land. There is nothing there that makes it a memorial site at all.

Quote
Assholes are always going to pick alternative #2 because, well, they are assholes.

Do you really want to be an asshole?

I don't really care, but I do think the cross should be removed, for obvious reasons.

Plenty of private land out there to put up giant crosses on.

Quote from: Berkut on April 29, 2010, 11:45:02 AM

Quote from: Barrister on April 29, 2010, 11:41:47 AM
I al always pleased when Berkut (or Martinus for that matter) gets all riled up about the evils of religion.   :)

This thread has nothing to do with the evils of religion though.

Oh, I strongly suspect that for you it does. 

You'll deny it of course, and there's no way to prove it, but that is nevertheless my strong suspicion.   :)

Quote from: Berkut on April 29, 2010, 11:45:02 AM

Quote from: Barrister on April 29, 2010, 11:41:47 AM
I al always pleased when Berkut (or Martinus for that matter) gets all riled up about the evils of religion.   :)

This thread has nothing to do with the evils of religion though.

Indeed. Much like a ban on firearms has nothing to do with the evils of school shootings.

Quote from: Berkut on April 29, 2010, 11:40:30 AM
...and the government giving or selling land for the express and only purpose of avoiding the Establishment Clause, is violating it anyway.

Mere argument by assertion.

QuoteMy conclusion certainly does follow from my premise. If in fact there is some good reason to not allow giant crosses on public property, giving away public property for the purpose of putting giant crosses on it is the same thing.

This a red herring.  No one is giving away any land for any purpose, let alone "giving away public property for the purpose of putting giant crosses on it."

QuoteYour hypothesized trillion dollar sale, would, presumably, at least be for the purpose of generating a trillion dollars. That is not the case here - the only purpose for the "land swap" is to allow someone to place a religious symbol where a court had already said one was not allowed.

The purpose of the land swap is to resolve the problem created when the National Park Service allowed the vets to put up the cross originally.  The land is of equal value, so the US public does not lose anything.  The cross stays, legally, so the people who put it up and maintain it lose nothing.  It is a win-win, except for those who think that somehow crosses must be destroyed for some reason.  There isn't a constitutional issue in the land swap, as the court has found.  the issue was with the cross on public property, which is what the land swap took care of.

That seems to me to be a very reasonable position for the Court to take.  If a problem can be resolved to the satisfaction of all actual parties and without violating the constitution, why object to that resolution?

Quote from: grumbler on April 29, 2010, 11:40:52 AM

Quote from: Berkut on April 29, 2010, 11:22:54 AM
Nope. Of course, in this case, the price was basically zero dollars. But the price isn't really the point, except that it illustrates that the reason for the swap was not any desire by the government to make some money - simply a means to avoid a Court ruling they did not like, praise Jesus.

I presume you have evidence that the government official (whom you don't name, but need to) who decided to make the swap was motivated by religious impulses... otherwise, this is mere blackguarding.

It was Congress, actually. The NPS decided that the cross should be removed.

And if you don't believe they were motivated by religious impulses, I can live with your lack of belief.

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.

Quote

QuoteNo, 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.

Sorry, I need proof that the US government must ensure that land it sells can only be used for purposes consistent with the federal government's powers under the Constitution.  The Federal Land Policy and Management Act of 1976 does not contain this limitation (quite the reverse, it says that "a tract of the public lands... may be sold under this Act where... disposal of such tract will serve important public objectives, including but not limited to, expansion of communities and economic development...").  Good luck finding any legal basis for your assertion.

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.

Quote from: Berkut on April 29, 2010, 11:27:12 AM
Of course not. But there is nothing inherently religious about a memorial to WW1 victims, and you don't need to put up a giant 7 foot cross that, by the way, says nothing about WW1, veterans, wars, memorials, or anything else. It is just a big cross sitting there.

So no - I don't think you can avoid Establishment issues by calling your religious symbols a "memorial".

Apparently you can, at least in this instance.

Quote from: Strix
If someone wants to add a Star of David to it for Jewish veterans of WWI than I would be fine with that as well.

Quote from: BerkutNope, can't do it - National Park Service won't allow it.

It doesn't appear anyone has tried. Adding a Shrine to Buddha is a lot different than adding a Star of David for fallen soldiers.

Quote from: Strix
You make a false argument that the Star of David would be rejected because if the cross is allowed than it's very unlikely a lower court would go against the Supreme Court and not allow it.

Quote from: BerkutActually, no, someone asked to place a Buddhist shrine near there, and it was not allowed, because the NPS said religious symbols on public land was a no-no. It was the NPS, btw, that also decided that this cross was not really a WW1 memorial, and should be removed.

Then Congress got involved.

It would appear to be a case of apples and oranges. Whomever argued the case in court appears to have done a terrible job of establishing the fact that the cross was not a WWI memorial but was now a place of worship. I can understand your objection if it is a place of worship but that isn't the basis for this case. Going on the premise that it is a WWI memorial explains why a Buddhist Shrine was denied.

Quote from: Barrister on April 29, 2010, 11:47:33 AM

Quote from: Berkut on April 29, 2010, 11:45:02 AM

Quote from: Barrister on April 29, 2010, 11:41:47 AM
I al always pleased when Berkut (or Martinus for that matter) gets all riled up about the evils of religion.   :)

This thread has nothing to do with the evils of religion though.

Oh, I strongly suspect that for you it does. 

You'll deny it of course, and there's no way to prove it, but that is nevertheless my strong suspicion.   :)

Nice BB. I am sure you do in fact no better than I what I think about topics like this.

I do in fact feel rather strongly about the importance of NOT favoring particular religions over others. One can feel that is important without being motivated by finding religion evil.

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?

Quote from: Berkut on April 29, 2010, 10:48:50 AM
Here is what the "WW1 Memorial" looks like, btw:
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fwww.nationalparkstraveler.com%2Ffiles%2Fstoryphotos%2FMOJA-Sunrise_Rock_Cross.jpg&hash=9dac20aba1ace482eb282234751a58e61f4b9b0d)

Pffft, amateurs, now this is an offensive cross.

(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fhistoriadoreshistericos.files.wordpress.com%2F2010%2F03%2Fel-valle-de-los-caidos1.jpg&hash=e6a8229992f80753f1aefeb810b0b0e0a30cabbb)

Built with forced labour by POWs, to boot!

You can go back at your regular debate now.  :P

Quote from: Strix on April 29, 2010, 11:52:28 AM
It would appear to be a case of apples and oranges. Whomever argued the case in court appears to have done a terrible job of establishing the fact that the cross was not a WWI memorial but was now a place of worship. I can understand your objection if it is a place of worship but that isn't the basis for this case. Going on the premise that it is a WWI memorial explains why a Buddhist Shrine was denied.

Not at all - the Buddhist shrine was denied because the NPS said you were not allowed to place religious symbols on public property. At the same time, they acknowledged that in fact this symbol was in violation, and said they were going to have it removed under the exact same provisions they just denied the Buddhist shrine. This is a perfectly reasonable and consistent position.

THEN Congress got involved. They first added a rider to an appropriations bill stating that no funds could be expended to remove the cross (which some concerned WW1 memorializing person had literally bolted to the rocks), then when that didn't fly, came up with the "land swap" game where they gave the land away.

So presumably someone else could, if they could get Congress to approve it, simply get some more land swapped so they can put up their buddhist shrine as well. Yeah, sure, that could happen.

Quote from: Berkut on April 29, 2010, 11:52:42 AM
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 the American insistence on absolute separation of church and state is crazy.   :)

Quote from: Barrister on April 29, 2010, 12:03:00 PM

Quote from: Berkut on April 29, 2010, 11:52:42 AM
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 the American insistence on absolute separation of church and state is crazy.   :)

I am not aware that any such insistence exists. Certainly there is not "absolute" separation of church and state in America today.

I'm with the Roberts/Kennedy opinion, actually.  The cross was not erected specifically by the federal government, and the government is not bound to render any public discussion of religion taboo.  I'm of the opinion the free exercise clause trumps the establishment clause here, as governmental suppression would be greater interference in religious affairs than simple acknowledgement.

Quote from: grumbler on April 29, 2010, 11:49:13 AM
The purpose of the land swap is to resolve the problem created when the National Park Service allowed the vets to put up the cross originally.  The land is of equal value, so the US public does not lose anything. 

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.

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.

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.

And the reasoning is very straightforward - allowing a cross is giving preference to one religion over another (since you are not going to allow other religious symbols). And making the land swap is also showing preference, since presumably such land swaps, approved by Congressional act, are not going to be made for any and all other religions. It places the issue of what religious symbols can be placed on public land, in every practical sense, in the hands of politicians. Those that are politically palatable will be defended (as this one was) and those that are not will go nowhere.

Is it significant? Probably not - there doesn't seem to be any continuing problem, although I certainly could see this as being a rather disturbing precedent. Maybe that nutbar fanatic judge can get the state of Alabama to sell enough space in his courtroom to some local group so they can place his giant ten commandments plaque back in there. See, it isn't public property anymore, so anything is a-ok!

The cross stays, legally, so the people who put it up and maintain it lose nothing.  It is a win-win, except for those who think that somehow crosses must be destroyed for some reason.  There isn't a constitutional issue in the land swap, as the court has found.  the issue was with the cross on public property, which is what the land swap took care of.

That seems to me to be a very reasonable position for the Court to take.  If a problem can be resolved to the satisfaction of all actual parties and without violating the constitution, why object to that resolution?
[/quote]

Quote from: DontSayBanana on April 29, 2010, 12:16:53 PM
I'm with the Roberts/Kennedy opinion, actually.  The cross was not erected specifically by the federal government, and the government is not bound to render any public discussion of religion taboo.  I'm of the opinion the free exercise clause trumps the establishment clause here, as governmental suppression would be greater interference in religious affairs than simple acknowledgement.

I think that is a vastly better argument than the idea that you can dance around Establishment restrictions by just giving away custom fitted chunks of public land to chosen groups for them to maintain their religious icons.

Roberts is basically saying, as  far as I can tell, that this simply does not rise to the level of Establishment, and hence the land swap isn't even necessary. As someone who does not support much of any religious symbology in public places, I would tend to agree with that position. It is already there, it isn't that big of a deal, and I don't know that anyone has shown that there is really any harm being done by it.

I would not support someone putting up something new like this, but it is already there, and there is at least a token/fig leaf of it NOT being a strictly religious symbol (even though I think at this point that is actually all it is).

Meh, I don't mind some religious displays on public property, and I don't even mind a reasonable bias towards Christianity.  After all, most of the country is Christian, it's just natural for Christian stuff to be featured more prominently than, say, Hindu stuff. 

However, selling the public land with that cross on it was clearly done to violate the spirit of the law, even if it was carefully managed to abide by the letter.  Those are the kinds of situations that the Supreme Court should rectify, IMO, and unfortunately that didn't happen here.

Quote from: DGuller on April 29, 2010, 12:25:55 PM
Meh, I don't mind some religious displays on public property, and I don't even mind a reasonable bias towards Christianity.  After all, most of the country is Christian, it's just natural for Christian stuff to be featured more prominently than, say, Hindu stuff. 

However, selling the public land with that cross on it was clearly done to violate the spirit of the law, even if it was carefully managed to abide by the letter.  Those are the kinds of situations that the Supreme Court should rectify, IMO, and unfortunately that didn't happen here.

I'm not sure where you're getting that it was against the "spirit of the law."  This was a popular symbol, by and large, both to Christian and non-Christian observers, and the court chose to uphold the "spirit" of "insure the domestic Tranquility" by pointing out that it was largely a non-issue, since the government had not actively endorsed religion.

Quote from: DontSayBanana on April 29, 2010, 12:31:17 PM
I'm not sure where you're getting that it was against the "spirit of the law."  This was a popular symbol, by and large, both to Christian and non-Christian observers, and the court chose to uphold the "spirit" of "insure the domestic Tranquility" by pointing out that it was largely a non-issue, since the government had not actively endorsed religion.

The spirit of the law is to not having huge crosses on the public lands.  Selectively making the small piece of land non-public just to let that cross stand there, in the middle of the public lands, is done only to violate that spirit of the law.

Quote from: derspiess on April 29, 2010, 09:57:17 AM
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?

Quote from: DGuller on April 29, 2010, 12:34:04 PM
The spirit of the law is to not having huge crosses on the public lands.  Selectively making the small piece of land non-public just to let that cross stand there, in the middle of the public lands, is done only to violate that spirit of the law.

It doesn't take the Supreme Court to know that you'd still have to be able to access that small piece of land, which would mean granting an easement.  Guess what?  Once the government grants that easement, there's a nice, letter-of-the-law reason to attack them with an establishment suit.  The Supremes actually just made it easier to fight this with the letter of the law and not resort to a loophole versus loophole case of mental masturbation.  On top of that, cy pres makes it nice and easy for the government to reclaim that little bit of turf if they don't play nice.

Quote from: Berkut on April 29, 2010, 11:49:42 AM
My assertion is the same as that used by the ACLU

Automatic proof that you're wrong :P

Quote from: Faeelin on April 29, 2010, 12:40:23 PM
This would be at the Arlington Cemetary where families of fallen soldiers can choose between 39 different religious symbols, right?

STOP STALKING ME :angry:





:P

I was wondering how long timmy was going to take before posting this one.  Could he be slipping?

This case had a very unusual procedural posture - i.e. the prior legal arguments and rulings that preceded this particular appeal reaching the Supreme Court.  That plus a Kennedy deluxe opinion and a couple inconsistent concurring opinions means it is hard to draw meaningful conclusions from this.

Grumbler asks the sensible question: "If a problem can be resolved to the satisfaction of all actual parties and without violating the constitution, why object to that resolution?"  I think that is exactly what is driving Kennedy's plurality opinion in this case.  The actual result reached seems to be the most reasonable and rational one and Kennedy is basically doing an O'Connor-esque manuever of coming up with the legal argument that allows him to back into the common-sense result.

The problem is that this case is not really a constitutional case - it is a case about the enforcement of an existing injunction.  The constitutional case was brought years ago and the plaintiff won.  As a result of that victory, the plaintiff got an injunction against the government which the government failed to appeal.  Now one could plausibly argue that the injunction shouldn't have issued in the first place, but that legally-speaking is water under the bridge - the government waived their rights to challenge or modify the injunction.

The dissent argues - rather persuasively IMO - that the injunctive language is pretty broad and that the government's transfer violates that language.  Alito, Scalia and Thomas adopt a much narrower interpretation of the injunctive language, and find no violation.  Roberts essentially concedes that the injunction may been technically violated but not in substance.  That leaves Kennedy alone writing an opinion of the Court which seems to concede that the transfer violated the injunction, but tries to get around it with a lot of hand-waving.  His principal argument seems to be that the basis for the enforcement of the injunction differed from the basis used to get it in the first place - but I can't think of any legal principle or precedent that bars this - and apparently neither could he (b/c he didn't cite to any). 

Quote from: Berkut on April 29, 2010, 11:49:42 AM
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.

:huh: No one has a cross on public land.

QuoteMy 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), so I don't see how the assertions can be the same.

None of the dissents in this case used your assertion, either.

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

Quote from: Barrister on April 29, 2010, 11:41:47 AM
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.  :)

Quote from: grumbler on April 29, 2010, 12:56:35 PM

Quote from: Barrister on April 29, 2010, 11:41:47 AM
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!  :hug:

Quote from: Barrister on April 29, 2010, 12:03:00 PM
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.  :)

Quote from: grumbler on April 29, 2010, 12:54:54 PM
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? :D

Quote from: grumbler on April 29, 2010, 12:54:54 PM

Quote from: Berkut on April 29, 2010, 11:49:42 AM
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.

:huh: No one has a cross on public land.

QuoteMy 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.

Quote

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.

Quote from: Berkut on April 29, 2010, 12:18:23 PM
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.

QuoteThe 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.

QuoteIf 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.

Quote from: grumbler on April 29, 2010, 01:05:57 PM

QuoteIf 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.

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.

Quote from: grumbler on April 29, 2010, 01:05:57 PM

Quote from: Berkut on April 29, 2010, 12:18:23 PM
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.

Quote

QuoteThe 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.

QuoteThe 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.

Quote from: Faeelin on April 29, 2010, 12:40:23 PM

Quote from: derspiess on April 29, 2010, 09:57:17 AM
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!  :showoff:

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?

Quote from: Faeelin on April 29, 2010, 01:28:09 PM
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.

Quote from: Strix on April 29, 2010, 01:18:50 PM
If you want to be impressive than list all 39 symbols without looking them up!  :showoff:

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

Quote from: derspiess on April 29, 2010, 02:46:09 PM

Quote from: Strix on April 29, 2010, 01:18:50 PM
If you want to be impressive than list all 39 symbols without looking them up!  :showoff:

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.

Quote from: Berkut on April 29, 2010, 02:48:29 PM
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 :P

Quote98
   MUSLIM (Islamic 5 Pointed Star)    Not shown because of copyrights

WTFOMGBBQ

Quote from: Berkut on April 29, 2010, 01:17:41 PM
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?

Quote from: grumbler on April 29, 2010, 03:25:39 PM

Quote from: Berkut on April 29, 2010, 01:17:41 PM
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?

QuoteThe 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."

QuoteThe 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.

Quote from: Faeelin on April 29, 2010, 01:28:09 PM
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.

Quote from: Berkut on April 29, 2010, 03:28:09 PM
snip of non-responsive quote

So I take it the answer is "no."

Quote from: grumbler on April 29, 2010, 03:29:27 PM

Quote from: Faeelin on April 29, 2010, 01:28:09 PM
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.

Quote from: grumbler on April 29, 2010, 03:30:51 PM

Quote from: Berkut on April 29, 2010, 03:28:09 PM
snip of non-responsive quote

So I take it the answer is "no."

:lmfao:

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.

Quote from: Berkut on April 29, 2010, 03:33:41 PM

Quote from: grumbler on April 29, 2010, 03:30:51 PM

Quote from: Berkut on April 29, 2010, 03:28:09 PM
snip of non-responsive quote

So I take it the answer is "no."

:lmfao:

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?

Quote from: Berkut on April 29, 2010, 03:32:34 PM
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. :mellow:

Quote from: Faeelin on April 29, 2010, 01:28:09 PM
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.

Quote from: Barrister on April 29, 2010, 12:03:00 PM

Quote from: Berkut on April 29, 2010, 11:52:42 AM
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.

Quote from: The Minsky Moment on April 29, 2010, 04:05:48 PM
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.

Quote from: grumbler on April 29, 2010, 04:14:26 PM

Quote from: The Minsky Moment on April 29, 2010, 04:05:48 PM
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. 

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

Quote from: grumbler on April 29, 2010, 04:01:50 PM

Quote from: Berkut on April 29, 2010, 03:32:34 PM
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. :mellow:

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.

Quote from: Berkut on April 29, 2010, 11:32:31 AM

Quote from: grumbler on April 29, 2010, 11:19:25 AM

Quote from: Berkut on April 29, 2010, 10:34:57 AM

Quote from: Grey Fox on April 29, 2010, 10:04:39 AM
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.

QuoteOf 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.

Quote from: grumbler on April 29, 2010, 03:56:49 PM

Quote from: Berkut on April 29, 2010, 03:33:41 PM

Quote from: grumbler on April 29, 2010, 03:30:51 PM

Quote from: Berkut on April 29, 2010, 03:28:09 PM
snip of non-responsive quote

So I take it the answer is "no."

:lmfao:

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.

Quote
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.

Quote from: derspiess on April 29, 2010, 02:46:09 PM

Quote from: Strix on April 29, 2010, 01:18:50 PM
If you want to be impressive than list all 39 symbols without looking them up!  :showoff:

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.  :lol:

Quote from: The Minsky Moment on April 29, 2010, 04:33:05 PM
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.  :P

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.

Quote from: Berkut on April 29, 2010, 05:31:01 PM
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.

QuoteWhich 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.

QuoteYou 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!

QuoteWell, you have them. You're welcome.

Stricken as non-responsive.

Quote from: jimmy olsen on April 29, 2010, 05:29:37 PM
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.

Quote1) 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.

Quote2) 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.

Quote3) 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.

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?

Quote from: jimmy olsen on April 29, 2010, 05:29:37 PM
The establishment clause as originally written was simply intended to prevent the establishment of a state church.

That isn't what it says.

Quote from: The Minsky Moment on April 30, 2010, 09:33:01 AM

Quote from: jimmy olsen on April 29, 2010, 05:29:37 PM
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.

Quote from: The Minsky Moment on April 29, 2010, 04:33:05 PM

Quote from: grumbler on April 29, 2010, 04:14:26 PM

Quote from: The Minsky Moment on April 29, 2010, 04:05:48 PM
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 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.

I believe this ruling is racist.