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Barry, I believe the Supreme Court ultimately will conclude that the plaintiff did not have legal standing here – that this challenge was legally flawed from the very start.
Merely being ‘offended’ does not give the plaintiff a legal green light to go to court to challenge this memorial. As you know, just because the ‘standing’ issue did not receive a lot of attention during oral argument does not mean the Justices are ignoring it. They won’t and in the end I believe our side will carry the day on this issue.
Second issue: the Establishment Clause question. Does the placement of a cross on what was once public land – but now private land – constitute a violation of the Establishment Clause? I believe the answer is ‘no’ and I am hopeful that’s what a majority of the court will determine.
As you know, there were several spirited exchanges in court. One that caught my attention was this exchange between Chief Justice Roberts and ACLU attorney, Peter J. Eliasberg, about the text on the plaque – as reported by the New York Times.
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The chief justice asked for the text of the plaque.
” ‘This cross’ — in big letters — ‘erected in honor of the dead of foreign wars,’ ” Mr. Eliasberg responded.
A couple of minutes later, Chief Justice Roberts returned to the subject and corrected Mr. Eliasberg. The actual text on the plaque, the chief justice said, was more elaborate: “The cross, erected in memory of the dead of all wars, erected 1934 by members of Veterans of Foreign Wars, Death Valley Post 2884.”
“That’s a big difference,” the chief justice said, explaining that the longer version made clear that the cross was not a government memorial.
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I believe the court will reach the same conclusion about this war memorial as it did in a case that I argued last term.
In February, the high court ruled on our behalf in a case where a Utah city accepted a monument of the Ten Commandments and displayed it in a city park. In Pleasant Grove City v. Summum, the high court unanimously concluded that the city could constitutionally display the monument – and reject another – clearing the way for governments to accept permanent monuments of their choosing in public parks.
While it is difficult to predict the outcome of any First Amendment case of this nature, I believe the court will conclude that the war memorial cross can stay.
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posted October 9, 2009 at 3:49 pm
Jay –
I’m sorry to say it, but you are probably right about the issue of legal standing. This court, way overbalanced with conservative Republican appointees, routinely ducks out from under the serious questions, just like they did with Newdow’s challenge to requiring his child to recite the Pledge of Allegiance including the clearly unconstitutional phrase “under God”.
What is significant here is not the presence of the cross. What is significant is that another similar display was refused at the same location clearly violating the Establishment clause. In order to circumvent the Constitution, ownership of the property was transferred to the VFW in hpes that it might slip by on a technicality.
You can’t win this one Jay and you know it. If the court upholds standing and leaves the cross there, they do so by declaring the cross of Christ to be just another secular symbol representing death. Whereas, if you lose the crucifix, minus Jesus, will still indicate eternal life in Christ. So the best you can hope for is that the court will weasel out of this decison too…
posted October 9, 2009 at 4:37 pm
“Newdow’s challenge to requiring his child to recite the Pledge of Allegiance”
No child is ‘required’ to recite the Pledge in this country. Just wanted to make that clear.
posted October 9, 2009 at 5:31 pm
It has already been ruled that stigmatizing children in school by separating those of different religious belief is unconstitutional. Being told to sit silently and forego rightful participation in the POA will have the same result, eventually.
posted October 9, 2009 at 9:39 pm
What Dr. Jay pointed out that was also the center of Justice Roberts is key: that, in fact, the memorial is not a GOVERNMENT memorial. Therefore, it is a PRIVATE memorial on what is now PRIVATE LAND. Thus, the argument that the cross violates the establishment clause is void.
I am really SHOCKED, actually, that Mr. Eliasberg BUTCHERED the text on the memorial, obviously INTENTIONAL. Is that even ethical…to blatantly skew the text to undergird one’s position, a certain malefaction?
Just because one is “offended” isn’t enough to grant standing because the bringer of suit is not personally injured.
posted October 10, 2009 at 9:47 am
N. Lindzee Lindholm: “I am really SHOCKED, actually, that Mr. Eliasberg BUTCHERED the text on the memorial, obviously INTENTIONAL. Is that even ethical…to blatantly skew the text to undergird one’s position, a certain malefaction?”
Because no one ever makes mistakes, of course.
posted October 10, 2009 at 4:09 pm
Closing sentence:
And for the support of this Declaration, with firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
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Interesting to note:
sacred honor
sacred-1. Dedicated to or set apart for the worship of a deity. 2. Worthy of religious veneration:sacred teachings. 3. Made or declared holy.
So there you have it, another one of our foundational documents professing sacred honor. Sacred or holy honor to be pledged to one another. Now, if people have a problem with dedicatint themselves to worshipping God, I don’t know what to write here, other to say that we were founded with the principal in tact of sacred holyness pledged to one another. So I believe in keeping yourself holy(set apart for God). As our founding documents perscribe.
Cara Lea Floyd (Smith)