Sink your teeth into SCOTUS oral arguments in Sotomayor's first establishment clause case:

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http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-472.pdf

It may take me 2 hours but it will be tasty.

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1. Check out Ginsburg's first question....

JUSTICE GINSBURG: General Kagan, just as a factual matter, is there any other national memorial that consists of a solitary cross, just that one symbol and no other?

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2. Kagan responds:

GENERAL KAGAN: I don't believe that there is, Justice Ginsburg.

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3. self delete

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4. Justice Sotomayor on procedural matters of standing:

JUSTICE SOTOMAYOR: I don't understand -- I don't understand that point at all. If you thought that he didn't have standing to challenge the cross at all and that the injunction itself directing you to cover up the cross was wrong, you should have come to the Court. It was a permanent injunction. You were told you have interlocutory appeal rights, you have final judgment rights. At any point you could have come and said: The order for us to take that flag -- to take that cross off this land was just plain wrong.

[DefenseLawyer]

5. I know I'm a wet blanket

but oral argument is in most cases a meaningless academic exercise.

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7. Or fascinating clues about the thinking of the Justices and the issues involved?

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6. Exchange between Sotomayor and Kagan on using a sign as a remedy, distinguishing public v. private

GENERAL KAGAN: I think it would be very easy to put up signs just on the road to make clear that anybody who was in the area would know that this was land --
JUSTICE SOTOMAYOR: This would be on government land, that sign? It wouldn't be on the acre that you transferred. I'm a little confused.
GENERAL KAGAN: The small plaque.
JUSTICE SOTOMAYOR: You are talking about putting --
GENERAL KAGAN: The small plaque --
JUSTICE SOTOMAYOR: Would go on the cross?
GENERAL KAGAN: That's correct.
JUSTICE SOTOMAYOR: The larger sign you're talking about that you are willing to do is a sign that you would put on government land.
GENERAL KAGAN: That's correct. And as I said, it's something that the superintendent would like to do and I think would be consistent with signage in the area. If I --
JUSTICE SOTOMAYOR: Did you raise that alternative with the Ninth -- with the district court and the Ninth Circuit?
GENERAL KAGAN: I don't believe it ever came up, Justice Sotomayor. We did talk about it in our merits brief to this Court, but I don't think that it ever came up below.

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-472.pdf

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8. Exchange between Sotomayor and ELIASBERG:

JUSTICE SOTOMAYOR: Can -- can -- what, what -- let's start from the beginning. Can -- would it be proper for the government or would the government be alleged to have violated the Establishment Clause if on another ranch that cross -- a cross went up?
MR. ELIASBERG: No, they would not.
JUSTICE SOTOMAYOR: All right. So really your argument is that the reason this Court -- this cross on private land, if it becomes private, is offensive to the Establishment Clause is because of the government's prior history with respect to that cross, correct? That's -- that's your argument?
MR. ELIASBERG: That is one part of my argument. But there is another part. The government has taken the step of designating this cross one of 49 national memorials in the whole country and the only national memorial commemorating American service in World War I, even though it's clear in the record --
JUSTICE SOTOMAYOR: So are you alleging that doing that violates the Establishment Clause, passing or designating a religious symbol as a national memorial, that that violates the Establishment Clause?
MR. ELIASBERG: We are alleging that under the totality of the circumstances, which includes the national memorial designation, the government's asserted purpose to make sure that the cross remains up, the government's favoritism of the same parties that it has always favored in this case to the exclusion of others, and the maintaining of the property interest in the land in the form of a reversionary interest, all of those things --
JUSTICE SOTOMAYOR: Does that apply to all lands in this preserve?
MR. ELIASBERG: I'm sorry, does what apply to all lands?
JUSTICE SOTOMAYOR: Does the reversionary interest apply to all of lands on this preserve? Maybe your adversary has to answer that instead of you, but all of the other private property owners. MR. ELIASBERG: No, the reversionary interest specifically says the land reverts to the government if --
JUSTICE SOTOMAYOR: No, no, no. Are all of the private owners on this preserve required to give the land back to the U.S. if they put it to some different use?
MR. ELIASBERG: I don't believe that that is true.

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9. Scalia gets knocked down a peg:

JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.

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10. Stevens is not buying it General Kagan...

GENERAL KAGAN: But there is no -- there is no prohibition on the VFW taking down this memorial. We will just have one fewer national memorials. And --
JUSTICE STEVENS: Do you really think there is any possibility that would happen?
GENERAL KAGAN: Again, I think it is entirely up to the VFW.
JUSTICE STEVENS: That is not my question.
GENERAL KAGAN: I don't know, because I am not the VFW.

[TxRider]

11. So have they gotten to the fact of government owning churches?

Will Texas have tear down the Alamo and the other christian missions the spanish built so long ago?

Can the government never preserve a historic church, a great architectural treasure for historical reasons without stripping it to the walls? Or even contribute a grant for such?

If Afghanistan was a U.S. state, would the ACLU demand we blow up the Buddhas like the Taliban did?

I think we should respect the WWI soldiers that erected this historical monument, and allow historical value to override separation issues in this case.

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12. Even the ACLU lawyer agreed today that many religious symbols are fine when the intent is...

secular:

"I agree with General Kagan that, if we honored Martin Luther King, who was a priest, or we honored -- we did something with the Old North Church which had significant historical significance, that would create a very different issue than simply a stand-alone cross, where, when the National Park Service asked its own historian to determine whether it had historical value necessary to bring it within the National Register of Historic Places, the Park Service's own historian said, no, it did not."

I think you are objecting to a distortion of the ACLU's position rather than what they have said.

[TxRider]

16. I'm saying it's been there for 75 years

And has historic value.

It is erected by WWI soldiers, for WWI soldiers. They had events there until they all died.

It has more historic significance than it has religious significance clearly.

I see this as just intolerance, a U.S. version of the Taliban blowing up the buddhas.

I would feel exactly the same if it was a big star of David

Or if they tried to tear down the 7 spanish missions Texas owns, who's historic significance -is- their religious significance.

I would be interested in whether this argument is put forth.

The transfer of the ownership to the government was secular, and the recognition of the site's historic value was also secular, just as the recognition of the spanish mission was secular, even though their purpose was anything but secular originally.

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17. recently the government denied other religious symbols and made this a national monument

[TxRider]

19. But did they make it a monument specifically because it is christian?

Or did they do it because it was a historical site for WWI soldiers?

Seems like a completely secular recognition of historical value, just as the recognition of the half dozen remaining spanish missions around in Texas was, when their original purpose was purely religious.

Just like the buddhas in Afghanistan.

So we should allow a Buddah on the Alamo, or the state should tear it down? Or the rest of the missions?

It's petty intolerance to me.

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20. Even the conservative members of the court didn't by that, let me find the quotes...

[TxRider]

22. Please do

In my mind this was erected by the actual soldiers who survived, and visited and valued by soldiers who survived WWI, and lived through hell no soldiers since have endured, to honor their own.

It's a historical site, not a religious one in my eyes. It should be allowed to preserved as such.

Even if that means it cannot be a national monument.

To tear it down to me would be almost as heinous as the Taliban blowing up those Buddhas, which were clearly non secular objects as well.

Most have no idea what those men went through, in the age chemical warfare was used, blistered skin and permanently burned lungs, a rampant flu pandemic killing millions, and the life in the trenches and charges over dead and rotting bodies of your friends into newly developed machine guns that mowed down so many, which might have been a better fate than living through the muddy trenches tripping over rotting bodies.

And this is their monument, built by them, for them.

And it has no secular historic value, what a joke!

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24. There were Jewish soldiers as well and...

...soldiers of other faiths and no faith at all. I have no problem with the soldiers who put this up. I have a problem with the government favoring the majority religion. There are no national monuments consisting of:

A large stars of David.
and
Nothing else.

[TxRider]

27. Maybe there should be

In any case, absence of one is a weak argument at best.

The only real question is whether it establishes a state religion, or whether it has historical significance.

I simply cannot see how secular historical significance can be denied. In the case of mixed significance, the supreme court allowed the ten commandments on state property. A religious text and symbol, on state property in Texas, because it served at least partly another purpose besides religious.

"Rehnquist, reading the ruling in the Texas case, cited the complexity of deciding when and where Ten Commandments displays are permissible.

"No exact formula can dictate a resolution in fact-intensive cases such as this," Rehnquist read. "The determinative factor here, however, is that 40 years passed in which the monument's presence, legally speaking, went unchallenged.

"And the public visiting the capitol grounds is more likely to have considered the religious aspect of the tablets' message as part of what is a broader moral and historical message."

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30. I am not very impressed by Rehnquist but you are leaving out the importance of context

There is plenty of context at the Ten Commandment displays at SCOTUS (Islamic prophet Muhammad, Chinese lawgiver Confucius, and Greek legislator Solon). There is absolutely none here. Context provides a significant indicator of intent. What would you think if they moved this Christian cross and put it on the White House lawn?

[TxRider]

33. I'm speaking of SCOTUS decision of the Texas Capital ten commandments

Not the supreme courts

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34. So am I:

Public display cases are always context-dependent, and the Van Orden case is no exception.

The monument at issue sits amidst sixteen other nonreligious monuments (mostly to war veterans), all of which are placed at the heart of the grounds of the Texas state capitol. Rather than being purchased by the government, the monument was donated by a private group -- the Order of the Eagles, which has donated displays of the Ten Commandments to governments all over the country.

Ibid

[TxRider]

37. Yes they are

But what is the root question?

It seems to be whether or not the symbol has any other significance other than religious.

The context in Texas provided another significance, and was allowed to remain on that basis.

Similarly the contest of this cross, as historical, also provides another significance other than religious.

What significances other than religious is enough to allow a symbol to remain?

What types of significance are meaningful enough to allow it to remain?

What amount of other significance is enough to allow it to remain?

Or is any other "obvious" significance at all, of any kind, enough to allow it to remain?

IMO the "obvious" historical significance here provides enough to justify it's preservation.

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38. Well I disagree and think if that were the case any religion ought to be able to put up symbols of..

their religion and simply say, oh, by the way, I am doing this to highlight the history of German immigrants in the building of the western railroad.

[TxRider]

40. I think you miss my point

If they just went onto federal land and plonked it down today it would have no historical significance, no historical value in and of itself as a monument. It would be new. I would oppose it strongly.

If they were long dead, and had built the memorial 75 years ago before the land was government land, it should be arguably allowable to preserve it. It then would have historical significance inherent in and of itself.

Context.

If someone had just built the giant Buddhas in Afghanistan last week with a computerized laser, and Taliban blew them up, would the cry be nearly as loud as blowing up Buddhas built by long dead people and the time passing giving it historical significance?

It's the exact same religious symbol either way.

Would we have to tear down a chapel on George Washington's plantation if we made it a national monument and a chapel stood with a big cross on it?

It's a christian thing as well, nobody would blink an eye about a native american religious symbol on government land. The bias and intolerance irritates me, even as an atheist.

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44. There is certainly intolerance here but not by separationists. Tell me was Jim Crow ok? It had

been around a while.

Historical acceptance of a practice does not in itself validate that practice under the Establishment Clause if the practice violates the values protected by that Clause, just as historical acceptance of racial or gender based discrimination does not immunize such practices from scrutiny under the Fourteenth Amendment” Allegheny, 492 U.S. at 628 (O'Connor, J., concurring).

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28. Ok, I think it was inaccurate of me to say that. They admitted that Congress' intent was...

to save the cross not their motivation for doing so. I have to admit not being able to clearly determine the government's intent is a serious flaw in my position. I also think that this is a giant Christian cross (context is a weakness in yours) that we are talking about not a display depicting soldiers and their contribution to society, which by the way would make an excellent monument in the center of DC. They could show a soldier with a cross depicting the importance of his religion in his service for example. No one would object to that.

[TxRider]

31. Yes I agree but unfortunately we're stuck with this dilemna

And I have to side with the WWI soldiers who made their own monument and chose this, and the other WWI surviving soldiers who traveled there and established it as their memorial.

That historical significance outweighs any separation issue, and places it in secular territory.

Much as the supreme court decided the ten commandments at the Texas capital has significance other than religious, though it is clearly mixed, the fact it has other than religious significance allowed it to stand.

Similarly that a picture that would otherwise be illegal as child porn, can be legal and protected if it deemed to have "artistic significance".

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18. "Requests to erect a Buddhist shrine on the property were denied." by the gov not the ACLU.

[TxRider]

21. Yes I know

Just as it would be denied by say the state of Texas to place one on the Alamo, a christian church.

Or the rest of the spanish missions the state owns, which are purely christian churches.

Historical significance should override separation in this case IMO.

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23. First, remember that historical significance by itself is not enough

"These examples of ceremonial deism do not survive Establishment Clause scrutiny simply by virtue of their historical longevity alone. Historical acceptance of a practice does not in itself validate that practice under the Establishment Clause if the practice violates the values protected by that Clause, just as historical acceptance of racial or gender based discrimination does not immunize such practices from scrutiny under the Fourteenth Amendment” Allegheny, 492 U.S. at 628 (O'Connor, J., concurring)."

But in this case you do not have a 75 year old cross that became an issue and was taken down. You have a series of crosses that were put up without permission by the government, a minority religion's symbol that was denied by the government, which was followed by court action because of the differential treatment by the government based on religion, which was followed by congress selling a doughnut hole of land underneath it to a private owner in order to circumvent that court order and thereby put its stamp of approval on what was already found to be a violation. The vast majority of that occurred after the year 2000.

[TxRider]

25. I agree other than

The issue that the land became property of the national parks only in 1994

It's my understanding the VFW has been replacing the cross there since 1934 as needed, which is now being challenged.

And that someone got their panties in a wad because it was a cross, and they are intolerant of any form or symbol of Christianity.

I stand by it being a monument placed by WWI survivors, for WWI survivors, and that historical significance should be honored over the separation issue in this case.

If the supreme court can allow the ten commandments on state property, this should be easy.

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26. The displays at the Supreme Court depict secular and religious lawgivers in order to depict...

...the history of law not a governmental preference of religion(s).

At the Supreme Court Moses is depicted with Islamic prophet Muhammad, Chinese lawgiver Confucius, and Greek legislator Solon. What else is with the giant Christian cross? Nothing but the Cross.

[TxRider]

29. I'm speaking of the Texas Capitol case

Where it was decided they could remain.

http://writ.news.findlaw.com/hamilton/20050310.html

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32. From your source: "The monument at issue sits amidst sixteen other nonreligious monuments"

[TxRider]

35. Yes but read the arguments

The basis seemed to be that it has mixed significance, religious as well as other significance.

Similarly this cross has both a religious significance, as well as a historic one.

Is the test whether it has any other significance?

That's where I see the question. I do not deny it is a religious symbol, with religious significance. But I also see it has historical significance as well.

Does the historical significance, or does -any- significance other than religious, allow a religious symbol of any kind to be on public property?

Or do only certain significances other than religious qualify to allow a religious symbol to remain?

The line to draw is clear as mud.

If it wasn't a place of significance other than religious, we wouldn't even be having a debate.

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36. Going through them now... I just want to be able to have a huge star of david and atheist atom

on government property and get Congress to make it a national monument. Then the cross would be a-ok.

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39. Justice Breyer notes the context here:

"The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time."

http://www.law.cornell.edu/supct/html/03-1500.ZC2.html

[TxRider]

41. Yes

Point being it is allowed because it has obvious significance other than purely religious.

As does the cross in question. Historical significance as a site and monument other than the purely religious symbolism of a religion.

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43. Except that there is no other context with the cross, it is just a cross, a Christian cross

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13. And of an actual example:

MR. ELIASBERG: The one national memorial that I am aware of that has a cross, it is of Father Marquette, who was a significant historical figure. It is not a stand-alone cross. It is Father Marquette surrounded by a number of various objects that show his role as a historical figure, exploring the middle west, and he is holding a cross.

[SemiCharmedQuark]

14. Thanks for keeping us updated on the goings on of the courts, usregimechange

:thumbsup:

I always look forward to your updates.

[usregimechange]

15. Thank you and your welcome, it is fun and interesting

[defendandprotect]

42. k i c k