No Crosses for Dead Troopers? The Dictatorial Impulse Returns
[Yesterday] the Tenth Circuit told the state of Utah that it could no longer erect crosses by the side of the highway memorializing state troopers who have died. The WSJ Law Blog excerpts this part of the opinion in American Atheists, Inc. v. Duncan (PDF):
“This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the [Utah Highway Patrol],” the judges wrote, adding elsewhere in the opinion that “unlike Christmas, which has been widely embraced as a secular holiday. . . . there is no evidence in this case that the cross has been widely embraced by non-Christians as a secular symbol of death.”
I’m sorry, are there Hindus driving through Utah who are unaware that “Christians are likely to receive preferential treatment” in Utah? If so, I’d call that person a most unreasonable observer.
All joking aside, are we really living in a world where a simple cross to mark the death of a government worker violates the Establishment Clause?
The general laws that deal with the separation of church and state take Jefferson's metaphor and apply it with a ruthless insensitivity to all sorts of places where it does not belong. One would never say that the use of crosses in Arlington cemetery creates an establishment of religion because there are relatively few Jewish stars. There would be a legitimate beef in this case if Utah took it upon itself to allow only crosses and to prohibit all other religious insignias for Jewish or Moslem leaders.
But I am sure that this is not what they have done. The distribution of crosses reflects the distribution of police force members. There is no reason to think that the reasonable observer would conclude that this policy was a state endorsement of religion. Perhaps there would be one or two odd ducks who did this. But if it mattered, the state could publish on line its policy of universal respect, and allow the families of atheists to use some symbol to commemorate their own loss. There is a strong dictatorial impulse that permeates some Establishment Clause issues. The far better approach is to allow for reasonable accommodations of religious symbols in public and private life.
This decision in my mind falls abjectly short of the modicum of common sense that we have a right to respect from our judges.
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May '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
I feel genuinely sorry for the families of the troopers that will now experience the disrespect of having the crosses removed. But this most important consideration notwithstanding... what a great midterm issue. Now all we need is for the president to "make himself perfectly clear..."
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
This is included in the class of symbolic but unimportant clashes between religion and secular government. That is not the case with the siting of the mosque near the site of the 9/11 attacks, which is very important. But here, I think the 10th Circuit is wrong. There are all kinds of uses of religious symbols by the state where no reasonable observer thinks the state is endorsing a religion, such as the opening of congressional sessions with a prayer, the existence of a congressional chaplain, the religious symbols on government buildings, and Christmas displays.
These displays, unfortunately, consume far more judicial and social time than they are worth. I would compare this to the use of crosses at military cemeteries. Utah should appeal to the Supreme Court, but if they want to make the case go away, they could give the family of the state trooper the choice to have a different religious symbol, such as a star of David (I believe this is what is done at Arlington cemetery, for example).
Aug '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
At its root, the conflict in America is vastly greater than politics. It's essentially spiritual, and there is a war being waged against Christianity and Judaism. The courts have proven out Jefferson' worst fears. His one reference to "a wall of separation" between church and state, made in a personal letter to a friend, has produced manifold thanks to a single Supreme Court.
Aug '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
Sorry, that should say 'manifold evil'.
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
Excellent points -- especially regarding the misuse of Jefferson's metaphor ("wall between church and state"). It's amazing that so many people who disparage originalism as a judicial philosophy love to trot out this chestnut as evidence of . . . . original intent! But that quotation -- written a decade after the Bill of Rights, and by a person who was in Europe at the time of the Constitutional Convention -- is an extremely poor guide to the First Amendment. I seriously doubt that anyone in the Founding generation thought that the Establishment Clause would prohibit any government action that might potentially offend an aetheist.
Jun '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
People need to remember, troopers don't risk their lives in shootouts and bad weather, take abuse from drunks, or take inventory of the crushed blood-soaked bodies of accident victims for the paycheck alone. They believe they're serving humanity, and doing God's work here on on Earth. Let 'em have a cross.
May '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
The article implies that the cross is used without reference to the religious beliefs of the trooper. As much as I dislike courts meddling in these things, I too would object to having the state choose a religious symbol for me.
Even as a Christian this concerns me. I dislike seeing the cross secularized, and would be very dismayed if it became little more than another Christmas tree. As John suggests, the policy at military cemeteries works well, where any religious symbols used on the memorial are chosen by the family.
To Christians the cross means a lot more than "death", and I would hate to see the state or the pop culture appropriate this symbol. I know that Utah means well, and they could solve things easily, as John suggests, by getting the fallen trooper's family to specify the memorial.
Jul '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
“This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the [Utah Highway Patrol],” the judges wrote
Uh, no. It would lead a "reasonable observer" to guess that the dead trooper was a Christian in life. Is being a complete idiot a prerequisite for being an appeals judge these days?
If I get killed in the line of duty and some judge bans my memorial, they better get ready for a haunting! >:(
May '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
Good golly gosh, this is horrid. Have nothing more substantive to say, beyond the points already made.
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
Volokh's headline speaks for itself: A Possible Endorsement Test Case for the U.S. Supreme Court?
Jul '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
What would prevent individual citizens from erecting those crosses? Will we now have a court ban the displays families of traffic-accident victims often emplace at roadsides?
These militant atheists are evil. Even worse, they're endlessly annoying.
Jun '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
As a resident of Utah (and a member of the dominant religion of that state), I can assure you that I would be unoffended to see a star of David to memorialize the death of a Jewish officer or a crescent or small minaret to memorialize the death of an Islamic officer (though, given Utah's demographics, I think the chances of a Jewish or Muslim police officer being killed in the line of duty on Utah's highways are quite small). In fact, I would consider such a memorial precisely the right thing to do. Or, if the family of the officer wishes no memorial, they should decide.
The point is to memorialize the officer in a manner consistent with their (or their families') wishes. It's all about honoring the memory of someone who gave his or her life serving others, and not about establishing a religion.
The silly navel-gazing of the federal courts on "establishment" cases has moved beyond parody.
May '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
Here's hoping that the Supreme Court eventually takes the opportunity to deliver a coup de grace to the misguided notion of "separation of church and state" (a la Justice Souter discarding the Conley v. Gibson "no set of facts" test in Bell Atlantic v. Twombly). The phrase is a red herring, the First Amendment's terms simply don't mandate any such "separation," and the whole idea has perverted the role of religion in the public square.
May '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
I just took a look at the PDF of the ruling, a dangerous thing for a non-lawyer, but it does clarify things. The crosses were not erected by the state but rather by "UHPA, a non-profit organization that supports UHP officers and their families." Moreover...
"Before erecting any memorial, the UHPA obtained the consent of the fallen trooper’s family. None of these families have ever objected to the use of the cross as a memorial or requested that the UHPA memorialize their loved one using a different symbol. However, “[b]ecause [the UHPA] exist[s] to serve family members of highway patrolmen, the UHPA would provide another memorial symbol if requested by the family.”
This is exactly the right way to handle such things, and in this light the court's decision seems unjustified.
Living in California I do take some comfort in restrictions on state meddling in religion. But this is different.
Edited on Aug 20, 2010 at 11:36amJul '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
I remain completely stunned by the willful ignorance about what the First Amendment does and does not mean. There is absolutely no way in which it can be reasonably construed that this has anything to do with the First Amendment, period. end of sentence,
Idiots.
Aug '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
Richard Epstein:
This decision in my mind falls abjectly short of the modicum of common sense ...
Today I toyed with the symbolism of electrical engineers in an attempt to understand Life, Liberty and Property (...the pursuit of Happiness). My mind flashed back to Sam Jaffe, as Dr. David Zorba--on the Ben Casey show--chalking out symbols for "man, woman, birth, death (a cross, by the way) and infinity." I fell in love with symbols...and the (hypothetically Jewish?) Professor Zorba. Had I modeled myself after the dashing, young Casey, perhaps I would have had more dates and a lucrative clinical career. Instead, I liked that blackboard thing...and the academic character of Zorba. In graduate school, I occasionally dined with Paul Weinstein, our department's parasitologist. I loved that man. He was the consummate scholar and gentleman. Though departmental chairman and leader of a lab with external responsibilities (he was influential in the founding of the CDC), his desk was always immaculate. Even now, when I slip in my work discipline, I remember Dr. Weinstein, +R.I.P. And were a Jewish student of mine to remember me with a Star of David, ...I think I'd be honored.
Edited on Aug 22, 2010 at 3:05pmMay '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
In judicial decision after decision I am convinced we live in a Judicial Tyranny.
Aug '10
Re: No Crosses for Dead Troopers? The Dictatorial Impulse Returns
If it is tyranny, it is tyranny that we have passively accepted. Each twisting of justice must be remembered in recurring stories we tell each other and communicate to new generations. These are our recounted grievances. For this, we need art, literature, music, and movies. We need a cultural "liturgy." Friends and I recently watched "To Kill a Mockingbird." This is a great movie that is both inspirational and instructive. Though a work of art that I would think a present-day conservative would especially appreciate, I can imagine a lawyer from the ACLU or the Southern Poverty Law Center vainly--and with anachronistic conflation--flattering himself to be an embodiment of Atticus Finch. I am sure this is part of what the Left imagines to be exclusively its own, vivifying, cultural liturgy. Distilled and mythologized texts and entertainments can effectively serve as means of understanding and remembering systematic wrongs. Conservatives can tell the story of Tom Robinson as illustrative of injustice contrary to charity, liberty, and truth and against which we battle: the cross wars should be another.
Edited on Aug 28, 2010 at 3:28pm