Everyday Scientist (NotScience)

The Mojave Cross Case

Facts:

A big white cross was erected by private citizens on remote government desert land about 60 years ago. It was made as a war memorial. It had been fixed up and replaced again and again by private citizens over the decades. People would sometimes visit there and hold Easter services.

A private citizen who lived nearby was offended by it and sued to have it removed as a violation of the Establishment Clause (i.e., the government cannot establish religion). The lower court applied a “reasonable observer” test and concluded that a reasonable observer would identify the cross as a Christian symbol, and because it is on government land, as an endorsement of Christianity. (Note: the families of the fallen choose the headstones at Arlington National Cemetery. If you look closely, you’ll find 5 Wiccan headstones there – the result of a settlement between the ACLU and the government on this very issue.) The lower court enjoined the government from displaying the cross, so the government covered it up.

Covering up the cross ticked people off, and Congress took action. Congress twice said no federal money could be used to remove the cross. They directed the Secretary of the Interior to spend $10K replicating the cross and installing it nearby. Then they flinched and created this “transfer statute” that allowed the government to transfer the land and cross to a private organization with the understanding that if the land were used for anything but a war memorial, then ownership would automatically revert back to the government.

The lower court enjoined the transfer, concluding that it violated the original injunction. The appellate court said the lower court did not abuse its discretion here. The Supreme Court took up the case.

Opinions:

Kennedy, writing for the plurality (and joined in part by Robert and Alito), usually tows the church-state accommodationist line, and did so here. He spouted off a) that government doesn’t need to kill all religious symbols in the public realm and may acknowledge religion’s role in society, and b) that government can accommodate divergent religious values so long as it somehow does that constitutionally. In my view, the former claim is fair and settled law but beside the point; the latter is just nonsensical. He implied that a “reasonable observer” would see the transfer the land and cross to the private organization as NOT violating the Establishment Clause, but send it back to the lower court to figure it out for sure if the plaintiff still wanted to take issue with it.

Scalia, concurring (and joined by Thomas), thought the plaintiff lacked standing and would’ve dismissed the case on that ground. The plaintiff had standing in the lower court to sue the government for putting a cross on public land. But that wasn’t the issue in the Supreme Court. The issue was whether the government’s transfer of the cross and land to private hands violated the Establishment Clause. The plaintiff needed standing for that issue, not the first one. To have standing, the plaintiff needs to show actual or imminent harm, not just speculative harm. Scalia didn’t find (though he didn’t really search for) actual harm to the plaintiff due to the transfer, noting that nothing in the transfer statute required the private organization to keep the cross up, and it hadn’t had a sporting chance to do so anyway. Scalia tossed aside the plurality’s notion that the plaintiff had retained standing in order to keep the government from any alleged attempts to frustrate or evade the original injunction. I appreciate Scalia’s attempt at judicial restraint but find the plurality’s point, that dismissing the case for lack of standing, would have frustrated or evaded the original injunction. (The plurality’s point, however, does not controvert the much stronger point by Breyer, discussed below, that the lower court was within its discretion to enforce the injunction by proscribing the transfer.)

Alito, concurring, thought the land transfer “cured” any prospect of religious endorsement (applying the “reasonable observer” test) and would’ve automatically allowed Congress’s transfer statute to take effect. Rather zealous, in my opinion. He granted no deference to the lower court.

Roberts, concurring, thought it was silly for the government to have to tear down the cross (which Kagan said would’ve  respected the original injunction) before transferring it and the land to the private organization. I agree with him that that “empty ritual” would be silly, and mentioning it was rather trivial to the case at hand. His concurrence was useless, borderline embarrassing.

Stevens, dissenting (and joined by Ginsburg and Sotomayor), a moderate church-state separationist, argued that a big Latin cross is unmistakably sectarian and the government’s display of it unequivocally endorses Christianity, as was concluded by the lower court. He argued that the transfer did not “cure” the government’s endorsement of religion but rather furthered it. Why? Because it was the government’s affirmative act to keep that cross aloft, to blatantly push for its continued display. He also said it was wrong for the plurality to send the case back to the lower court for a potential do-over because the lower court had already settled the point that it was a religious symbol. Stevens was basically defending the substance of the lower court’s conclusions, which his colleagues were challenging.  I think that’s fair. When irrelevancies are thrust into the limelight, they become de facto relevant, and rebutting them becomes fair game.

Breyer, dissenting, argued that lower courts should be given broad deference in how they choose to enforce their injunctions. The lower court had already settled the issue that a “reasonable observer” would have seen government display of the cross as endorsement of religion, implying that it was wrong for his colleagues to substitute in their own opinions on that issue. He also deferred to the lower court in how they enforced the injunction by proscribing the land transfer. The appellate court concluded that the lower did not abuse its discretion, and that is where the case should have ended. The Court should not have taken this case. This, I think would have been the correct disposition of the case. But since his colleagues took the case and raised what should have been settled issues, It was fair game to counter them, as Stevens did.

Conclusion:

The plaintiff can keep going in the lower court to see if the land transfer independently establishes religion with a wink and a nod from the plurality that it doesn’t.

The  superstar constitutional scholar, Erwin Chemerinky, summed it up beautifully:

“[A]llowing such transfers as a way of avoiding constitutional guidelines renders the establishment clause meaningless. A city could put a large cross atop its city hall and simply transfer ownership of the roof of the building to private owners.” (LA Times.)

Thoughts on Kagan

Here are my opinions on Kagan’s nomination to the Supreme Court. Not good. She will swing the court further to the right on a number of important issues.

First, she appears conservative on church-state separation. I was hoping that her being Jewish would make her more sensitive to this subject, but no such luck. As Solicitor General, Kagan argued to keep the big white memorial cross that was erected on government land in the Mojave desert. She won. The decision was a 5-4 split with the “liberal” bloc dissenting. With Kagan instead of Stevens, it would have been 6-3. Sux.

For background on that case, the government put up this big white cross in the desert as a memorial for war veterans. The government rejected putting up memorials that were symbols used in other religions. Then when people sued, the government thought it could wiggle out of the issue by giving the land to a private organization. (Mind you the government kept a right of reversion in the estate.) The Constitution says government can’t establish religion, which means no favoring or endorsing one religion over the other. The conservative majority said it’s peachy for government to acknowledge religion in society and that the lower court should have a sporting chance to find that the government “cured” any potential establishment of religion when it handed over the property to the private organization. They completely ignored the facts that a) the cross is clearly a specific religious symbol, b) other (non-Christian) religious symbols were rejected, and c) by giving the land over in order to keep that cross aloft, the government was clearly favoring endorsement of a particular religion. It wasn’t curing the establishment. It was ensuring the establishment. The minority astutely pointed out as much. So we can probably expect more idiocy in this area if Kagan joins the Court.

Second, Kagan appears conservative on expansive Executive Powers. So far the liberal bloc have invalidated the prior administration’s efforts to a) exempt from judicial review those ‘enemy combatants’ held abroad, b) create a corrupt military commission for foreigners charged with war crimes, and c) relax protocols on interrogating suspected terrorists.

Kennedy was the swing vote. Now it seems, Kagan would be – but in the wrong direction. Obama retained Bush’s sweeping ‘state secrets’ doctrine, and Kagan was all over that. But more troublesome is that Kagan appears to support a) indefinite detentions of suspected terrorists and b) expanding ‘terrorism law’ where criminal law rightly belongs. All very conservative.

Third, she appears down on gay rights. Well, to be fair she has been outspoken against ‘don’t ask, don’t tell,’ but I don’t think that was so much pro gay rights as it was pro people serving in the military. Even so, I’m skeptical that that issue will ever get to the Supreme Court. It’s largely a matter for the Executive Branch. Aside from that issue, it doesn’t look good. Kagan flat-out opposes marriage equality, stating unequivocally that the Constitution does not entail a right for same-sex couples to marry. She didn’t even hedge when asked. She could have said the issue is undecided and that it would be inappropriate to offer opinions on the topic. She could have said that, as Solicitor General, she would be bound to follow Obama’s position on the topic, which is to be meekly tolerant of civil unions but to oppose gay marriage. Nope, she did nothing of the sort. Sad. The Court is going to face all sorts of gay right issues in the coming years: gay marriage, same-sex couple’s adoptions, green cards, inheritance rights, healthcare and financial proxies, and more. Not good.

Fourth, I think it’s safe to say she is meekly pro choice. She refers to the body of law protecting a woman’s right to choose as “settled law” and marginally supported the standard that a government cannot create “undue burden” obstructing that choice. I say “marginally” because she seemed fine with protecting the nonsensical anti “partial birth” abortion act. A bunch of other reproductive rights issues are sure to head to the courts: parental notification, waiting periods for minors, interstate abortion availability, government mandated cost-prohibitive procedure prior to abortion. If she’s cool with the “partial birth” abortion nonsense, I won’t be surprised when she rolls over for the rest.

So there you go. She’ll likely be confirmed. And for the worse, I say, though I suppose we could do worse. Sigh. It’d be nice if Obama would be a goddam Democrat for a change.

Kagan Demographics

Obama has nominated Elena Kagan to fill Justice Stevens’ seat on the Supreme Court. I’ll chart some demographics, then later (time permitting) spout some opinions.

Here are some categories to which we would add Kagan’s name if she is confirmed:

Female Justices

Ruth Bader Ginsburg (1993-  )
Sandra Day O’Connor (1981-2006)

Jewish Justices

Ruth Bader Ginsburg (1993-  )
Stephen Breyer (1994-  )
Abe Fortas (1965-69)
Arthur J. Goldberg (1962-65)
Felix Frankfurter (1939-62)
Louis Brandeis (1916-39)
Benjamin Cardozo (1932-38)

Justices with no prior judicial service

William Rehnquist (1972-2005)
Lewis Powell (1972-87)
William Douglas (1939-75)
Byron White (1962-93)
Abe Fortas (1965-69)
Arthur Goldberg (1962-65)
Felix Frankfurter (1939-62)
Robert Jackson (1941-54)
Louis Brandeis (1916-39)

Here is what the composition of the Court would be:

By religion

6 Catholic (Roberts, Kennedy, Scalia, Thomas, and Alito)
3 Jewish (Ginsberg, Breyer, and Kagan).

By race

8 white persons
1 black person
1 Latino person

By sex

7 men
3 women

Age when appointed

Ginsburg – 60
Sotomayor – 56
Breyer – 56
Alito – 56
Kennedy – 51
Roberts – 50
Scalia – 50
Kagan – 50
Thomas – 43

Age as of May 2010

Ginsburg – 77
Scalia – 74
Kennedy – 73
Breyer – 71
Thomas – 61
Alito – 60
Roberts – 55
Sotomayor – 55
Kagan – 50

Appointing presidents (red for Republican, blue for Democrat)

Scalia (Reagan)
Kennedy (Reagan)
Thomas (Bush, Sr.)
Breyer (Clinton)
Ginsburg (Clinton)
Alito (Bush, Jr.)
Roberts (Bush, Jr.)
Sotomayor (Obama)
Kagan (Obama)

By Law School

Roberts         Harvard
Scalia              Harvard
Breyer            Harvard
Kennedy        Harvard
Kagan              Harvard
Thomas          Yale
Alito                 Yale
Sotomayor    Yale
Ginsburg         Columbia