July 4, 2012
My personal website is simply AlRodbell.blogspot. com, which links to this one on the Soledad Cross. A bit of irony is that most of the traffic to that site seems to come from those interested in my video essay of the trip to Mexico I made with Tom Cantor. While I'm on the side of the atheists, those who opposed to this Cross, Cantor is a man who is dedicating his life to bringing people to Christianity, the most literal creationist version of it. Yet, we have an emotional connection that transcends this vast chasm, which I describe in that essay.
I've had some cursory response from the main petitioners in the recent case, ACLU and lawyer for the associate of Phil Paulson, the man who started it all. But, my attempt to ferret out the back scenes activity, to know whether there was any attempt at compromise from either side, has had limited success. The lawyers running the show keep a tight ship. Until the property was transfered to the federal government, this was a local issue, mostly lead by Paulson and his lawyer. When the Jewish War Veterans (JWV) joined the case in response to the federal takeover, it was opposed by the local branch of the JWV, and probably still is.
Ironically, the decision of the Ninth circuit court will allow this memorial to retain its religious identity as it specifically said that it may include a cross, which implies that it must include other religious symbols. This, in the aggregate may still send a message of official monotheistic support. The new court-defined memorial then could become a representation of "one nation under God" as in the section of the Pledge of Allegiance that had been ruled unconstitutional by the same court of appeals in 2002.
Most people choose to not to become involved in this issue, and I can't blame them. Compared to other pressing public issues such as fiscal viability, health care and our war on drugs, this is a sideshow. Since going into the jurisprudence, the long line of precedent, along with the complex history of this particular case , I have been having some personal thoughts on the meaning of this at different levels. I do have the links for those who may be interested in these traditional academic approaches on my introduction, and I have edited for clarification the extensive history of this on the wikipedia site, Soledad Cross Controversy.
I have to wonder if the Soledad Cross has a value as a controversy as being more than the sum of its parts, more than the newspaper headlines can capture. Just as in England two soccer teams have a long running battle that sometimes becomes deadly---real hatred between fans that can lead to deadly consequences; perhaps the defenders of the cross, the politicians and newspapers who foster this primal emotion, are giving people a purpose, a focus for primal instincts that we share with beings lower on the phylogenic scale. The first chapter of Mark Pagal's "Wired For Culture" gives examples of how such warlike hatred between "tribes"seems to be found in all societies, taking many forms.
It seems that we need to have such strong emotios, made stronger by confrontation, even hatred of those who are identified as the enemy. My seeking to find the common thread of reason, of humanity, that will transcend this is probably going against a rather powerful part of our human nature, how we are wired to survive. It's no accident that this part of our nature is not more widely recognized, or when it is, it is seen as pathological, an aberration of how most of us conduct our lives. Part of the hallmark of our species is the ability to communicate, which requires a shared idea, or ideal, of rationality, of fairness, that allows us to transcend these more primal aspects.
On May 26, 1963 (date confirmed by N.Y. Times archives) I experienced this. It was on Second Avenue in a Manhattan community, Yorkville, that twenty five years before had been the center of the Nazi Bund in America, and still with a strong German tradition. I tell the story about a conversation at a cafeteria in the neighborhood, pointing out to the server what I wanted, "There that one, the kaiser roll." And to this day, I remember her wistful response. as with a fleeting smile she was back in Germany, "Ahh, the Kaiser...." expressing a sweet memory from her childhood.
But on this day it wasn't so nostalgic, as a group of neo Nazis had chosen this spot to exercise their constitutionally guaranteed freedom of assembly and speech. It seemed like half the New York police department were interposed between the hastily erected stands and the procession of the group in full Nazi garb carrying an American Flag to protect them from the rage they knew was coming. As the leader started to speak, the crowd reacted, but this time I wasn't the defender of constitutional rights, but a Jew who was enraged by these people.
The electricity was palpable, and I was a part of it, feeling it, gaining strength from the crowd, that now was becoming a mob. A few people broke through the police cordon and tore the flag away from the speaker, striking a cop who was trying to intervene with it. It was all over in a flash as the police arrested the man who had wielded their flag, and escorted the speakers away to safety . The mob, my mob, one that I felt a rare pleasure of belonging to, had denied these citizens of their Supreme Court affirmed constitutional rights. And I was elated.
To those who see the cross as an affirmation of their being part of something that provides them strength and solace, a protection from the very human dread of isolation--as deeply rooted as when such isolation meant being vulnerable prey. In this drama over the cross, with some prodding, it was the atheists who are transformed as the primal enemy, as those with the swastikas were to me. My reaction then, as with those who will fight to the death to keep their cross now, may be beyond the reach of the kind of discourse found in legal briefs.
God, for those who believe, provides something we rarely think about as expressed in this quotation:
"The sacred rights of mankind are not to me rummaged for among old parchments, or musty records. They are written, as with a sunbeam in the whole volume of human nature, by the hand of divinity itself: and can never be erased or obscured by mortal power"
These are the words of Alexander Hamilton, and while not part of the U.S. Constitution, it is in the inside cover in to the most widely circulated version, the one printed in the millions that is handed out by elected officials and political candidates. "Old parchments and musty records" mean laws, constitutions, like the one that he helped write and signed on to. Yet, he subordinates it to "human nature that is the work of divinity" that takes priority over such documents.
Few secularists would contest Hamilton's sentiment when "deity" and "human nature"-- are seen as something different, as deep forces of evolution that we never can quite codify into "old parchments or musty records." "Sacred rights" just may not be amenable to codification by statute or legal precedent by mortal power, even if its wearing supreme court robes.
Yet, the reality is that all we can do is try. In the words of a man who, unlike Hamilton did make it to the presidency before being killed, "Knowing that here on earth God's work must surely be our own" These final words are from JFK's inaugural address, yet they reflect the hope of the major figures of his era. That speech also expressed the need to keep trying transcend our instincts to war, whether among nations, ideologies or religions. It is a call for dialogue and reaching out and not resorting to violence if one's view does not prevail.
And so the pageant of humanity continues to play itself out.
Friday
Now What-after Supreme Ct. Refuses to take case
June 27, 2012
Most news reports have stated that this 23 year long legal Odyssey now goes back to the federal district court, at which point if it issues an injunction to remove the existing cross, a new appeal could be filed. And the decision on this appeal could once again be submitted for review to the Supreme Court.
After a careful reading of the briefs and decisions of the district court and the court of appeals, which now stands after yesterday's Supreme Court's denial of certiorari, the mandate to change the existing monument has the force of law. Given the extensive delay in making this determination, it was obviously a seriously considered one, with the justices having a full understanding of its implications.
Given that the 9th did not explicitly overturn the taking of the property by the federal government, the obligation to redesign the memorial is incumbent on the executive branch, ultimately the President. The 9th court order for "Further proceedings consistent with this opinion" can only mean action on redesign and replacement of this memorial.
The house Republican caucus ramrodded the condemnation of the land under the memorial in order to place it under the Department of Defense. Not a single senator, including Democrats, had the courage to vote to prevent this crass tactic from succeeding. It is now Federal property, which makes the kind of compromise that had been agreed to by all parties in 2004, much more difficult to achieve.
The conservatives on the Supreme Court, based on the length of time in deciding to let the 9th court of appeals determination that it was unconstitutional stand, obviously wanted to endorse this symbolic proclamation that the United States of America is a Christian country. It would have taken the votes of four Justices, meaning it was at least 6 to 3 NOT to accept this case. Justice Alito's description of the tentative nature of the court's confirmation of the unconstitutionality of the single dominant cross, while an unofficial individual statement, most likely reflects the underlying view of this minority of the court. (last two pages of this report)
His lone unofficial statement provides plausible denial that this action by the Supreme court confirms that the existing configuration of the memorial is unconstitutional. While this may be simplified as another example of left vs. right, conservatives v. liberals, it is not that clear
The Obama administration brought the challenge against the 9th court of appeals decision, writing " the government would have to "tear down" the cross if the Supreme Court rejected its petition. This was the same phrase used by those who have scuttled reasonable compromise over two decades, and is a shameful mischaracterization of the actual moderate appeals decision that specifically stated that a cross could be part of a modified monument.
Meanwhile there is evidence that the sentiment of San Diego citizens is changing, based on letters to the editor of the single daily paper that are published in proportion to those expressing a common point of view. This means that a city that had voted to do everything not to follow previous court rulings to remove the cross, now favor creating a new monument by roughly 8 to 1,
----------------------
Link to Amicus Brief of 34 members of congress that requested the Supreme Court grant certiorari. The content of this brief makes it clear that the case is not as Alto said in "an interlocutory position" meaning not at an end. The central issue address in this Amicus Brief was the constitutionality of the existing cross, which was argued extensively on the merits, something Alito said was not considered in not granting certiorari . placing him in disagreement with 34 legislators who were represented by this brief.
------------------------
From ACLU-Jewish War Veterans Brief to 9th Circuit:
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief:
(a) A declaratory judgment that the taking of the Mt. Soledad Latin cross and
its continued display on federally owned land violates the Establishment Clause of the First Amendment of the United States Constitution;
(b) The entry of a preliminary and permanent injunctive relief enjoining the continued display of the Mt. Soledad Latin cross on federally owned land
(c) Encourage and permit the Latin cross to be moved, at the expense of individual citizens who believe that the Latin cross should be preserved, to an appropriate non-governmental site;
(d) An award to Plaintiffs of their costs, expenses, and attorneys’ fees; and
(e) Such further and other relief as this Court deems just and proper.
DATED: August 24, 2006
------------
Here is the final part of the 9th decision, now affirmed by the Supreme Court.
Most news reports have stated that this 23 year long legal Odyssey now goes back to the federal district court, at which point if it issues an injunction to remove the existing cross, a new appeal could be filed. And the decision on this appeal could once again be submitted for review to the Supreme Court.
After a careful reading of the briefs and decisions of the district court and the court of appeals, which now stands after yesterday's Supreme Court's denial of certiorari, the mandate to change the existing monument has the force of law. Given the extensive delay in making this determination, it was obviously a seriously considered one, with the justices having a full understanding of its implications.
Given that the 9th did not explicitly overturn the taking of the property by the federal government, the obligation to redesign the memorial is incumbent on the executive branch, ultimately the President. The 9th court order for "Further proceedings consistent with this opinion" can only mean action on redesign and replacement of this memorial.
The house Republican caucus ramrodded the condemnation of the land under the memorial in order to place it under the Department of Defense. Not a single senator, including Democrats, had the courage to vote to prevent this crass tactic from succeeding. It is now Federal property, which makes the kind of compromise that had been agreed to by all parties in 2004, much more difficult to achieve.
The conservatives on the Supreme Court, based on the length of time in deciding to let the 9th court of appeals determination that it was unconstitutional stand, obviously wanted to endorse this symbolic proclamation that the United States of America is a Christian country. It would have taken the votes of four Justices, meaning it was at least 6 to 3 NOT to accept this case. Justice Alito's description of the tentative nature of the court's confirmation of the unconstitutionality of the single dominant cross, while an unofficial individual statement, most likely reflects the underlying view of this minority of the court. (last two pages of this report)
His lone unofficial statement provides plausible denial that this action by the Supreme court confirms that the existing configuration of the memorial is unconstitutional. While this may be simplified as another example of left vs. right, conservatives v. liberals, it is not that clear
The Obama administration brought the challenge against the 9th court of appeals decision, writing " the government would have to "tear down" the cross if the Supreme Court rejected its petition. This was the same phrase used by those who have scuttled reasonable compromise over two decades, and is a shameful mischaracterization of the actual moderate appeals decision that specifically stated that a cross could be part of a modified monument.
Meanwhile there is evidence that the sentiment of San Diego citizens is changing, based on letters to the editor of the single daily paper that are published in proportion to those expressing a common point of view. This means that a city that had voted to do everything not to follow previous court rulings to remove the cross, now favor creating a new monument by roughly 8 to 1,
----------------------
Link to Amicus Brief of 34 members of congress that requested the Supreme Court grant certiorari. The content of this brief makes it clear that the case is not as Alto said in "an interlocutory position" meaning not at an end. The central issue address in this Amicus Brief was the constitutionality of the existing cross, which was argued extensively on the merits, something Alito said was not considered in not granting certiorari . placing him in disagreement with 34 legislators who were represented by this brief.
------------------------
From ACLU-Jewish War Veterans Brief to 9th Circuit:
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief:
(a) A declaratory judgment that the taking of the Mt. Soledad Latin cross and
its continued display on federally owned land violates the Establishment Clause of the First Amendment of the United States Constitution;
(b) The entry of a preliminary and permanent injunctive relief enjoining the continued display of the Mt. Soledad Latin cross on federally owned land
(c) Encourage and permit the Latin cross to be moved, at the expense of individual citizens who believe that the Latin cross should be preserved, to an appropriate non-governmental site;
(d) An award to Plaintiffs of their costs, expenses, and attorneys’ fees; and
(e) Such further and other relief as this Court deems just and proper.
DATED: August 24, 2006
------------
Here is the final part of the 9th decision, now affirmed by the Supreme Court.
[23] Accordingly, after examining the
entirety of the Mount Soledad Memorial in context-having considered
it's history, it's religious and non-religious uses, its sectarian
and secular features, the history of war memorials and dominance of
the Cross—we conclude that the Memorial presently configured and as
a whole , primarily conveys a message of government endorsement of
religion that violates the Establishment Clause. This result does
not mean that the Memorial could not be modified to pass
constitutional muster, nor does it mean that no cross can be part of
this veterans' memorial. We take no position on those issues.
We reverse the grant of summary
judgment to the government and remand for entry of summary judgment
in favor of the Jewish War Veterans and for further proceedings
consistent with this opinion.
REVERSED AND REMANDED
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