On May 9, Ghent University (Belgium) will host an international conference highlighting empirical work on the wearing of the face veil, or burqa. Speakers will address not only the sociology of the burqa, but also the possible consequences of laws, like those in Belgium and France, that ban it. A description of the conference agenda is here. H/T: Strasbourg Observers.
Mojave Desert Cross Case Settles
On Monday, a federal district court in California approved a settlement ending the long-running litigation in Salazar v. Buono, the Mojave Desert Cross case. The case, the most recent Supreme Court ruling on public religious displays, involves a Latin cross on a war memorial on federal land in the Mojave Desert. After a district court enjoined the government from displaying the cross as a violation of the Establishment Clause, the government attempted to convey the land to a private association, the Veterans of Foreign Wars. The district court ruled that the conveyance violated the terms of the injunction, but, in 2010, a divided Supreme Court reversed and remanded for further consideration.
This week’s settlement allows the government to convey the land to the VFW in exchange for other property. The National Park Service will install and maintain a fence with signage indicating that the land is privately owned and maintain roads allowing for “safe and suitable” public access. The government will not replace the cross, which someone stole after the Supreme Court’s decision, but the new owners are of course free to do so, and in fact, the VFW has a cross ready. The government will restore the plaque designating the spot as a national war memorial and has reserved the right to have Park Rangers explain to visitors what they’re looking at. H/T: Religion Clause.
Do Werewolves Violate the Establishment Clause?
It seems that The Military Religious Freedom Foundation has sent a
cease and desist letter to the U.S. Secretary of the Navy demanding that Marine Fighter Attack Squadron 122 stop using the name “Crusaders.” The Squadron had at alternative times in its history used the name “Werewolves” and “Crusaders.” The MRFF claims that “Crusaders,” as well as the symbol of a red cross on a white shield used by the Squadron, violates the Establishment Clause. “The most logical purpose of the Crusader moniker is to convey a message of approval of religion.”
I disagree; indeed, I find the position obtuse. There may be many reasons to use the epithet “Crusader,” and in a military context “[t]he most logical purpose” is to associate oneself with the fearsome, bellicose spirit of the Crusaders — who, after all, were warriors. So the letter seems to me to be wrong as a matter of constitutional law.
But set that aside. Why is MRFF not upset about the name “Werewolves”? Doesn’t “Werewolves” violate the Establishment Clause too? Lycanthropy (humans turning into wolves), I believe, was popular with the Algonquian Native Americans (the Wendigo), and I also think that certain varieties of Wicca believe in something like lycanthropy. Pagan belief in werewolves may have originated in Book 1 of Ovid’s Metamorphoses, where Ovid tells of King Lycaon, who is turned into a wolf by Zeus when he treats Zeus most inhospitably (“His arms descend, his shoulders sink away/ To multiply his legs for chase of prey./ He grows a wolf, his hoariness remains,/ and the same rage in other members reigns./ His eyes still sparkle in a narr’wer space:/ His jaws retain the grin, and violence of his face.”). And, of course, werewolves are an integral part of that most pagan of holidays, Halloween.
At any rate, given these religious origins and the continuing association of werewolves with paganism, why should MRFF have a special problem with cultural symbols with Christian origins? Let’s do this right, and get werewolves declared unconstitutional too.
Temperman on Religious Symbols in the Classroom
Jeroen Temperman (Erasmus University Rotterdam) has posted Religious Symbols in the Public School Classroom. The abstract follows.
This paper flags a couple of preliminary legal questions that are remarkably often ignored or trivialized by (international) courts. Underscoring the importance of identifying primary rights holders, genuine conflicting interests, and the obligations of duty bearers in symbol cases, this contribution illustrates that much depends on who can be identified as ‘symbol-displayer’ and who as ‘symbol-viewer’ and within which particular (public) setting. Focusing on public school education, the paper addresses such questions as under what circumstances may State neutrality be considered a legitimate ground for limiting fundamental rights. And who is actually supposed ‘to be neutral’ according to human rights law –– States, buildings, the ‘public square’, civil servants, teachers, students, and/or pupils? When does a symbol truly ‘interfere’ with the rights and freedoms of others or with public order? And who is to prove that? Also, what are the exact standards of proof in symbols cases?
Prélot on France’s Full Veil Prohibition
Pierre-Henri Prélot (University of Cergy-Pontoise) has posted Religious Symbols and the Law of 1905: Reflections on the Prohibition of the Full Veil in Light of the French Law on Religious Practice. The abstract follows.
There is a recurrent debate in France on the conflict between the principle of secularism and the expression of religious convictions in public places. The liberal approach, which is open to all forms of public expression including the religious convictions of individuals, is opposed to a much more restrictive conception, which understands secularism as limiting religious convictions to the private sphere, with the corollary of the interdiction, or at least a strict restriction, of their public manifestation, whether they be individual or collective. In today’s highly secularized French society, which feels itself undermined by religious factors deriving from international conflicts and internal tensions, the sometimes radical affirmation of identities tends to weaken the liberal interpretation which is at the basis of the law of 1905, in favor of a much more restrictive vision of the principle of secularism. That is revealed by the law of October 11, 2010, on the prohibition of the covering of the face in public places, which falls within the very old royal tradition, derived from Gallicanism, of the public regulation of religious practices. Although it carefully avoids any reference to religious practices or convictions, the law of October 11, 2010 must be understood as a law implementing a religious policy.
Government of Great Britain: No Right to Wear a Cross at Work
An extraordinary position for, of all countries, Great Britain to take before the European Court of Human Rights. Here’s a bit from the story:
In a highly significant move, ministers will fight a case at the European Court of Human Rights in which two British women will seek to establish their right to display the cross.
It is the first time that the Government has been forced to state whether it backs the right of Christians to wear the symbol at work.
A document seen by The Sunday Telegraph discloses that ministers will argue that because it is not a “requirement” of the Christian faith, employers can ban the wearing of the cross and sack workers who insist on doing so.
Supreme Court Review Sought in Mt. Soledad Cross Case
The petition for certiorari in Trunk v. City of San Diego is here. The case
involves the public display of a large cross, first erected in 1913 and replaced several times, atop a large hill called Mt. Soledad in La Jolla, California. The latest cross was erected in 1954 and dedicated by the Mt. Soledad Memorial Association “as a memorial to American service members and a tribute to God’s ‘promise of everlasting life.'” A well-crafted and highly particularistic opinion of a panel of the Ninth Circuit (McKeown, J.) held that the cross violated the Constitution, but its language tried mightily to negotiate around some fairly contrary expressions in Justice Kennedy’s opinion for the plurality in Salazar v. Buono. Judges Bea, O’Scannlain, Tallman, Callahan, and Ikuta dissented from the denial of en banc review. In his dissenting opinion, Judge Bea noted the key language from Justice Kennedy’s Buono opinion:
[T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.
“Big Mountain Jesus” Stays for Now
An update on a story we covered last November. The Forest Service this week approved a permit for the continued display of a six-foot statute, known as “Big Mountain Jesus,” on federal land in Big Mountain, Montana. The statute has been there since 1954. Its sponsor, the Knights of Columbus, says that the statue, which replicates statues seen by American soldiers fighting in Europe in World War II, serves as a war memorial. The Forest Service had decided last August not to renew the permit, but reversed itself this week in response to public outcry. The Freedom from Religion Foundation, which argued that renewal of the permit would violate the Establishment Clause, has announced plans to file a federal lawsuit as early as this week.
Cases about public religious displays are notoriously unpredictable. The Supreme Court has indicated that such displays cannot violate the government’s duty of religious neutrality, but the Justices have defined that duty in various, and not completely consistent, ways. Categorical tests are not very helpful; cases turn on specific facts and historical context. With respect to Big Mountain Jesus, it will be interesting to see which interpretation of the statue prevails: is the statue really a war memorial whose religious associations are only incidental, or is it, as FFRF argues, an unconstitutional sectarian endorsement? Watch this space for further developments.
“Big Mountain Jesus”
Yet another religious display case, this time from Big Mountain, Montana. For more than 50 years, the Knights of Columbus has maintained a six-foot tall statue, “Big Mountain Jesus,” as a tribute to World War II veterans who told of seeing similar shrines while fighting in Italy. The statue is on public land administered by the US Forest Service. In response to a complaint from the Freedom from Religion Foundation that the statue violates the Establishment Clause, the Forest Service told the Knights the statue could not remain. This decision caused a public outcry, and the Forest Service is now reconsidering. One possible solution is a land swap, in which the Forest Service would give the 25 x 25 foot parcel on which the statue stands to a nearby ski resort in exchange for another piece of real estate.
This dispute is very similar to Salazar v. Buono, the Mojave Desert Cross case from 2010, the last occasion on which the Court addressed religious displays on public property. Salazar involved a Latin cross erected on public land by a private group as part of a war memorial; when lower courts ruled the cross unconstitutional, the government executed a land swap to convey the memorial to private parties. Procedural complications made Salazar rather narrow, though, and it doesn’t give too much guidance here. Quite apart from Salazar, the Court’s jurisprudence on public religious displays is famously unpredictable. Under some versions of the endorsement test, “Big Mountain Jesus” is pretty clearly unconstitutional. But the Court doesn’t always apply the endorsement test, and Justice Kennedy’s plurality opinion in Salazar indicates that even a sectarian display, in the context of a longstanding war memorial, may be constitutional. The Forest Service plans to announce its decision next year.
Turner on the Zia’s Sacred Religious Symbol and Intellectual Property Law
Stephanie B. Turner (a student at Yale Law School) has posted The Case of the Zia: Looking Beyond Intellectual Property Law to Protect Cultural Rights. The abstract follows. –YAH
This Article focuses on an ongoing dispute in trademark law: the case of the Zia. Located near Albuquerque, New Mexico, this Native American pueblo has been using its sacred sun symbol in religious ceremonies since 1200 C.E. The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.