Volokh, Eugene wrote:
I was thinking about the Mt. Soledad case, but it may not be
optimal from the conservatives' viewpoint, since it's an overtly
Christian symbol. The line Scalia drew in the Ten Commandments cases
seemed to be between the Christian symbols and Judeo-Christian-Muslim(?)
symbols, with the former generally not allowed and the latter allowed.
The Mt. Soledad cross could still be upheld on some specific grounds,
for instance that it's in context likely to be seen as a war memorial
and not just a cross (I'm skeptical of that on the facts, but that's one
possible argument) -- but these grounds may be too fact-specific to
warrant full Court review. So I'd think that the conservatives on the
Court might prefer a more Ten-Commandments-like case.
I would be more than happy to take bets on whether Scalia would redraw
that line if the Mt. Soledad case reaches the court. I predict that such
line-drawing will be non-existent in his judgement on that case.
Ed Brayton
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