Most of the concern I think about the treatment of the chapel cross was about the way it was done, and where it was placed after removal. If I remember correctly, it was removed from the altar table to a back room or storage room of some kind. It also seems (again IIRC) that this was done by the Wm & Mary president without consultation or prior notice. Had the president raised the issue of whether it was proper to have a cross placed permanently as the focus of the room, had he allowed first for discussion of the issues, and had he perhaps suggested moving it to the side in an alcove (or even into a display case like the one it is in now), the response would have been very different. Thus I have to disagree with a prior comment (sorry, I've forgotten who sent it in) to the effect that the president was just doing what the Constitution required, and yet was then subjected to great criticism for just doing his duty.
Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, February 19, 2008 9:34 AM To: Law & Religion issues for Law Academics Subject: RE: Scalia and Motive Not having read your article, I can't say much on the subject. For everyone on the Court (except Justice Thomas) context -- especially the historical meaning -- seems to matter, so one would need to know more of the details. The presence of a 200+-year-old chapel on campus would pretty clear be constitutional even for the Ten Commandments majority, and possibly also for Justice O'Connor and perhaps Souter, Ginsburg, and Breyer. The question is whether the same would apply to a cross that had been there for 70 years (is that right?), and which way the liturgical inconsistency you describe with traditional Anglicanism, but the broader consistency between chapels and a cross, cuts. That's hard to tell without focusing a lot more on the historical details. Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Ira > (Chip) Lupu > Sent: Tuesday, February 19, 2008 9:29 AM > To: Law & Religion issues for Law Academics > Subject: RE: Scalia and Motive > > So what do you expect Scalia would say about the default placement of > that cross on the altar table in the chapel at Willima & Mary? > > ---- Original message ---- > >Date: Tue, 19 Feb 2008 09:21:31 -0800 > >From: "Volokh, Eugene" <[EMAIL PROTECTED]> > >Subject: RE: Scalia and Motive > >To: "Law & Religion issues for Law Academics" > ><religionlaw@lists.ucla.edu> > > > >Chip Lupu writes: > > > >> I think we have to go back to Prof. Finkelman's "realist" > >> question: Justice Scalia has (both before and after > Smith) voted to > >> uphold Free Exercise claims (Frazee, Lukumi, Locke v. > Davey), but I > >> don't believe he has EVER voted against the government in an > >> Establishment Clause case (including Edwards v. Aguillard, > and Santa > >> Fe Ind. School District v. Doe, which are probably the two > toughest > >> Est CL cases in which to side with the government during > his tenure > >> on the Court.) So will Justice Scalia ever see an Establishment > >> Clause claim that he likes? Or does he just find reasons to vote > >> against them all? > > > > I take it that Justice Scalia simply has a > substantively very narrow > >view of the Establishment Clause, such as (for instance) Justices > >Stevens, Souter, Ginsburg, and Breyer have a substantively > very narrow > >view of the judicially enforceable article I section 8 > constraints on > >fedearl power. I don't see why we should cast this as "[the > Justices] > >find reasons to vote against [all or nearly all the claims]" -- they > >*have* reasons, flowing from their understanding of the substantive > >scope of the constitutional right. > > > > Likewise, Justice Stevens has generally taken a very > broad view of the > >Establishment Clause; he has occasionally voted to reject an > >Establishment Clause claim that has reached the Court, but > quite rarely > >(and the only cases that come to mind, at least recently, have been > >unanimous or nearly-unanimous decisions, such as Witters, > Widmar, and > >Lamb's Chapel). That doesn't mean that "he just finds > reasons to vote > >[for] them all" -- only that his understanding of the breadth of the > >Establishment Clause is such a reason. > > > > Eugene > >_______________________________________________ > >To post, send message to Religionlaw@lists.ucla.edu To subscribe, > >unsubscribe, change options, or get password, see > >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > >Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read messages > that are posted; people can read the Web archives; and list members > can (rightly or wrongly) forward the messages to others. > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law George Washington > University Law School 2000 H St., NW Washington, DC 20052 > (202)994-7053 > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
