28 April 2010

Burn the Cross

I'm still digesting this morning's opinion in Salazar v. Buono — the case testing whether the cross can/should be maintained on federal public land as a purported "war memorial" near San Diego — but I was struck by three issues that appear absent from the opinion. This is as much due to the insane way the record on appeal was created as anything else; that, in turn, is a combination of some really inept lawyering below and some really inept prefiling investigation that led to premature exclusion of the strongest legal theory that could have been presented. However, the insensitivity of the members of this Court toward the nonreligious minority is also a critical component.

In no particular order, on my first reading the Court simply did not consider (not even consider and reject):

  • Does the initial sponsorship of the memorial by the VFW — with its long history of discrimination, both formally and informally, and in particular at the time the memorial was erected — undermines any later claim that the memorial is not, in fact, sectarian? I would argue that it does: And that post hoc rationalization that either conscious or unconscious speech has a secular purpose, when the speaker's contemporary speech exudes anything but a secular purpose, has no legitimate place in First Amendment jurisprudence.
  • Does the meaning of speech change over time, and can the later meaning of that speech change what was once acceptable under the First Amendment into something that is not? The converse case, although it exists, is less troubling, because the government is not privileged to make speech violating the Establishment or Free Exercise subclauses that is presently inappropriate anyway. It might be more relevant in a pure-speech context; but this is not pure speech.
  • Shall the meaning of speech by the government with a religious context be determined solely by adherents of the same religion and background as the natural-person individual speakers? That is, are we restricted to adopting a white-male-protestant understanding of that cross?

And in the meantime, the VFW is grossly failing in its charter-imposed duty to teach proper respect for and maintenance of the flag — an undoubtedly "proper" and "secular" purpose. (I also support flag-burning both as the proper way to dispose of worn or damaged flags and as expressive speech; but that's for another time.)