Monthly Archives: October 2009

Saturday Evening Rap Break: Pimp My Satellite

Posted on by
Reply

Yo Russia it’s me, your arch-nemesis,
We the G’s over seas with Micky-D’s stains on our T’s,
with luxuries like you wouldn’t believe,
we’ve got more ringtones on our iPhones than China’s got Chinese,
We’re America biyatch, the land of the free
We gave you Michael Bolton and Jurassic Park 3
Our soccer teams suck and our beers taste like pee pee
but our rhymes are so phat they get type II diabetes

But enough about us, how come you ain’t been callin me?
I guess you’re trying to stabilize your volatile economy,
preoccupied nationwide with new domestic policies,
psych, ya right, I know you tryin to follow me
You’ve been
Disgraced in the space race, trying to save face after comin in second place,
Just enough to taste victory, chase history, ace Kennedy, but ya lost pace with your enemy,
and now you’re layin low, plottin’ for as long as we’ve known ya,
You hold you’re head up like Neil Armstrong didn’t pwn ya,
that secret space ride that you’re tryin to hide isn’t something I would publicize with any pride, I’ll tell ya why…

-Susan

The United States Are An It: How Big Government Nationalized Grammar

Posted on by
Reply

Via Language Log, here’s a neat article on how the U.S. went from a plural to a singular: Supreme Court Usage and the Making of an ‘Is’.

Immediately after the founding of the United States of America, it was standard practice to refer to the entity in the plural, as a grouping of states rather than a singular body. Then, by about the mid-1800′s, use of “is” or “are” became pretty much interchangeable, though the frequencies at which was more favored varied. You could even use both in the same breath if you wanted to, as displayed in an 1882 case: “[T]he doctrine [of sovereign immunity], if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the established rights of plaintiffs when the United States is not a defendant or a necessary party to the suit.”

areis

Today, anyone over the age of four stating that “the United States are located in North America” would be looked at funny, or possibly suspected of taking that whole states rights thing a little too far. Contrary to folklore wisdom, it wasn’t the Civil War that effected the change, but it was rather the result of a gradual semantic shift.

Only in the 1900s did the plural usage fade entirely from Supreme Court opinions. This comports with a contemporaneous account from a commentator in the Yale Law Journal, who observed in 1900 that “the plural use of ‘United States’ is gradually passing, under stress of the ever-increasing sense of unity in the national life.”

“The United States are” has only been seen in a Supreme Court opinion on two occasions since 1901, the last occurrence being in 1935. Unsurprisingly, the sole judicial hold out for the plural form, Justice McReynolds, was one of the Four Horsemen that fought valiantly against the New Deal and the federal tyranny of the commerce clause.

-Susan

The Website Theory of Statehood

Posted on by
3

Although the definition of statehood under international law has not been definitively resolved, traditionally, per the Montevideo Convention, “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” In addition, recognition of a state by other states arguably plays a more important role in the statehood process.

However, I would like to propose a new criteria by which the claims of would-be sovereigns can be evaluated. In today’s world, e-governance is rampant. Politicians stay in contact with their constituents via their homepages, agencies administer regulations online, and court filings can be done with the click of a mouse. So whether or not an autonomous region has a permanent, defined web presence that has the capacity to assist its governmental activities is a vital consideration when examining claims of statehood. So, using the Website Theory of Statehood, how do existing unrecognized states stack up?

Taiwan: Taiwan’s somewhat unique status in the “Is it or is it not a state?” debate makes it a good starting place to test the theory. Taiwan’s pseudo-official statehood is reflected in the fact that it has its own country code top-level domain, of .tw. However, ccTLD’s are poor indicia of statehood in themselves; they are distributed by ICANN, and substate regions can also be issued them, such as Jersey’s .je and the Virgin Island’s .vi.

Still, Taiwan starts off on a good note by displaying two strong hallmarks of internet statehood — numerous web domains for each different branch of government and the use of the .gov subdomain for its various state webpages. For instance, the president is located at http://www.president.gov.tw/en/, while the National Assembly is at http://www.na.gov.tw/en/index-en.jsp. (Bonus Trivia Fact from the president’s web page: What do the U.S. and Taiwan have in common? Both out presidents have law degrees from Harvard.)

None of the websites of the various Taiwanese government branches get particularly high marks for style, but they aren’t offensively ugly at least, and they amply satisfy all requirements for accessibility and content.

Verdict: Although Taiwan may not be a recognized sovereign under international law, it is a thriving Internet State.

Somaliland: Although Somaliland’s website is not nearly as sophisticated as the Transitional Federal Government of Somalia’s, Somaliland gets credit for the fact it actually operates from within its own territory. The prominently placed waving Somaliland flag image is annoying, but by itself, not particularly offensive. All in all, in terms of web design, it’s about on the level of a page created by a marginally talented middle school student.

Of course, the webmaster’s yahoo email address is a significant mark against a finding of web sovereignty. And although the fact it maintains a separate website for its Upper Parliament might have won it back some points, as the website does not appear to have been updated at any point in the past three years, it’s really more of a net loss.

Interestingly, the neighboring autonomous state of Puntland has a much more sophisticated web presence, although it is not seeking sovereignty but rather continues to maintain it is a part of Somalia. Aside from the annoying page intro, Puntland’s website is respectable and decent looking. It actually reminds me of the websites of several county governments from my home state of Georgia: clearly governmental in nature and reasonably active, but still small-time government.

Verdict: Not a state, but I’ll give them a solid E for Effort. Somaliland ought to seek advice from Puntland on how to manage its e-statehood.

Kosovo: The websites for the various government branches of Kosovo are all clean, sharp, and authoritative, with a faint air of bureaucratic staleness. In other words, they look exactly like what you would expect for a sovereign state government’s website.

Meanwhile, the website for the Serbian Government of Kosovo is, while passable, somewhat clunkier. More importantly, the dismal imagery and content of the site is all extremely negative in tone, focusing on pictures of bombed out buildings and emphasizing the fear, instability, and chaos of the region.

The contrast between the two certainly weighs in Kosovo’s favor. Kosovo’s website is professional and businesslike, and gives the impression that it is the model of responsive and diligent governance. In direct opposition to this is the Serbian website, which stresses its inability to control the region and is primarily concerned with advancing a political agenda rather than engaging in ah actual governmental capacity.

Verdict: Although the facts on the ground may be drastically different, in terms of its website, Kosovo qualifies for Virtual Statehood.

Cabinda: The wannabe sovereign territory of Cabinda, located in Angola, is a classic example of the self-deluded unrecognized state. Cabinda’s inability to exercise sovereign governmental control over the region is rivaled only by its complete incompetence at web design. Tiled backgrounds, flying bird gifs, scrolling text, spinning “email” icon, images unapologetically created by MS Paint? My god. I’d call this a sad excuse for a geocities webpage, but that would be a gross insult to Geocities webpages everywhere — Cabinda hasn’t even yet progressed past the Angelfire-level of web design.

Verdict: Does not meet even the most minimal of qualifications for Internet Statehood.

Western Sahara: The proclaimed government of Western Sahara has no access to a ccTLD, but .eh has been specifically reserved for the nation once it manages to obtain a unified voice. In 2007, the Sahrawi Arab Democratic Republic, the government that claims to speak for the sovereign territory of Western Sahara, tried to lay claim to the domain, but Morocco objected. As a result, ICANN refused to release .eh, stating that because of competing claims,

ICANN does not see a way to approve the .EH ccTLD delegation to one of the applicants without violating its long-standing policy unless the contesting parties are able to reach an agreement.

The Sahrawi Arab Democratic Republic still has a website, however: http://www.rasd-state.ws/

Note the .ws in the domain name. Now that’s actually a rather clever bit of statehood marketing right there. The .ws ccTLD is in fact registered to Samoa, although the Sahrawi Arab Democratic Republic is cleverly passing off the “ws” as standing for Western Sahara. Who needs .eh, the intended ccTLD for the nation you claim control over, when your Samoan buddies will lend you a domain name that sounds like it was actually meant for you?

Sadly, the website is in Arabic, which I don’t actually speak. The page gets medium marks: although it is simple, it manages to avoid being hideous, and I am reasonably confident that if I could read Arabic the site would be easily navigable. However, judging by the page URL’s (in Spanish, which I can pretend to read), the website does not provide anything in the way of government services, which is a mark against it. However, there do appear to be “official government documents” in PDF form, which gives it a little cred.

Verdict: Although Western Sahara’s separatist government displays some promising signs of Virtual Statehood, they are still a fair distance away from achieving internet sovereignty.

Abkhazia and South Ossetia: Aesthetically speaking, South Ossetia’s webpage is my favorite of all the unrecognized states’. It is official looking and professional in appearance, and yet still manages to be friendly and pleasantly warm and inviting. You’d totally want to vacation in a country with a website like that — they seem like such nice people. Also, it’s got snow leopards.

Abkhazia’s website is slightly more severe in appearance, comes across as a no-nonsense kind of nation, and may or may not have been a law firm before it decided to declare itself state. The blue-grey color scheme? The overlapping boxes lay out? That is seriously every D.C. small-to-medium sized law firm homepage ever.

Tellingly, however, both Abkhazia and South Ossetia lack their own ccTLD, do not have separate web pages for different branches of government, and do not employ the use of.gov subdomains.

But this doesn’t rule them out entirely. One major point in the break-away regions’ favor is that their websites far outclass Georgia’s websites for the region. Just take a look at Georgia’s Abkhazia homepage: http://www.abkhazia.gov.ge/. It is ugly, slow to load, and contains graphics that appear to have been created by the same MS Paint artist that provided the images for Cabinda. Most of the English language pages are labeled “under construction,” and I’m honestly surprised they didn’t also include those little animated gifs of smileys wearing hard hats to show that. South Ossetia doesn’t even appear to have a .ge website that I could find, perhaps because Georgia revoked South Ossetia’s autonomy? At any rate, not having a web presence for it at all is a dismal way of showing your Internet Sovereignty over a region, Georgia.

Verdict for Abkhazia and South Ossetia: Have not yet achieved Internet Statehood, but are clearly serious contenders for the title. Recommend that Georgia take immediate steps to overhaul its own websites for the regions in order to firmly establish its claims of sovereignty.

Nagorono-Karabkh Republic: The website for the Nagorno-Karabkh Republic contains flashing banners and animated .gif files. This is an instant disqualification for statehood.

Verdict: Not a state. True sovereigns avoid anything that might induce epilepsy in their web visitors.

North Korea: Under International Law, North Korea is a recognized nation. However, under the new Website Theory of Statehood, North Korea should be considered a failed state. This may sound harsh, but given that the Admin of the website acknowledges that there is no internet access in North Korea and that no one in North Korea can actually see their own website, and that therefore the only people who use it are foreign North Korea enthusiasts, www.korea-dpr.com actually has more in common with a Beanie Babies fansite than it does a government webpage.

Although the website does at least exist and is moderately functional, it appears that a 13 year old goth boy was hired to design it. Sadly, the forum that was once featured on the site has since been removed. Apparently a web forum was too democratic for North Korea, as the old forum was replaced by a blog, which announced the change by stating: “Today we launch the new KFA Forum, which will mainly be driven by a few select moderators. Of course, everyone can still contribute with their thoughts, ideas, articles, etc, but we’ll be sure to have much more quality content for you.” In other words, the proletarians were not generating enough ‘quality content,’ so a more restrictive approach was adopted for their own good.

Notable features of the site include a FAQ, with helpful answers to questions such as, “Is North Korea a Dictatorship?”, “Is it true everyone in North Korea is starving?”, and “How can I join the North Korean army?”

Verdict: Not a state. I don’t care if the United Nations recognizes North Korea; when Transnistria, Puntland, and Nagorno-Karabkh have better web presences than you do, your statehood is officially revoked.

-Susan

Can you reuse a stamp from a mailed letter that did not get postmarked?

Posted on by
4

Sadly, no.

I was guessing that would be the answer, but I figured it was worth checking. For some reason, the stamps on the DadMail I receive seem to go unmarked by the post office an unusually high percentage of the time. I received a letter from him today with four forever stamps on it, all unmarked, which seemed like a waste. So I wondered… I don’t suppose I could scrape those off and slap them on another letter?

According to 18 U.S.C. § 1720, paragraph 3,

Whoever knowingly uses in payment of postage, any postage stamp, postal card, or stamped envelope, issued in pursuance of law, which has already been used for a like purpose—
Shall be fined under this title or imprisoned not more than one year, or both[.]

So it looks like the Post Office is way ahead of me on that one.

But now here’s another question. I am reasonably certain the letter my dad sent me was not nearly heavy enough to warrant four stamps. I’m pretty sure it could have gotten by on two. If I were to go to the trouble of weighing it and checking the requirements, and found two of them were in fact not needed, would it be a violation to use just those two? Tragically, I think even the unnecessary stamps are now forfeit, as “which has already been used for a like purpose” suggests yes, their use for the purpose of mailing — even if the use was not required — now makes them tainted.

And anyone else remember hearing about that old trick where you write the receiver’s address in the sender space, and the sender’s address in the receiver space, so that when you don’t attach any postage it gets “returned” to the intended recipient? I wouldn’t exactly recommend trying it, but it looks like that’s only punishable by a fine under 18 U.S.C. § 1725. Although I am sure there is a fraud statute lurking out there you could tag that under as well.

-Susan

The Nobel “[Aspirations of] Peace” Prize

Posted on by
1

The world is abuzz about Barack Obama’s Nobel Peace Prize, which was awarded this morning.  Even those who support Obama recognize that the award has come pretty early in the game, before we’ve seen many concrete results.  The Nobel committee admitted as much in its explanation of why it gave the prize to Obama:

In response to questions from reporters in Oslo, who noted that Obama so far has made little concrete progress in achieving his lofty agenda, committee chairman Thorbjoern Jagland said he hoped the prize would add momentum to Obama’s efforts. At the same time, Jagland said, “We have not given the prize for what may happen in the future. We are awarding Obama for what he has done in the past year. And we are hoping this may contribute a little bit for what he is trying to do.”

Jagland specifically cited Obama’s speech about Islam in Cairo last spring, as well as efforts to address nuclear proliferation and climate change and use established international bodies such as the United Nations to pursue his goals. The committee — made up of luminaries selected by the Norwegian government — noted a profound shift in American policy and said Obama had “created a new climate in international politics. Multilateral diplomacy has regained a central position, with emphasis on the role that the United Nations and other international institutions can play.”

I think the most disappointing part about this whole thing is what it says about the prospect of peace in our world.  If we’re handing out awards to people who have merely expressed a willingness to engage the international community (rather than actually doing anything of substance on the international sphere), we’ve essentially conceded that the chances of anyone doing anything that will advance peace in any tangible sense is hopeless.  The Obama Nobel is essentially an award of “A for effort,” because no one else even seems to be trying.

By the way, I hope to work towards a new approach to economics that allows for economic redistribution while entirely avoiding inefficiencies.  I’ll take my Nobel Prize in Economics now.

Update:  I never thought I’d link to him, but here it is: David Bernstein’s “Top Ten Reasons Why Obama Won the Nobel Peace Prize“.

Update Again:  The Economist explains how the Prize has been given out for aspirational reasons before, but agrees with me that the award should go back to its original premise: rewarding people who have actually (already) helped acheive peace.

I see your dissent, and raise you a re-dissent.

Posted on by
4

I was trying in my last post to stick mostly to issues of remedy in the hypothetical world where a violation is assumed, because Establishment Clause jurisprudence ain’t my forte, but I’ll try and respond a little. (Except respond in that wishy-washy way where y’don’t actually cite many laws because y’don’t actually know that many…)

First off, hey, I am more than happy to abandon Lemon. To quote dear buddy Nino, “As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and [government] attorneys.” If the one thing to come out of Salazar is a final stake through the Lemon test’s heart, that wouldn’t be too shabby.

But Scalia lost me a bit during the oral arguments yesterday, with his apparent bafflement with the idea that a cross might somehow not represent everyone. If you want to test that theory, just imagine a national monument to veterans that was a Wiccan symbol — and watch the fur fly and howls of fury ring out.

A cross is Christian. I do feel there’s ample leeway for crosses under the First Amendment when, like Argonne, a cross is erected — specifically at the time it was created — as a deliberate memorial to war, but there is some serious retconning going on with Sunrise Rock. And this is where I really agree with Buono — it is not the cross per se that is so offensive, it is the strong arm tactics that prevent the display of any other religion. As for the MLK Jr.’s church example, that would not be at all problematic, because the history there makes it abundantly clear that the governmental intent would not be promotion of any particular religion. The same can just as adamantly not be said to be the case for Sunrise Rock, where legislative protection has never been prefaced as anything other than protection-of-a-cross-because-it’s-a-cross.

And I’m not really sure Kagan was right about that when she said during the oral arguments that the VFW was free to change the speech, but I can’t find the article I was reading yesterday that covered that in more detail, so maybe I’m the one mixed up. (And if she is right, the government made a serious error. What if the VFW turned it into “a monument for the dead killed by the traitorous U.S. government on 9/11″?)

What bothers me most about the whole deal is the blatant bad faith of the government in all of these instances. I don’t think it’s really arguable that:

1) The overwhelming majority of these cases involve the government defending Christian symbols and refusing to allow the display and placement of non-Christian symbols; and,

2) If the Sunrise Rock cross had not specifically been a “cross,” Congress would not have wasted so many man hours writing new laws to defend it.

The fact the government can do this over and over and over again and then still put on the innocent act and breathlessly proclaim, “Oh! But it’s not about Christianity! It’s just about the memorial and our heritage!” every time it gets litigated bothers the hell out of me. And the bad faith in Sunrise Rock is even more apparent — this whole issue started up because they wanted to avoid having to let other religions also be displayed in the park. “Bad faith” almost doesn’t go far enough in describing the government’s tactics — they aren’t being subtle about their promotion of Christianity and they don’t even care.

To summarize: The government cannot weasel its way into promoting a particular religion by abusing loopholes, engaging in legislative creativity, and bending over backwards to escape black letter restrictions that prohibit the substance of what they are doing.

(And to clarify that statement a bit — no, I do not believe there is any “conspiracy” or deliberate intent to do this. It’s just the result of a series of unconnected acts by a largely-Christian legislative branch which results in an emergent pattern of Christian favoritism. But that doesn’t make it okay.)

As for the standing, I’m completely with you, and I think I may have came across more strongly than I truly feel. (Although the “is standing really-truly jurisdictional-in-the-classical-sense, particularly when its prudential” line of thought is an awesome subargument all in its own I might address later…) Still, what would happen in a case where the government did blatantly establish a religion? But in such a way as to not directly infringe on anyone else’s rights to practice? The injury would resemble some version of “mental distress” or “offended sensibilities,” but I don’t think it should be dismissed solely on that ground. We proved from Roe v. Wade that we can invent new standing tests when faced with sui generis injuries that don’t quite pass the standard test, and there are already allowances on tax payer standing when it comes to religion. So I think a reasonable argument can be made to recognize a different set of injuries that can provide for standing in the Establishment Clause context. “I’m offended” is never sufficient, but something more along the lines of “I am severely offended, and the Constitution protects me from having my religious sensibilities trampled on by the government in narrow situations that involve the state promotion of religion.” Only written so it sounds prettier.

-Susan

Sorry, Susan, I Humbly Dissent

Posted on by
Reply

I want to be careful not to say too much because my firm may have a dog in this hunt (and I DO NOT speak for my firm).  Nevertheless, I couldn’t let a few things go without noting:

  1. First, the government didn’t construct the cross, the VFW did.  And I think you’re being a bit disingenuous when you leave out the secular purpose of the cross: it’s a war memorial.  I don’t think the mere inclusion of religious icons in a memorial necessary defeats its secular purpose.  To use an example General Kagan used, for instance, it would not seem to pose an Establishment Clause problem if Congress declared Martin Luther King, Jr.’s church in Atlanta national memorial.  (And, by the way, in order to adopt your expansive interpretation of the Establishment Clause, the Court would have to abandon the Lemon test.)  If the use of religious symbols in memorials is always problematic, we’re going to need to start digging this memorial up, too.
  2. Second, the VFW would be free to “change their speech.”  As General Kagan explained, the government’s right to reversion is triggered only if the VFW stops using the land for a memorial.  They are free to change the memorial, like putting up a big sign that says, “We Don’t Need No Stinkin’ Germans,” so long as it can still rightfully be called a memorial.
  3. Finally, I think we need to be really careful when we suggest that there’s a lower standing standard in certain cases.  As an initial matter, that seems to abrogate the idea that standing is jurisdictional.  That idea is already under attack (at least judging from the oral arguments of the case) by the principle that the Government somehow “waived” standing by not raising it sooner.  But more importantly, although I hate the slippery slope argument, don’t we have to worry about that in this situation?  Do we really want cases where someone can say, “I’ve never been there, but I heard about this situation in X State where the government is doing something I don’t like, so I’m going to sue”?

-Michael

Japanese Women May Gain The Right To Keep Their Names

Posted on by
2

I was reading about the recent electoral victory of the Democratic Party of Japan and the increase in the number of women in the Diet, when I came across this startling fact.

Japan’s government plans to submit legislation as early as next year to allow married women to keep their maiden names, the Yomiuri newspaper reported, citing unidentified government officials.

The bill will enable married couples to use separate surnames and children will be able to choose the surname of either parent, the Yomiuri said.

The change will make it easier for women in the workplace as more married females take up employment[.]

I wouldn’t have guessed there’s a first world country around today where women literally do not have the option to keep their real name and also get married. After poking around some more, it appears that the law doesn’t actually mandate women change their name to their husband’s, but that the couple must both choose the same last name. So, 97% of the time, it’s the man’s name.

This issue has apparently been kicked around before. Although in 2002, 65% voted in favor of abolishing the prohibition,

[T]raditionalists have roared back, arguing that allowing two-name families will promote excessive individuality, encourage the complete dissolution of the family and even create misunderstandings at mailboxes and gravestones.

“I understand it’s inconvenient for working women to change their surnames mid-career, but we should continue the existing system to avoid confusion and to give a good example to children,” said Sanae Takaichi, an LDP lawmaker. “Dual surnames are not part of Japanese culture.”

Of course, although maintaining the right to choose your own name despite being married would be a nice step, gender equality in Japan faces many other roadblocks:

Japan ranked 91st out of 128 countries in the World Economic Forum’s annual ranking of gender-equal countries presented on Thursday, the lowest ranking among all high income countries except for South Korea and five Middle Eastern countries.

-Susan

Standing, Remedies, and Establishment Clause Violation Through Disparate Impact

Posted on by
3

Out of guilt from shooting down my co-blogger’s noble campaign to get me to go to the Salazar v. Buono hearing this morning (I am sorry, but I do not get out of bed at 5:30am for the Establishment Clause), I figured I’d make up for it by at least writing a little about the case.

If you want to know more about Salazar, check out Scotuswiki’s write up, but, in brief: smallish cross on federal preserve, National Park Service decided to take it down, Congress forbid the use of any federal funds in taking it down, Buono sued under the Establishment Clause, court agreed with Buono, cross was put in a box, Congress sold the land the cross was on to a private group, government alleges that fixed any problem, Buono kept suing alleging that the transfer was invalid, district court ageed, Ninth Circuit agreed, now they argue about it before SCOTUS.

The mere selling off of the property doesn’t fix things by itself. The federal government maintains some control over the cross still as they designated the cross a national memorial. One of only 45 in the U.S. It’s pretty clear Congress took special measures to save the monument because it was a cross — no one could in good faith believe they’d take such attentive care of it has it been depiction of Ganesh. Moreover, government ownership or non-ownership of the monument is not itself dispositive — in last term’s Summum decision, Judge Alito noted that “persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf . . . . This is true whether the monument is located on private property or on public property, such as national, state, or city park land.”

Besides, a general hallmark of private speech is the ability to change the content of your speech or to cease speaking all together. The owners of the Sunrise Rock Cross have no such ability. Under 18 U.S.C. §1369, they would apparently be committing a federal crime if they tried to change or destroy the monument. So it’s not really “private” speech if the government is requiring the speech, on penalty of imprisonment.

But ignoring the merits for now, I want to take a look at the procedural issues. On appeal, the government is raising two issues: first, that Buono lacks requisite standing as his harm is “ideological” rather than “religious,” and second, Congress’ transfer of the land the cross is on to a private party successfully remedied any constitutional problems that had existed.

mojavecross1The standing issue is actually pretty interesting, especially Buono’s arguments that the court lacks jurisdiction to hear Salazar’s argument that Buono lacked jurisdiction. Buono alleges that (1) If the government wanted to appeal the standing issue, it had to do so within 90 days of Buono I (2004), which they did not, and (2) Anyway that claim is barred by res judicata. As for the merits as to standing, basically, in these lines of cases, plaintiffs’ allege injuries that boil down to some version of “but it hurts my feelings.” Offended sensibilities normally do not provide for standing, but in the context of the Establishment Clause, a lot of the time offended sensibilities truly are going to be the biggest injury suffered — so if “offense” isn’t particularized enough of an injury, a huge chunk of EC violations will be immune to review.

But let’s say we get through all the procedural arguments, hear it on the merits, and Buono wins. What is his remedy now?

One issue arises from what Buono himself alleges the harm to be. Buono, a Roman Catholic, has specifically stated he has no particular objection to the displaying of religious symbols on government property, he just thought that the preserve should be open to displays of all faiths. (A Buddhist group requested and was denied permission to put up their own monument in 1999). So the most straight forward remedy to Buono’s injury wouldn’t really be simply chucking out the old monument, when in itself its not causing the harm.

So conceivably it could be remedied by simply allowing any religious group that wanted to put up a monument to do so. Now, this is Not Going To Happen. Once people from kooky sects all over the place start showing up asking permission to put up their monument of their god, which just happens to resemble sexually explicit imagery/depictions of Jesus as a cyborg/Prince Philip, Duke of Edinburgh, they will quickly reach a decision to remove all religious imagery rather than allow any. (Mojave has 1.6 million acres — you can fit a lot of religious paraphernalia in there if you were going to allow that.)

And I don’t think the Court would find (assuming again the Court manages to wade through all the standing issues to get there, which is doubtful) that any Establishment Clause violation is fixed simply by removing all further government interest in the monument, such as its designation or the federal ability to continue to regulate it. The major issue is that the cross strongly appears to be government endorsed speech, removing a few additional government entanglements won’t solve that. So the remedy would be to remove the cross.

Now, although the land was sold off, the government still maintains a number of interests in the cross, including a property interest in the possibility of reverter, which was provided for under the bill that decreed the land transfer, § 8121. Ignoring how this concerns the merits of the case, how might this it affect any possible remedy assuming a violation is found?

In Salazar, that’s all pretty clear. The district court enjoined the actual land transfer, even though the “mechanics” of it were completed, so the Supreme Court could simply uphold the injunction. Even if the sale could not be enjoined, thanks to the cross’s status as a monument, there are a number of other ways the government could be ordered to take back control of the land and remedy the violation. From the Ninth Circuit’s opinion,

Even if the land were transferred under § 8121(a), it may revert to the government under § 8121(e), or as provided in other statutes. In particular, we noted that 16 U.S.C. § 431 authorizes relinquishment of lands containing “national monuments” to the federal government, and 16 U.S.C. § 410aaa-56 authorizes the Department of the Interior to “acquire all lands and interest in lands within the boundary of the [Mojave] preserve by donation, purchase, or exchange.”

But what about in a case where this isn’t clear cut? I don’t know enough about this area of law to predict what would happen, but it seems to me there are some seriously thorny issues that could arise here, in a similar case where the transfer is not enjoinable and there are no other statutes that can be used to get it back.

What’s to stop the government from building a couple dozen giant statutes on various federal lands that declare “Ahura Mazda is Our Lord”, and then selling off all the patches to private bidders? Assuming all the formalities of the sale are complied with, fair consideration is given by the private party, etc., what remedy would even be available? Would there now be a Takings Clause issue, if the government were ordered to take the land back and take down the Ahuras? What if the properties have changed hands a few times since the initial transfer? Or it had been twenty years? Or if the new owners “promised” to take down the monuments, but kept randomly putting them back up from time to time? I think this is my primary issue with the government’s case in Salazar: it proves too much. And trying to fix any mess created would not be a simple task.

Finally, for a brief note on the actual merits–

Cases like Salazar are fairly frequent, and the vast majority of them involve the government displaying Christian symbols and refusing to allow non-mainstream-Christian faiths to display their own. The pattern is unmistakable — the government will defend to its last legal breath its ability to display indicia of adherence to the Christian faith, but not any other symbol of religious worship. It’s the pervasive pattern, rather than any one odd cross up on a hill somewhere, that causes the Establishment Clause concerns. No, the Sunrise Rock Cross does not in itself a threat to religious liberties or the First Amendment, but the disparate impact of the government’s choice in which monuments to defend is itself a violation of the Establishment Clause.

-Susan

Confession

Posted on by
2

Look, there’s something I’ve been keeping a secret, but I feel in my heart that now is the time to come clean. I just can’t remain silent any longer.

I wrote “Obama’s” book, Dreams of My Father.

Yeah, I know, I was 9 when it was published. I’m kind of a prodigy. But if you’re reading this blog, you obviously already knew that.

-Susan