How Do You Solve a Problem Like Scalia, Again?

Yesterday's oral argument in Salazar v. Buono demonstrated that Justice Scalia's onetime sensitivity to First Amendment values (remember Texas v. Johnson, 491 U.S. 397 (1989) has disappeared into thin air. Rather unbelievably, the choleric Justice chastised a lawyer for advancing the "outrageous" proposition that a cross might not be seen by Jewish veterans as an appropriate memorial for their service:

Mr. Eliasberg said many Jewish war veterans would not wish to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.”

“What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom.

Justice Scalia grew visibly angry. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead,” he said. “I think that’s an outrageous conclusion.”

According to Tony Mauro, "[i]n the audience, several people were offended by Scalia’s comment about the cross as 'the most common symbol' for the dead, said lawyer Jeffrey Pasek, who authored a brief against the constitutionality of the cross for the Jewish Social Policy Action Network. 'A lot of people were surprised at the insensitivity of that comment,' Pasek said."

I'm actually just finishing up Martha Nussbaum's fine study of the Establishment and Free Exercise Clauses, Liberty of Conscience (2008), and one of her major points is that the creation of an "in-group" whose orthodoxy is treated as normative, "even if not coercively imposed, []is a statement that creates an in-group and an out-group. It says that we do not all enter the public square on the same basis: one religion is the American religion and others are not. It means, in effect, that minorities have religious liberty at the sufferance of the majority, and must acknowledge that their views are subordinate, in the public sphere, to majority views." Id., at 2.

In brief, that is exactly why it is Scalia, not Eliasberg, who made an "outrageous" statement in the oral argument. Back in 2006, I posted an entry raising the question of Scalia's increasingly emotional, self-interest referencing jurisprudence. I did not find that an easy post to write, as I had previously respected Scalia for what seemed to me to be a sincere effort to build a jurisprudence of originalism--as exemplified by his concurring in Texas v. Johnson, above. But here, he is turning the Establishment Clause upside down, denigrating not just its text but its intent--and damning as "outrageous" all those who point out that the Cross, the supreme symbol of his own Catholic faith, is not universally emblematic of all faiths, especially the Jewish faith, with which it has, at best, a rocky history.