Scalia, Empathy, and Crayons

This week, the Supreme Court heard arguments in Salazar v. Buono, a case involving the display of a cross on top of Sunrise Rock in the Mojave National Preserve, which is federal property. (People For the American Way Foundation joined an amicus brief in this case filed by Americans United for the Separation of Church and State and other religious and secular non-profits).

By now, you've probably read about Justice Scalia's angry response when a Jewish lawyer had the audacity to point out that Jews don't use Christian crosses to honor their dead.

Mr. Eliasberg [the ACLU Foundation attorney] 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."

When I read this, my mind immediately went to … crayons. Yes, crayons.

When I was five, I had a somewhat peach-colored crayon that Crayola called "flesh." I'm white, and the crayon was close to my own skin color. It didn't occur to me that Crayola was assuming that all people are white. I didn’t need to think about it – After all, I was part of the majority. Later on, of course, I realized how this nomenclature marked African Americans as other, as outsiders in our society.

But not everyone who is a member of the in group has the capacity to understand what it is to be on the other side. Justice Scalia certainly doesn't.

For Justice Scalia, the cross has never had anything but positive connotations. From the perspective of his life experience, how could a cross grave marker be anything but an honor?

But in the history of America, Jews and other non-Christians have experienced the cross at times as neutral, and at times as a symbol of exclusion and persecution. Yet when someone points out that Jews do not see the cross as a symbol of honor, Justice Scalia gets angry.

In analyzing how the law impacts people, a wise judge considers people who are different from himself. A wise judge has empathy. Justice Scalia has none.

PFAW