Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument

In 2013, the city of Glendale, California created a monument to "comfort women" — women of various countries sexually enslaved by the Imperial Army of Japan during World War II. Back in 2014 I wrote about a lawsuit brought by Japanese-Americans against the City of Glendale in which the plaintiffs claimed that Glendale's commemoration violated the Constitution's Supremacy Clause because it interfered with the still-sensitive and still-controversial (to the Japanese, anyway) subject of Japanese war crimes. I wrote about a federal court's dismissal of the lawsuit later in 2014, and Marc Randazza piled on and questioned the recent provenance of the entity created to be one of the plaintiffs. I maintain my position that the lawsuit was one of the most repulsive I remember seeing.

During the summer, there was an update — the U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of the lawsuit. The decision is here.

The Ninth Circuit didn't agree with the trial court about everything. For instance, the appellate court concluded that the plaintiffs had standing — that is, a sufficient stake in the issue to be qualified to challenge the City of Glendale's actions. The trial court concluded that the plaintiffs had not demonstrated standing by alleging that their enjoyment of Glendale parks was disrupted by the presence of the comfort women monument; the Ninth Circuit — relying in part on environmental and Establishment Clause cases — decided that the statement of offense and interference with enjoyment of public spaces was enough.

After that, though, the plaintiffs and the Ninth Circuit parted company. The appellate court agreed with the trial court that the City of Glendale's commemoration of a historical event did not interfere with the United States' foreign policy and did not violate the Supremacy Clause. The court distinguished cases in which states have enacted remedial schemes aimed at foreign policy, like bans on trading with particular nations or a statutory plan to recover art stolen by Nazis during World War II:

Moreover, in contrast to state actions we have found preempted, Glendale has taken no action that would affect the
legal rights and responsibilities of any individuals or foreign governments.

The comfort women monument, by contrast, was expressive:

These purposes—memorializing victims and expressing hope that others do not suffer a similar fate—are entirely consistent with a local government’s traditional function of communicating its views and values to its citizenry.

This was the right result. Any other would prevent local governments — and by extension their citizens — from expressing themselves on historic matters. In a post-factual world, uttering the truth steadfastly becomes even more important. Imperial Japan sexually enslaved women. If they don't like that being said, tough.

This firm rejection by the Ninth Circuit renders moot my previous speculation on the ultimate endgame of the forces behind this lawsuit. I will note, however, that one of the original attorneys on the case has litigated on behalf of Turkey and Turkish entities using the same Supremacy Clause argument. Glendale, and its environs, have monuments recognizing the Armenian Genocide. Turkey, and Turkish interests, would prefer those monuments and official recognitions did not exist. If that was the long game, it has been thwarted now. But the fight to tell the truth about history does not end.

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Comments

  1. E.P. says

    As much as I am pleased with the outcome here, I can't help but roll my eyes at the prospect of Glendale, California raising a monument in regret at someone else's sins. It just comes off as tacky to me. I'd rather see Japan raise the monument. I'm sure California can think of SOMETHING they've personally done wrong if they try hard enough.

  2. ketchup says

    I can't help but roll my eyes at the prospect of Glendale, California raising a monument in regret at someone else's sins.

    That is an interesting philosophy of monument-building. It would mean that only Timothy McVeigh could construct a monument to the Oklahoma City bombing victims, and only Germans could construct a Holocaust Memorial. I think you are missing the point – the monument is about the victims, not the perpetrators. The Ninth Circuit seems to agree:

    These purposes—memorializing victims and expressing hope that others do not suffer a similar fate—are entirely consistent with a local government’s traditional function of communicating its views and values to its citizenry.

    Yes, the existence of victims certainly implies the guilt of the perpetrator, but the primary focus of the memorial is on the victims, not the 'sinner'.

  3. CheshireLion says

    If you built a memorial in a city park for the blueberry muffin, someone would be offended. Such is our world now.

  4. E.P. says

    I am not missing the intended point, simply stating that from my viewpoint it comes across poorly. I may just be in a particularly cynical mood today.

  5. NELSON kERR says

    Japan will not raise a monument because a majority of the Japanese pubic and the clown currently running it think that Japan was the victim in WWII and that the comfort women entered slavery willingly.

  6. Adam Pierce says

    Is it the traditional function of local government to communicate ITS views and values to the citizenry? Can government even have views and values? I am for free speech but I'm not convinced that free speech produces a comprehensible claim in this case

  7. Michael 2 says

    "are entirely consistent with a local government’s traditional function of communicating its views and values to its citizenry."

    Provided, however, that the local government's views do not overlap with that of Christianity (Comfort women monument, approved; 'you shall not kill', verboten). It can overlap with almost any other value system I suppose. I wonder if 8 commandments (just not all 10) would pass muster?

  8. Mike B says

    @E.P.

    As much as I am pleased with the outcome here, I can't help but roll my eyes at the prospect of Glendale, California raising a monument in regret at someone else's sins. It just comes off as tacky to me. I'd rather see Japan raise the monument. I'm sure California can think of SOMETHING they've personally done wrong if they try hard enough.

    That's a pretty interesting take on the concept of memorials and monuments. I tend to interpret memorials as something that memorializes the victims not the alleged offenders, and I'm fairly certain that's how the overwhelming majority of people tend to interpret them as well. Last time I checked nobody considers any of the various war memorials to fallen soldiers to be monuments to the sins of the opposing forces. If you're going to the Vietnam Veterans Memorial or the Holcaust memorial in DC and thinking the message is "the viet-cong and hitler were bad" I don't think you're taking it in the correct light.

    At the end of the day the memorial for comfort women was about the women and their suffering, not Japan and its offenses. Well, it was at least until people ostensibly defending Japan's position on it made it about Japan.
    As far as the notion of a monument raising in Japan. Please don't hold your breath on that one. Official opinion from Japan has ranged from "not a big deal" to "it never happened / they agreed to it" and as such things tend to go, the citizenry's views aren't much different.

  9. Friendly Neighborhood Zionist Boogeyman says

    @Michael 2, seriously dude? First of all, the "Ten Commandments"* are not primarily Christian, they are Jewish. Secondly, do you really think that, say, a Jewish religious monument would pass muster? Some other quote from the Torah, like maybe Deutoronomy 25:17-19 (tl;dr version: "Thou shalt genocide this particular group of fuckers")? How about some commandment from the Quran?

    If it's a quote from anybody's holy book(s), it probably doesn't belong on a (US any-level-) government monument. There might be exceptions, but it's a good starting point.

    *"Ten Commandments" is a poor name because there aren't ten of them – the "First Commandment" is a statement, not an imperative. Also, "thou shalt not kill" is a terrible translation. It's better rendered into (that style of) English as "thou shalt not murder".

  10. Encinal says

    @Friendly Neighborhood Zionist Boogeyman

    I'm not sure we should be feeding the troll. There's nothing wrong with the government expressing opposition to murder, what is objectionable about the government endorsing the ten commandments is that the commandments demand adherence to religious rules. Claiming that merely "overlapping" with religious views is sufficient to make speech unconstitutional is so lacking in good faith that it's clear that Michael isn't here to have a discussion, he's here to spew bigoted bullshit.

  11. Malc says

    @Encinal,

    As you note, Michael isn't here to discuss anything, but rather to violate the 8th/9th commandment, the one on bearing false witness (in this case, by being a deceitful little b*gger).

  12. Anon says

    "Here's the video of the hearing"

    Yikes. That tie (worn by the plaintiff's attorney) is so … unsettling. It's like it's watching me, especially during those oddly-lengthy moments of silence.

  13. Michael 2 says

    Let us examine York, Pennsylvania. It has been a hotbed of controversy for a long time, with constitutional challenges to its abstinence-only programs because of their church sponsorship. [http]://www.ncsse.com/index.cfm?fuseaction=Page.ViewPage&PageID=1046

    You shall not murder, unless of course you are wearing a military uniform which I did for 20 years. To be sure, Rules of Engagement exist that make it not murder (it's still killing).

    As for the Koran or Quoran or Quran,
    "Required Reading on Koran Provokes Bitter Battle"
    [http]://articles.latimes.com/2002/aug/17/local/me-quran17

    It is pretty clear to me that some selectivity exists as to what is proper for local governments to memorialize. I am mostly libertarian and if this government wants a monument to comfort women and that one wants 10 or 12 or 1000 commandments, so be it.

  14. M B says

    @E.P. Actually, Glendale (and the LA county) has a pretty substantial Korean population, and they wanted the statue.

  15. says

    @Adam Pierce

    Is it the traditional function of local government to communicate ITS views and values to the citizenry? Can government even have views and values?

    Yes, they always have. Vice laws, and their exceptions are a direct expression of government values, and if you look at the intent or findings statements in some of the legislation that establishes the vice laws it can become quite explicit.

    It gets even more explicit when small units of government adopt non-binding resolutions that are essentially editorials. For instance, San Francisco recently passed a resolution condemning many of Trumps plans.

  16. Guy who looks things up says

    I am mostly libertarian and if this government wants a monument to comfort women and that one wants 10 or 12 or 1000 commandments, so be it.

    Replace "libertarian" with "statist" and that sentence makes sense.

  17. Encinal says

    @Michael 2

    Let us examine York, Pennsylvania. It has been a hotbed of controversy for a long time, with constitutional challenges to its abstinence-only programs because of their church sponsorship. [http]://www.ncsse.com/index.cfm?fuseaction=Page.ViewPage&PageID=1046

    In a surplus of charity, I not only was willing to examine your link, presented in a manner clearly purporting to be a cite for your claim, but to rectify your bizarre formatting (do you think that putting brackets around "http" does something?). However, your link is not to the alleged controversy about the program, but a link to the program itself. So the link not only does not support your explicit claim that there is a controversy, let alone your implicit claim that it the opposition was ill-founded, but it also shows either your mendacity in pretending it does, or your incompetence in following basic standards of internet discussion. Making a claim, then immediately presented a link, when that link does not support that claim, marks you as a person not worth having a discussion with.

    Also, regardless of whether it has church sponsorship, that program should not be receiving government funds, on the basis that the taxpayer money shouldn't be going towards horrific webpage design. I have the feeling that the person who designed it did so for a particular resolution/window size, in complete disregard for the fact that website are supposed to not be dependent on such variables.

  18. Sacho says

    Does anyone know similar sources like the one AP linked, where courts make their hearings publicly available online?

  19. Michael 2 says

    Encinal writes "do you think that putting brackets around http does something?"

    Yes.

    "Making a claim, then immediately presented a link, when that link does not support that claim, marks you as a person not worth having a discussion with."

    And yet here you are doing just that ;-)

    It was the best I could find on the moment. The example I had in mind was "pre-Google" and consequently would take more digging than necessary for an anecdotal point. What I notice is that people tend to be rather squishy when it comes to principles they defend or attack and it isn't always obvious to me what is the hidden factor that suddenly justifies what you previously attacked; or attack what you previously justified.

    The obvious example of that sort of thing is "inclusion" and "equality"; inclusion typically leaves out white anglo-saxon protestants. They are not included. "Equality" — now there's a thing that cannot even be defined; how shall anyone know when it is achieved? What then? Well, then it suddenly becomes justified to seek advantage. Those that are behind want equality until they have it, then suddenly they remember the American Dream of getting ahead.

    "on the basis that the taxpayer money shouldn’t be going towards horrific webpage design."

    Or public art that lacks universal appeal, a more egregious example of which is "Piss Christ".

    A comfort women monument featuring a Korean would would be better in Korea, I think, rather than the United States. Holocaust museum was mentioned; if it weren't for "deniers" then perhaps it would be better to not have such things OTHER THAN where the events took place where it is entirely proper and worthy. If a large contingent of AMERICANS denied the existence of comfort women, then perhaps a reminder on American soil would be appropriate. But where this topic doesn't seem to be in dispute it isn't clear that the benefit exceeds the side effects.

    Suppose I join the Catholic church. Does that suddenly tarnish me with the old practice of the Spanish Inquisition or the sale of indulgences? It ought not, but in the minds of many, I become guilty of every sin since humans obtained language arts, the moment I join a church, any church.

    So it is that a monument to *past* sins of the Japanese will produce consequences on modern Japanese because so many people simply do not judge you for yourself, but for your associations past and present.

    "I have the feeling that the person who designed it did so for a particular resolution/window size, in complete disregard for the fact that website are supposed to not be dependent on such variables."

    A moment of silence for a rare agreement! Web pages should flow; they are not "pages".

  20. Encinal says

    @Michael 2

    Encinal writes "do you think that putting brackets around http does something?"

    Yes.

    What?

    And yet here you are doing just that ;-)

    How so?

    The obvious example of that sort of thing is "inclusion" and "equality"; inclusion typically leaves out white anglo-saxon protestants.

    There's a rather large pattern of complaints about the treatment of "white anglo-sexon protestants" being complaints about them no longer being afforded the special privileges they once had.

  21. Cromulent Bloviator says

    A monument to blueberry muffins would be totally unacceptable unless the park is also open for the placement of monuments to spaghetti.

    And it would attract ponies, which are a public health hazard.

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