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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