It’s About What The 1st Amendment Should Mean

James Croft perfectly makes a few points about American Atheists’ and Freedom From Religion Foundation’s criticisms of the proposed Holocaust memorial using the Star of David:

Even if there was a constitutional problem with the memorial, I would argue that that would represent a problem with the our interpretation of constitution, and not with the memorial. I  do not believe that we should seek a form of secularism in which the government cannot memorialize victims of an attempted genocide by using a symbol of the oppressed people simply because that symbol has a religious meaning.

If we were to imagine a genocide in which the victims were entirely members of one religious group – let’s imagine a religious group which is not also an ethnic group, to make the thought experiment clear – I would consider it entirely legitimate for the government to memorialize that event by funding and building a monument which prominently displayed the symbol most closely associated with that religion. Memorializing an event which is closely related to a religion by using the symbol of that religion is not the same as promoting that religion, and the state has a legitimate secular interest in educating about past atrocities for the purpose of encouraging ethical consideration and development.

Ultimately, while I want to live in a secular society, I also want to live in an intelligent, thoughtful, historically-literate society which is capable of recognizing the difference between promotion of religion and memorialization of an atrocity. In this instance, the historical context of the Star of David, its history of use as a symbol of a persecuted ethnic group, and the educational value of memorials of this sort, override the constitutional concerns raised by the FFRF and its supporters. Even if it turns out a constitutional challenge were valid, I would oppose that interpretation of the constitution. This is another battle we should not be fighting.

Exactly. For more context and argument, read his entire post.

When I talk about what the 1st Amendment means I talk about what it should mean morally. And I am opposed to the atheist movement indiscriminately pursuing just whatever opportunities it can find in order to legally constrain references to religion or expressions of it just because we can figure out we might be able to on technicalities. As I have argued to religious people who want to exploit rulings on the 1st Amendment however they can in order to entangle religion and government, just because you can do something legally does not mean you should.

I don’t write as a lawyer or a legalist interested in gaming the law on technicalities (unless that is the only way that the morally just outcome can be maneuvered into reality). I write as a moral philosopher. I write as a humanist atheist interested in promoting humanist communities, an overall humanist culture, and an adamantly secular state that makes laws only on secular grounds, employs no religious rituals or invocations, and which is as neutral on the worth of religions as possible. I am primarily interested in what the 1st Amendment should be interpreted to mean, and not limiting my discussions of it to what it has been interpreted to mean or might be interpreted to mean in the future as though these are the final words on its meaning. I think that if the atheist movement shows that it is willing to legally stamp out any religious symbols or expressions whatsoever that it can– rather than just scrupulously make sure that the government is not endorsing, promoting, or imposing either a specific religion or the value of religiosity in general–then the movement will be seen as more about power plays than principle. We should not want to be seen that way. We should not be that way.

Finally, even though I am not an establishment clause scholar, I do think based on what I know about the law and precedence and on my consultations with a couple experts in this area that FFRF would lose were it to oppose this monument. And while I think the FFRF should lose a case if they bring it, I fear that the opinions against them could be more broad and overreaching than the reasons I think it should rightly be opposed for and set bad precedent that hurts our secularist goals on the long term. And the potential damage to the reputation of the atheist movement could be substantial if this story becomes a national narrative. We shouldn’t risk either the bad press or the bad precedent.

For more on this issue and my views on other 1st Amendment and secularism issues, see the video debate I organized with a number of passionate and articulate activists and then a links to more of my articles below:


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About Daniel Fincke

Dr. Daniel Fincke  has his PhD in philosophy from Fordham University and spent 11 years teaching in college classrooms. He wrote his dissertation on Ethics and the philosophy of Friedrich Nietzsche. On Camels With Hammers, the careful philosophy blog he writes for a popular audience, Dan argues for atheism and develops a humanistic ethical theory he calls “Empowerment Ethics”. Dan also teaches affordable, non-matriculated, video-conferencing philosophy classes on ethics, Nietzsche, historical philosophy, and philosophy for atheists that anyone around the world can sign up for. (You can learn more about Dan’s online classes here.) Dan is an APPA  (American Philosophical Practitioners Association) certified philosophical counselor who offers philosophical advice services to help people work through the philosophical aspects of their practical problems or to work out their views on philosophical issues. (You can read examples of Dan’s advice here.) Through his blogging, his online teaching, and his philosophical advice services each, Dan specializes in helping people who have recently left a religious tradition work out their constructive answers to questions of ethics, metaphysics, the meaning of life, etc. as part of their process of radical worldview change.

  • Denis Robert

    You forget the part of the argument which it seems everyone else forgets as well: that Jews were not exclusively targeted by the so-called “Holocaust” (so-called because to use a Jewish religious term to refer to the event is to evacuate from it everything that is non-Jewish). There were thousands, hundreds of thousands of Rom, gays and atheists who were rounded up in the same manner as the Jews, and who were executed in the same fashion. Yes, the Nazis did specifically target the Jews, but they also specifically targeted the Roms, for example. The fact that there were far fewer Roms than Jews shouldn’t matter. It only does because smaller populations tend to be invisible.

    But why should we, as taxpayers, continue to finance the ignorance of people about this event, by reinforcing the false idea that only Jews ever died in the Nazi genocide?

    • Grotoff

      The memorial mentions the other groups, but correctly does not highlight them to same extent given the historical facts. They were targeted in a “well let’s get rid of them while we’re at it” spirit, not initially targeted for destruction or wiped out to the same degree.

    • jeffj900

      I think the primary goal was racial purity, and any obstacle was to be removed. It was the bad luck of Jews to be the most numerous and in the wrong place. As a thought experiment, imagine if there had been a large population of Chinese living in Germany at the time, and no Jews, but large populations of Jews were living in, say, India, I don’t think the Germans would have been invading India to kill Jews. They would have been exterminating Chinese. This isn’t intended to be a consolation; just logically addressing the claim that killing gays and gypsies was merely an afterthought. Perhaps because Jewish victims were more numerous is a reason to feature them more prominently in the memorial, but not because the other victims were merely an afterthought, as if that somehow makes their suffering less important.

    • Kodie

      It’s more probably that Jewish immigrant survivors and their descendents are the ones organizing to propose memorials and raise funds. To them, the others are kind of an afterthought, and it’s polite to mention them in their memorial to themselves. These other groups do not seem to have numbers in the US to align with the Jews or propose monuments of their own, inclusive of Jews. What’s wrong with monuments like this is that the public in general keeps it in mind as a travesty against Jews only, and fails to become educated about how much worse it actually was. I said on FA that I really do like this design much better than the other two. It’s been a while since I’ve been to the one here in Boston, but reading about it, it was proposed by a Jewish survivor and uses some symbolic elements to refer to Jewish suffering – it doesn’t promote Judaism or Jewishness (what to call cultural but not religious Jews as a noun?), but doesn’t seem to go to great effort either to include other groups that were targeted or educate the public. I would call that more “secular” in appearance, and completely acceptable symbol-wise, but to the American mind, it is generally known only that Hitler exterminated Jews. Any monument to the Holocaust survivors is perceived as pertaining to Jewish victims unless otherwise explicitly informed.

      I have also argued that even though cultural Jews use the star of David, in the interest of religious diversity, after the cross, the star of David comes right after. It is perceived by the average American to be a religion first.

    • Grotoff

      Well the analogy doesn’t exactly hold. The Jews were long a target for hatred and discrimination because of their dangerous religious position. They had the original form of the religion that Europe converted to, but they weren’t impressed with their new dogma. That made them a target for death from nearly the very beginning of the church. This legacy is important to consider when discussing the causes of the Holocaust. It wasn’t an isolated event, but the culmination of a millenia long vendetta.

    • Dan Fincke Camels With Hammers

      You forget the part of the argument

      That part of the argument is not relevant to the 1st Amendment so it’s not a legit reason we see FFRF or AA getting involved in this.

    • erin.nikla

      the so-called “Holocaust” (so-called because to use a Jewish religious term to refer to the event is to evacuate from it everything that is non-Jewish).

      The standard Jewish term for the Holocaust — since the early 1940s — is Sho’ah, preferred by many (if not most Jews). In fact, in direct contradiction of your claim, many Jews who prefer Sho’ah do so because Holocaust is absolutely not a Jewish religious term, but rather a Greek religious term referring to an animal sacrifice.

    • Nebuladance

      The monument is not opposed because it fails to be inclusive enough. It is opposed because it uses a religious symbol. That’s all.

  • 3lemenope

    We shouldn’t risk either the bad press, [or] the bad precedent.

    This. Sooooo much.

    EDIT: To elaborate, I don’t think it’s all that clear from the FFRF and AA’s statements that they understand just how hot the fire they’re playing with actually is. An adverse decision on the merits will have lateral effect on the state of separartion doctrine. They always do. What they may end up achieving (in the second-to-worst case scenario) is establishing a precedent that so long as a public display is commemorating some event with a religious element, that religious elements to the display become automatically cool (technically speaking, reducing the Lemon test to a nerfed rational relation test; in 2000, the Lemon test survived Santa Fe v Doe 6-3, in 2005 it survived McCreary v. ACLU 5-4). The worst case scenario is, of course, scuttling the entirety of the regime of separation on the basis of one difficult case, since hard cases always make bad law and many judges have been itching to kill the precedents that currently control these issues.

    • Berry

      I think the case people are making about precedent is overdone. There have been numerous Establishment clause cases related to monuments in the past few years, many of them have gone all the way to the Circuit Courts and none have created new precedent. In fact, considering the mess of confused and non-uniform tests that Establishment clause jurisprudence is at the moment, the more cases there are, the more likely it becomes that some time in the future the Supreme Court does actually grant Cert, which would be a good thing in my opinion, though not with the current composition.

    • 3lemenope

      …which would be a good thing in my opinion, though not with the current composition.

      We don’t get the fantasy football SCOTUS we want, we get the one we have (and Ginsberg is the only justice likely to retire in the next couple of years). I have no confidence, if a true circuit split is the result of this action (the Sixth Circuit is veeeeeery conservative), that SCOTUS would go the right way if they chose to grant cert. If there’s any caveat at all, it is only that SCOTUS doesn’t seem to like the Sixth very much lately.

    • Berry

      I think you may have misunderstood (although, I contributed, because I should have expanded my comment.)

      There is, at the moment, already a true circuit split with regards to the Establishment clause: The Eight follows the plurality opinion in Van Orden (which the monument would pass without a doubt;) the Fifth and Ninth seem to follow Breyer’s contextual test from his concurrence in Van Orden (which the monument would pass easily;) and finally, the Second, Sixth and Tenth follow the Lemon Test as elaborated by O’Connor’s Endorsement tool (for which there is some debate as to whether or not the monument would pass.)

      Now, the Supreme Court has had a number of opportunities to resolve this split (which is really one of the worst I’m aware of,) most recently and notably with American Atheist’s two Utah cross cases, but they have repeatedly denied cert. I think we have good reason to believe that this Court is uninterested in looking at too many controversial cases involving religion and the state, as this one would undoubtedly be (their recent granting of the prayer at town hall assemblies case notwithstanding.)

      I completely agree with you that the Court, as it now stands, would impose a very conservative standardized test if they ever did grant cert to such a case, but since I think they are unlikely to do so in the near future, I am skeptical that one additional case that might not even get to the Sixth will make much of a difference either way.

      On the other hand, taking the long term view, we do eventually want the Supreme Court to settle this issue, so deepening the split or adding data to the equation is a good thing, especially if there is actually a good case under one of the tests (I think, at best, FFRF might have a shot at an Endorsement test violation, which is what the Sixth applies, but I wouldn’t bet on it.)

    • 3lemenope

      I wasn’t aware that Establishment jurisprudence had gotten quite that baroque. I understand SCOTUS punting on the memorial cross cases, because they include the massive distraction (same as this case, really) that the symbol at issue can easily be taken as symbolizing something non-religious (esp. since Mormons don’t use the cross as a religious symbol), and so the court would first have to reach a decision on whether the expression at issue should even be considered religious, which they are generally loathe to do.

      On the other hand, taking the long term view, we do eventually want the Supreme Court to settle this issue, so deepening the split or adding data to the equation is a good thing, especially if there is actually a good case under one of the tests (I think, at best, FFRF might have a shot at an Endorsement test violation, which is what the Sixth applies, but I wouldn’t bet on it.)

      This is a very good point. My only concern once it gets there is that it is a poor case on spec because of the confounding issue of it being an ethnic/religious symbol rather than a clearly religious one. No matter how that issue is parsed out, I can’t see it being anything but an impediment to a clear resolution of the general issue.

  • SocraticGadfly

    Good stuff by both you and James. Totally agree.

  • jeffj900

    Well, this article addresses the establishment clause and free exercise clause. I’m a little off topic here, but the headline grabbed my attention, and put me onto the larger topic of what the First Amendment should mean. I think that people too often think of free speech, free press, and free assembly as individual rights, related to freedom of conscience, as the religious guarantees are. Emphasizing the individual aspect of freedom in the First Amendment reduces the importance down to our ability to be uncensored when saying or viewing controversial things or prurient materials, to “say what I want, and see what I want”. This is an important individual freedom, but I don’t think the free speech, press, and assembly rights should be reduced to individual expressions of ego or personal entertainment.

    There is a larger civic aspect of these freedoms, there is an intentional guarantee that is actually unspoken in the amendment, but is there implicitly. That guarantee is for the right of the people to know what their government is doing (free press), to discuss and argue about it (free speech), and to complain and petition about it (freedom of assembly). In other words, it is the guarantee of the people’s ability to ensure that we maintain government of the people, for the people, and by the people.

    I’m in the mood to emphasize this because it seems so common for people to address the NSA data gathering revelations from a standpoint of the Fourth Amendment and privacy, which again is a narrowing down from civic to individual concerns. The privacy aspect and the data gathering seems a secondary concern compared to the abuse of government secrecy, which undermines the intention of the First Amendment, the freedoms of access to information implied by free press and free speech. This is another thing I think the First Amendment SHOULD commonly be understood to be about.

  • Geoff Arnold

    Daniel: you’re missing a couple of critically important words in the first sentence of your post. Try inserting “opposition to a” before “proposed.

    • Dan Fincke Camels With Hammers

      I only just caught it and fixed it. So sorry about the mistake. The post was rushed because I wrote it from the CFI Student Leadership Conference and I didn’t reread it and catch the error til now. Sorry again.

    • Geoff Arnold

      You might want to check out the thread on Facebook that begins with a piece I reposted to the FFRF page. See

      There’s a difference between being correct and being wise, but alas…

  • Leo Buzalsky

    “If we were to imagine a genocide in which the victims were entirely members of one religious group…”
    Well, good…as long as we’re just imagining. Back in this place we call “reality,” it appears that only about 60% (which is still a large number, but not near 100%) of victims were Jewish, so Croft’s hypothetical would seem to not apply. (So why does it seem like you and he both think it does?)

  • MrNeedtoKnow

    The Freedom From Religion Foundation condones and/or support athiest with violent behaviors to destroy and violate people’s rights. Therefore a complain was initiated with the IRS to close down Freedom From Religion Foundation.
    IF your belief system (athiesm) doesn’t agree with other people’s belief system (religion) then you should live one and another alone, have debates, and no violence. FFRF has been going to far and the IRS has not being looking at these guys true purpose.
    Quit violating other people’s rights.

    • 3lemenope


    • MrNeedtoKnow

      It was on CNN not so long ago. Here is a hint Star of David destroyed by followers of FFRF. If the FFRF doesn’t condone that they need to speak up and protect other people’s rights!

    • 3lemenope

      FFRF has followers?

    • MrNeedtoKnow

      Think about it! Why would you give money to support their agenda? You must be a follower and a believer of the organization to give money.

    • markinator

      The IRS also has not been enforcing the law about preachers using their pulpits as a political grandstand to sway votes. It will only take a few churches losing their precious tax-exemptions and the rest will start to see the end result of disobeying a clear-cut law. If you insist on public displays of your religious beliefs on public property, we atheists will ask you to remove it. Our numbers are growing. You can stop this nonsense by simply cherishing your religions within your homes and churches. That’s all we expect.

    • 10%

      Atheist with violent behavior are terrorists because you are doing harm to another person, infringe on their civil liberties. You want the constrict religion, but religion cannot constrict atheist. It’s pretty bias, don’t you think?
      You said “If you insist on public displays of your religious beliefs on public property, we atheists will ask you to remove it.” That is pure BS because you atheists go out and destroy it, steal it, or deface it.
      I agree that some churches that violates the IRS should be closed, and I don’t want to see atheist FFRF trying to sway religious people to be confined within their homes and churches. Therefore the IRS needs to close you down as well. Violence and infringing on someone’s right is terrorism, you are no better than Al Qaeda persecuting Chrsitians.
      Let’s say that all your wishes come true that there is no offensive religious symbols they are all gone. Can they show it outside their churches and homes, or is it a violation and offensive to atheist because they can see it from the street.