This week Dan Barker of the Freedom From Religion Foundation and David Silverman of American Atheists argued against a proposed design for a Holocaust memorial on state grounds in Ohio that features a Star of David prominently but no other religious symbols equally to that and which acknowledges the 4 million non-Jewish victims of the Holocaust in only a smaller scaled way. I have already written a forceful first reply repudiating Barker’s and Silverman’s choice here. In what follows, in response to a wide array of arguments I have encountered from supporters of Barker and Silverman, I am going to explain why to me this is open and shut not a 1st Amendment issue and so not an issue atheists and other defenders of secularism should be fighting or risking cataclysmic PR disasters over.
Any American who goes to a Holocaust memorial in America and says, “You know, there sure were a lot of religious symbols and sayings on display in there, I feel like they were trying to impose on me to change my religion and become Jewish” has completely missed the point. Before we go any further into anything more controversial, can we at least agree on that? I am going to stipulate that “Commemorating the horrors the Nazis inflicted on the Jewish people in the Holocaust is not at all the same thing as proselytizing Judaism to non-Jews.”
Now if routinely on government buildings there were the symbols of any one religion–be it Judaism, Christianity, Islam, Hinduism, or any other–and if ritual prayers or other acts of devotion were expected (even if not mandated) of all people then pretty clearly it would be reasonable to infer that the government in question was trying to intertwine the religion it made central with civic life. It would be trying to signal to me that this was the religion I should follow. It would be imposing and proselytizing, at least informally, even if it never directly mandated. Because as a member of the polity I want to be able to participate in every civic function and doing that requires participating in this religion. It is this kind of thing the 1st Amendment is set up to protect us from. It is not about protecting us from memorials commemorating a historical genocide which use the symbols of some of the people who were targeted for genocide, which just happen to be religious in character.
Now if I see that the laws of my country are made with specifically and substantially religious justification such that the judgments and dictates of the religion(s) in question were binding on me as a citizen through the civic laws in ways that would not at all be justifiable to my independent reason that did not acknowledge that religion, then I would essentially be conscripted at least in part to obeying a religion that was minimally not affirmed by my own conscience as good and which might outright violate my conscience. The first amendment exists to prevent this. It does not exist to prevent the government from ever commemorating historical events in ways that acknowledge that those events had religious elements or employed symbols of religious people who were part of them. If the government used those symbols to exhort me to follow laws dictated by that religion, maybe there would be a case. But just employing the symbols? No.
Now, let’s say my country refuses to allow any one or two religions to be by themselves civically displayed, intermixing with other civil symbols or having their ritual devotional gestures incorporated into civic ceremonies. Let’s say instead it has displays (either permanent or seasonal) which acknowledge all the religions known to be even minimally well represented in the community. I could see this as just part of the civic government’s perfectly normal function of acknowledging with encouraging pride the variety of informal social institutions and kinds of cultural practices of its diverse community.
Now, if they explicitly excluded representation of irreligious and atheistic people in such displays, I could get the impression that they are saying religions are important social institutions and yet atheism is suspect. That would be a way of signaling to me that my government favored religious people and wanted me to be religious and that I was less of a fully civic participant (or a fully good one) for being irreligious. That would be offensive.
But if they include representatives of irreligious and atheistic people, then I could possibly see this as the government neutrally acknowledging and celebrating the range of diverse approaches to informal community, and not endorsing religiosity over irreligiosity. And while some of us want to argue that the government really shouldn’t be patting religions on the back, even ecumenically and even while including the irreligious and the atheists in the back patting, at least in this case the religious are not getting Favoritism.
And that’s what the 1st Amendment is there to protect us from. It’s there to protect irreligious and atheistic people from being told they’re second class citizens and to pressure them to believe that religion is a vital institution they must participate in. It’s there to see that religiosity itself is not favored over irreligiosity. But again, this is not the same thing as acknowledging that victims of genocide you are commemorating were religious in character or were identified ethnically with a symbol that was religious in origins. Because that’s not signaling that it’s better to be religious than irreligious. It’s just saying, “These victims existed and we want to remember the injustice done to them so it never recurs and since they were symbolized with this religious image we will use it as a symbol to remind us of them and what they went through.” There is no need for the 1st Amendment to protect us from that.
In fact, if we had a memorial in which the government remembered a single specific religious group’s undergoing an attempted annihilation and that religious group was the only one being commemorated, then it would be okay that that memorial only had the religious symbols of that one religious group. That’s not at all like having a single religion endorsed by the state and interwoven with all civic affairs. Because, for so long as the memorial’s function is clear and indicated with lots of symbols of the specific event being remembered, the function of that sole religion who had a presence at the memorial would be purely commemorative of the persecuted people and not an imposition of that religion on others as either true, good, nor necessary to acknowledge to be a full member of this society. This would be especially true if the religion whose symbols were employed for commemorative purposes was a tiny minority religion not even adhered to by the majority of the office holding population. No one at all would assume that the existence of these commemorative symbols on government land would signal that the legislators or executives or judges wanted people to convert to the religion. This should not be a 1st Amendment issue either morally or constitutionally.
In fact directly trying to expunge the symbol because of its other, religious connotations would be signaling that religious aspects of history are to be scrubbed out of all public commemorations even when that meant erasing the oppressions people suffered on account of their religions (if they were not even remotely tolerable in cases where they are contextually crystal clearly signifying ethnicity and not religion.) And the 1st Amendment should protect us from the government going so far in the direction of ignoring religion that it never even acknowledges the most salient world historical examples of religiously persecuted people for fear that that will be confused with imposing the dictates of those people’s religions as the law for others.
Now let’s say those who are wary of all religious symbols on public grounds allow that the symbols are permissible as long as there is equal representation such that no one religion or religiosity itself is privileged. But let’s say that in the case of commemorating a specific genocide with many victims only one group’s symbol of victimization is a religious symbol. It is reasonable for these people to want all victims to be represented in the memorial. But it is not reasonable to pull out the “represent all religions or you can’t have a religious symbol” rule in this case. That goes for a holiday display, not the commemoration of an heinous genocide where only one of the targeted groups had its members marked out with a religious symbol. Religious symbol representations are irrelevant for the other groups, much as they deserve representation too, it’s not an issue of equal representation via religious symbols in this case. It’s a matter of acknowledging each group in its own way. This, again, is not a separation of church and state, 1st Amendment problem if only one victimized group is represented with religious symbols at a commemoration of a mass genocide encompassing multiple groups.
Now, you might say that if there are multiple groups victimized but most of the groups are only being commemorated with one mention on a plaque while another is having a much bigger and more visible monument with its symbol displayed vividly, that in that case there is lopsided representation of that one, ethnic, group. But that is not an endorsement of that group’s religion even if their symbol is that religious symbol that double-purposes as an ethnic symbol and which was ethnically understood especially and iconically in the event being commemorated.
It may be a prioritization of one group of victims over others, but it’s not government endorsement of that group’s religion. At least not when the purpose is purely commemoration, when that religion is a tiny minority, when that group was at least AN undeniable primary target if not THE primary target of the genocide, when that group endured centuries of lead up persecution that culminated in that event, when that event is core to the identity of that specific ethnic cultural religious group, and when that ethnic cultural religious group in that event constituted 60% of the ~10 million victims despite being less than 1% of the world’s total population at the time. These are all as good reasons as any to be merciful with people when they err on the side of focusing so much on the Jews that they risk excluding proper attention to others. These are far more likely reasons that this happens than that there is an agenda of making any non-Jewish Americans feel pressured into being Jewish.
Prioritizing that group in a lopsided way may risk underemphasizing in a disrespectful way the millions of other people who deserve to be remembered too, if not done carefully. But such a lopsided emphasis on the ethnic Jews would not in any way shape or form be motivated by a desire to promulgate Judaism. And it could be in no way expected in America to have the function of governmentally imposing the Judaic religion on the average citizen. No reasonable person, no matter how irreligious or atheistic, should have any reason to think that just because the Jews were overrepresented in a Holocaust memorial that the American government was signaling it wanted its people to be Jewish. Such would be a totally unreasonable inference. In no way does having a lopsidedly Jewish Holocaust memorial on state grounds in America constitute an imposition of Judaism, either symbolically or effectively, on any American.
So this is not a 1st Amendment issue. Even if it would be, and I agree it would be, better to have more inclusion of all the other victims too and a wider story told overall, this is not an issue that should concern the Freedom From Religion Foundation or American Atheists. Neither organization exists to make sure that every memorial related to an atrocity covers enough victims of that atrocity. If we’d like to advocate for greater coverage of erased victims from history we can do that by proposing constructive alternative projects that address those people. We do not have to conflate a memorial to the Holocaust sufferings of the ethnically Jewish people with government establishment of either Judaism or religiosity in general. Because it is flat out NOT that.
Fighting this as a 1st Amendment issue in court can risk losing and making it harder to fight serious cases in the future. The Freedom from Religion Foundation and American Atheists should drop this issue as soon as possible.
Subsequent to writing this blog post, I convened a panel of proponents and opponents of the memorial for a vigorous and insightful discussion: