Transcript & Video of CWH Show on Ohio Holocaust Memorial Designs

Josiah “Biblename” Mannion did an incredible job of transcribing Thursday night’s two hour long Camels With Hammers Show special about the Ohio Holocaust memorial controversy in just one day. The video is above, the transcript is below. Please apprise me of any errors. You may republish on your own blog or website the full transcript of this discussion in addition to posting the video, but if you do not publish the full record of what was said I ask that you restrict yourself to what would be permissible under normal fair use standards.

Daniel Fincke: Hello everyone, and welcome to a special edition of the Camels With Hammers Show. My name is Daniel Fincke; I am the host of The Camels With Hammers Show and the blogger at camelswithhammers.com, which you can find on the Patheos blog network. I’m not going to introduce our panelists, but they’re all very accomplished and passionate activists on behalf of secularism. You will be able to read under their names their descriptions. I will only introduce one of the panelists by name and identify him.

The issue that brings us together, [and] we’re gonna have not only the people you see with us here now, but throughout the evening we’re gonna be adding people. Each time, each visitor or participant has a time limit that they can speak, so that we can create some sense of balance and allow everyone to be a participant and not monopolize. Different people have different amounts of time so that we could weight, so that opinions were represented fairly equally. I want to start out by quickly explaining the very broad facts of the issue, and laying out a few arguments that are important to me, and then we’ll turn it over to our esteemed panelists.

The very first thing to note is what’s going on. So, the Ohio State Legislature has approved plans for a Holocaust Memorial, and the ostensive secular purpose of this memorial is to commemorate the fact that, or to acknowledge the fact and warn people of the fact that the Holocaust began with laws that were oppressive. And as a result of this, lawmakers have a responsibility not to create the kinds of laws that would lead to something as heinous as the Holocaust, and other genocides.

Now, the issue that makes this controversial is that they are going to be using a Star of David in a prominent monument, and they do not have any equally visible, at least from far away, acknowledgements of the other victims of the Holocaust, and the Freedom From Religion Foundation has written a letter to the Ohio State Legislature accusing them of violating the separation of church and state if they go through with this design and build this memorial. It’s still only in the proposal; it’s been accepted, the proposal, but they have not yet built it. It is primarily funded privately; it has a bit of state funds for the installation.

The Freedom From Religion Foundation is arguing that a religious symbol on the state grounds without other representation of equal noticeability from other groups would be tantamount to the endorsement of religion. The American Atheists, and we have Dave Muscato with us to represent them, and he’s an official PR person for them so we can assume he speaks to a large extent for the organization, they have come out supporting the FFRF’s position, claiming on Fox News… David Silverman went on and he made some remarks that the Holocaust had many more victims and that by only focusing on the Jews, we’re somehow endorsing Religion and he had the following exchange.

He said, “It’s going to look like a temple, it’s going to look like a Jewish shrine, it’s going to look like a Synagogue, and it’s important that we not give the Holocaust to just the Jews. There was a lot of people who died.” The anchor said, “But you have to admit that they were the primary target. It was about exterminating them. A lot of these other groups were kind of roped into that, because they may have supported, or they were equated as somehow less than favorable, because they were in some way equated to being at the level of, you know, a Jewish person. This was about targeting the Jewish Nation. Silverman said, “It was about eugenics, ok? It was about creating an Aryan Race.” The anchor said, “With Jews as the primary target.” Silverman said, “Yeah, they were a primary target, but they were not the only target, and they shouldn’t be the only ones that are celebrated, memorialized, and they should not be given the impression.” Now, so this remark has subjected the American Atheists to a lot of accusations of Holocaust Denial, which I don’t believe at all they are trying to do.

Now, my objection to this opposition that they are laying out is the following: is that the separation of church and state, it’s authentic meaning, it’s valuable meaning, is to prevent the government from making anyone feel like they have to be religious, rather than irreligious, or like they have to follow a specific religion. So when the government uses religious symbols as part of the government functioning, or religious language, or religious instruction, it is telling the citizens that they have to be religious in some way, to be a full civic member or to be an ideal member of the society; an ideal citizen would be religious in this way. What I want to say is that memorializing genocide victims with their symbol is not endorsing their religion. There’s a complete difference.

And atheists, if we interpret the symbol as automatically being endorsement, we’re showing a crudity in ability to read symbols, and we are equating all religious expression with promulgation of belief, even in the case where we have a minority religion, a non-proselytizing religion, a historical context in which that star signifies the mark, the patch that was put on the cloth of the people who were sent to the death camps, the Jews. And the Jews were central to the Holocaust. As the anchor said, they were the primary targets, the others came afterwards.

In order to say that this shouldn’t be so Jewish, essentially, because Mr. Silverman is arguing that that’s a religion only and that the star is only a religious symbol and not an ethnic one, in order to say that it should not be so Jewish, he’s gone to these great lengths to try and deny the centrality of the Jews to the Holocaust. Because apparently, I’m inferring from him, that if he conceded the Jews were especially essential, then maybe he could acknowledge that having them over-, having them predominantly emphasized in the memorial is legitimate. So to prevent that, he’s trying to deny the centrality of the Jews to the Holocaust. And unfortunately this is rhetoric that mirrors the anti-Semitic and Holocaust denial language. And this is far afield from the purpose of the Secular Movement is what I want to argue; that we shouldn’t be getting into fights with Jews over whether or not they’re trying to own the Holocaust for themselves, that is a terrible line of argument. We’re not qualified to get into any kind of a dispute on that. And it flies in the face of the history. And the important thing to say here, is that even if we can, on the law, get this removed by precedence for any symbol having this function, even though legally I don’t think we can, even if we could, we shouldn’t. There are some things we shouldn’t do, even if we can.

There are plenty of religious people who try and use the First Amendment to try to extend religious privilege beyond what it deserves, and we repudiate that. Even if they can do it technically, because the Supreme Court’s favored them, it shouldn’t. So we’re gonna talk some more, so I want to say that at the front. Even if the legal case does go against me, if you’re convinced that legally they could have a case and win this at the Supreme Court, which I don’t think they could, and I’ll cite something later about that, even if you thought that they could, they shouldn’t because this is not an endorsement of the Jewish religion. Ohio has less than–it’s only 1.3% Jewish; there is no way whatsoever that there would, that anybody in the Ohio Legislature is endorsing Judaism, and the historical context justifies that symbol. Supreme Court’s backed that up, will back that up. We will lose, it’ll embarrass us, and it’s entangling us far from the cause of staying focused on the First Amendment and secularism. And so in order to kick things off, I’m gonna let Dave Muscato start with, and he can take a few minutes to give a rebuttal on behalf of American Atheists, and then it’s up to you to moderate yourselves. I’ll just jump in if necessary.

Dave Muscato: Can everybody hear me okay?

Neil Wehneman: Yep.

Dave Muscato: Ok. So, let’s get started. So, I want to start off by saying that my family is Jewish. I was raised kind of semi-Jewish. My mom is a Deist, but she’s Jewish by ethnicity. We recognize–I’m speaking for American Atheists also–we recognize that the Star of David is a symbol of ethnic Judaism as well as a symbol of Judaism the religion. And, I would say that really the main issue here is just the excessive entanglement between religion and government. If there’s a way to avoid excessive entanglement, that really makes the most sense to me.

Basically, the way that this happened, there were several designs that they had to choose from. They had three that were runners-up that they brought before the committee that was choosing this. There were nine people on that committee. State Senator Richard Finan was the chair of that committee, and he was the only person who voted against this design. The two other runners up did not have any kind of prominent religious symbol included. And I think that the point that I want to make with that, is that 2/3 of the people designing, who had finalist designs for this monument, did not think it was necessary to include a huge religious symbol in order to make the point that this is a good design for memorial for the Holocaust.

And there are different ways to define “Holocaust”. Some people define it as specifically the extermination of the Jewish people during, you know, the World War II time. I think that’s too narrow of a definition, personally. I think most people would define the Holocaust as the entire series of exterminations surrounding the concentration camps and so on in Germany at that time. Which would include gay people, which would include disabled people, which would include Romani people. About 1.5 million of them died. Overall about 40% of the people who died at the hands of the Nazis were not Jewish. And that’s not to say that the Jews were not the bulk of the victims, or that the Jews were not the primary target of the Holocaust, or of the Nazi effort. But I think for one thing, we are not giving enough credit, or, um, that’s not the right word. We’re not paying enough tribute to the people who died who weren’t Jewish by showing so much favoritism toward the Jewish people with just displaying the Jewish star.

If a reasonable person were to walk by this memorial design, the one that ended up winning, with the large Jewish Star, they wouldn’t see this and say, “Oh, this is a memorial for everybody who died.” They would say, “This is a memorial for Jewish people,” whether you’re talking about Jewish ethnic people or Jewish religious people. And the Nazis didn’t make a distinction between those two; they didn’t care if you were a practicing Jew or not.

But I think it’s important to note that the Star of David has been historically, and more importantly, now seen as a religious symbol for Judaism. You don’t tend to see people who are ethnic Jews, but have converted to some other religion displaying Stars of David, you know, on jewelry or anything like that. The government has established that, say if you’re in the military, and you say that you’re Jewish, the symbol that they put on your tombstone if you die and have a military burial, is a Star of David. But if you’re Jewish ethnically, but you have converted to Christianity, and so you tell the military that, “I’m Christian”, when you die, if you have a military burial, they’ll put on your tombstone a cross. It doesn’t… it’s not… the symbol… the symbol doesn’t stay with you just because you’re an ethnic Jew. And the same thing if you’re an Atheist, like if I were in the military and I died, they would put the symbol for Atheism on my tombstone instead of the Star of David, even though I’m an ethnic Jew.

And even more to the point, you can really tell that it’s the symbol for religious Judaism and not just for ethnic Judaism, because there are people who are not ethnic Jews, but practice Judaism who display the Star of David, which they wouldn’t do if it was just the symbol for ethnic Jews, or primarily the symbol for ethnic Judaism. So, the fact that this is widely known as a religious symbol, even though it’s not exclusively a religious symbol, I think excessively entangles religion and government.

And we’re not talking about a small amount of money here. It’s not… I mean, the way that Dan introduced this, he made it sound like it was just grading the ground or something like that. It’s $300,000 is how much we’re talking about. The total cost of this project is 2.3 million. 2 million of that was raised by private funds. But this is on government land, this is gonna be at the State House in Columbus, and it’s not an insignificant amount of money that the state is gonna be kicking in. Plus, it’s my understanding that the state is gonna be maintaining it, because it’s on their property.

So, I think it’s important that we recognize first of all that this isn’t an insignificant project now, but second of all, that this is setting precedent that we don’t want to set as Atheist activists fighting for separation of religion and government. If, and I hate to make this appear to be a slippery slope argument, because that’s not what I’m trying to do, but there are some cases where slippery slopes are a real issue. And I think that this is one of them. If we allow a questionably religious symbol to be very prominently displayed on public land using public money, the next time that something similar to this comes up where it’s not as arguably a religious symbol, but it’s more clear cut of a religious symbol, they can point to this, the people promoting that, and say, “Well, last time we had something like this, it went to court or whatever, and it ended up saying that it was okay to have that there.” And it just sets a precedent that I think we want to avoid.

And I’m not an attorney or a lawyer, so I don’t want to get too much into this, I’ll save that for Neil, but it’s my understanding that through the Lemon test, the third point of the Lemon test, if you can avoid excessive entanglement, that’s what you should do. And considering that they had two other designs available to them that didn’t entangle religion and government this way, it makes sense to me to do that. And I’m not the only who feels this way. I mentioned earlier Richard Finan, the chair of the committee. He voted against this design on the same grounds, and when he was outvoted, he resigned from the committee, despite being the chair of the committee, because he thought this was risky and inappropriate to give this much liability to the state of Ohio on the matter of entangling religion and government. So, that’s pretty much what I have to say, and I’m happy to address other concerns as they come up. I don’t know how we’re doing this exactly, if I can pause my time and then talk some more if other people have questions about what I’ve said.

Daniel Fincke: Yeah, absolutely. Space out your time, Dave has a lot of extra time.

Dave Muscato: Ok.

Daniel Fincke: Space out your time throughout the afternoon. I’m gonna send you links about how much time you have left.

Dave Muscato: Ok, sounds great.

Daniel Fincke: Before I send it over to anyone else, just two quick notes. A secular organization, The International Federation for Secular and Humanistic Judaism, an explicitly secular organization, uses the Star of David, indicating that there are some atheists who do this, even officially. And another quick point about precedence, like you said, this would be used as precedence against us, if there were a court ruling in favor of us. But if we don’t bother to challenge this, there’s no precedence argument there. And so, on this point, why don’t we let Trevor talk about that, because it’s a central point. Why don’t we get to that right away. Trevor, would you like to talk about this?

Trevor Boeckmann: Yeah. I agree, actually, with what Dave said, when he said that he was worried about the precedent that we don’t want to set here. You know, we have a model of what it’s like to be successful in courts in social movements, and it comes from the LGBT movement. And it didn’t come from taking on cases as soon as they came, taking on cases that we know we’re going to lose. It comes from being very picky, finding cases that garner public support. And this certainly isn’t one of them. I mean, it’s dividing our own community. As much as I would love the Lemon test to still be the law of the land, it clearly is not. Justice Scalia referred to it as a late night ghoul haunting the Establishment Clause jurisprudence, and it really is, it’s… it’s dead today. We don’t have five votes on the Supreme Court to do anything with this, and I hope, I hope that in the next ten years, we’ll find the fifth justice that we need to really get a real Establishment Clause back.

While I agree with a lot of the things that Dave’s saying, but the fact of the matter is, we’re not there, and overturning Supreme Court precedent takes decades and decades. And when we’re going after these sorts of case now, where we don’t have popular support, we don’t have legal support, we’re not going to win. And I don’t think that that’s the best use of the resources of the movement right now.

Neil Wehneman: So I’m going to jump in here real quick. Dan, a point that you mentioned that I actually want to, basically, correct you on, is that there is actually a Constitutional relevance to delaying on pursuing a violation of the Establishment Clause. Van Orden v. Perry, which was the 2005 Ten Commandments case, Breyer wrote the controlling opinion, and he said, This particular display is a real borderline, but because nobody complained about it for 40 years, we’re gonna let it stand. And so, that actually does have relevance if we don’t bring the case.

Russell Glasser: Yeah, I want to jump in, because I actually got to hear Van Orden lecture and I’m right here in Texas and have seen that monument many times. There was an identical case at the same time, in was it Kentucky?

Neil Wehneman: Kentucky. Allegheny County, Kentucky.

Russell Glasser: Yeah, thanks. Right. And the Ten Commandments monument in Kentucky was removed, and the reason was that it hadn’t been up for so long. And so, that’s a good point that you’re making, that sometimes the difference between leaving these overt religious symbols up and not doing it, is how long it… how long goes by without it actually being challenged. So, yeah, a lot of times, that’s the difference.

James Croft: I guess I’ll jump in here and say something. I mean, I think I take the view that even if we construe the Star of David to be an entirely religious symbol, it does not represent excessive entanglement of state & church to put up a Holocaust memorial featuring that symbol. And the reason why I believe that is because I think there’s such… because firstly no reasonable person viewing that monument could possibly interpret it as the state of Ohio encouraging people to become Jews. Like, if, for someone to look at that monument, to read the inscriptions, to read the story that the broken, and it’s important to note that it’s a broken Star of David, not a complete Star of David, which is reference to a story about two cousins who were separated during the Holocaust, and it’s… that story is inscribed on the monument itself, so it’s a very explicit reference to a part of the design… someone looking at the monument in toto, I don’t think could reasonably take away from it that the state of Ohio is attempting to encourage people to convert to the Jewish faith. And I think that anyone making that interpretation would be acting unreasonably, would be ignoring historical facts, and facts about the actual monument. And for that reason, even though we might consider it some level of entanglement between state and church, I don’t think it would reasonably be considered an excessive entanglement of state and church.

And furthermore, this sort of memorializing is precisely what I want a secular government to be doing. I want to live in a country where the government can decide to memorialize the attempted extermination of minorities–Jewish people, Romanis, LGBTQ people, otherwise, and others–in memorials such as this. I think it’s highly appropriate that a secular government should remind us of the ethical atrocities of the past for the purpose of public education, of keeping the memories of those sorts of events current. And so I think it… I want the monument to be put up. I don’t see any good legal or ethical case for opposing it. And I think that to make the interpretation of a monument such as this, that the state of Ohio wishes people to become… Jewish, I mean think about what you’re saying. It sounds a little macabre to say this, but if you take that interpretation, you’re saying that by drawing people’s attention to the fact that in the past millions upon millions of Jewish people were exterminated by the government, people will take that to be an encouragement to become Jewish. That’s what you’re argument is if you’re saying this promotes the religious faith. I think that’s ridiculous, I think it’s highly unreasonable, and I think on that basis, there’s no reason to oppose this monument.

Neil Wehneman: James, I find you persuasive, and I’m very thankful that I have not made any of those arguments. I think… there are several issues here, and I’ll go ahead and take up a little bit of my time to give my opening statement, as it were. It’s that, the legal test that we’re dealing with here is Endorsement. I agree with Trevor that, you know, the vitality of Lemon is in question. The whole Establishment Clause jurisprudence at the Supreme Court is a bit of a mess. And one of the tests that we’re seeing applied more and more frequently is the Endorsement Test. And the Endorsement Test isn’t about whether people are coerced or pressured to become a member of a religion. It’s not about whether the state is saying, You should be Jewish. It’s about whether the state is endorsing or disfavoring religion or irreligion, either way. And that’s the test under which I say that this particular design, not the concept of a Holocaust memorial generally, not some of the other designs that were put forth, not this particular design perhaps tweaked a few different ways, but this particular design, on public land with a single prominent symbol that is unquestionably religious in nature (the symbol may have other meanings as well, it’s not necessarily, you know, 100% religious, but it’s, unquestionably, it has religious meaning), that that violates the Endorsement test.

James Croft: How so? Can you explain how it constitutes and endorsement?

Trevor Boeckmann: Well, I don’t think it matters. The Endorsement Test is dead. I would agree with Neil if we still had O’Connor running this court. But the fact of the matter is Justice Kennedy hasn’t been as favorable to any sort of Establishment Clause test that works well for us. And in addition, you know, I think that the courts have been comfortable with things like Nativity scenes, for exactly what you’ve been saying, James, it negates the idea that you’re promoting a religion, and so I guess I’m wondering how under Neil’s version of the Establishment Clause, the courts have continued to allow Nativity scenes as long there’s things like Santa Clauses and other Christmas decorations, that again, you know, negate the idea that you’re actually trying to convert people to Christianity.

Neil Wehneman: Mmhm. Well, I mean, the way my Constitutional Law professor many years ago described it is the Reindeer Rule, and it’s an oversimplification, but as I was doing some additional research getting ready for this show, you know, I’ve seen case after case where they’re saying that if you have more than just a single religious symbol standing along, then it’s less… it’s much less likely to be Endorsement. It’s much less likely to be seen as the government saying that religion in general or this particular religion is a good thing. And so, in that regard, you know, again, there are other symbols that are available to be added to the design. And I believe that that would cure the Constitutional defect.

James Croft: But can you just explain to me how this memorial as designed is saying, in your words, that Judaism is a good thing? Can you tell me what elements of the actual memorial convey that message.

Neil Wehneman: The large, prominent religious symbol that is the centerpiece of the memorial.

James Croft: So, just a religious symbol being there, means that it’s saying it’s a good thing.

Neil Wehneman: No.

James Croft: How do get a positive valence about, just because it’s there?

Neil Wehneman: No, it’s not that it’s there. It’s that it is the only religious symbol, or the only symbol that is relevant to the subject matter, whether it’s, you know, celebrating the numerous holidays and celebrations that take place in December or thereabouts. You know, in that case, you know, you’ll often have a Christmas Tree and a Menorah and a crèche. But if we’ve got simply a single symbol, and that symbol is given prominence, it’s the centerpiece of the design, then that is treating that symbol favorably. It is the government placing it on high, I mean, literally as you walk up, you have to look up in order to see it.

Daniel Fincke: But the reason that that symbol’s being prioritized is not because of a favoritism towards the Jewish religion, but a favorable… like an, an emphasis on the Jewish people and there’s an historical reason to do that in this case. So you have to look at the context of why that symbol is being prioritized.

Neil Wehneman: Mmhm, and the government cannot use the

Mallorie Nasrallah: I wanted to talk a little about…

Neil Wehneman: I’m going to go ahead and cede the floor.

Mallorie Nasrallah: Can I interrupt, or…

Daniel Fincke: Yeah…

Mallorie Nasrallah: Come again?

Daniel Fincke: Yeah, please, Mallorie, go ahead.

Mallorie Nasrallah: Ok, we keep talking about the hexagram without the real historic context. It seems a little pompous of me to jump in, but the context of it in the Holocaust is being completely ignored. Now, I’ve heard people suggest that a pink triangle incorporated into the design would be fantastic. And while I agree with that, I don’t think people understand why the pink triangle would be fantastic. So, the Nazis did not just use stars, they used a system of triangles. So, their road hazard signs were right side up triangles [demonstrates with hands] as such. They decided to go with the triangle shape because it meant hazard and warning. They inverted the triangle for most people. So the upside down pink triangle, for example, was for gays. Upside down brown, I believe was for gypsies. Black was political dissenters, etc, etc. Gold triangle upside down meant Jewish. Now, if you were Jewish, but also gay, you would get a gold triangle upside down, and a pink triangle right side up. In the context of the Holocaust, that cannot be considered a religious symbol, that’s just historically ignorant.

And I don’t mean that in a mean way, it’s just that there was a system of classification using these triangles, and I’m sure they were delighted that it looked like the Star of David, but if we’re talking about the Holocaust, that’s no more of a religious symbol than if we were to make a… I don’t know, a museum of the Romans and the section on torture featured crosses. It’s simply an image that was used at that time, it conveys, Hey, this was something that was used in the Holocaust, it has nothing to do with Judaism religiously, with the Star of David in the context of the Holocaust. And, I mean, most people wouldn’t know that, but I’d rather see the FFRF and, you know, the SSA, for example, secular organizations promote an accurate view of history, than to spend all this time and effort trying to have this symbol taken down. If you have a problem with it as a religious symbol, let’s educate people that in that context it’s not a religious symbol.

Chana Messinger: Yeah, I’ll add that in the historical context and the sociological context that exists in this memorial, the Jewish star is by far the most recognizable, the most well understood, and the most immediately relevant symbol that exists. Neil was talking about the fact that there weren’t other symbols and comparing it to the Nativity, but if we had a month in which there was a prominent religious holiday of one religion, and not of others, it would be totally unreasonable to ask the other religions, Provide symbols just so that we wouldn’t have the appearance of endorsement, if that’s the only symbol that’s currently relevant. And if you ask people what they think about the Holocaust, they’ll talk about Jews, and that’s… more or less accurate. Of course there are other victims, and those people ought to be remembered, and if you think that that’s an important public education project, then you’re welcome to support it. But there’s nothing intrinsically unreasonable about making a Jewish star the primary element of a memorial.

And if I can talk, I mean, this is bizarre, on an architectural point for a brief moment. Daniel Liebeskind is a really well known; he designed the Jewish Museum in Berlin, which is an astonishing feat of architecture and beauty and elegance, and it has a lot to do with brokenness. The museum is at cross angles, and exhibits are meant to be broken up. And that’s what you have here, you have a broken Jewish star that people have to walk through, they have to play the part of a victim in order to understand the monument, or the memorial, pardon me. And so we have this confluence that makes it, maybe for some people not optimal, but totally reasonable to have this symbol without needing to posit any endorsement or any favoritism of a Jewish primary relevance to the Holocaust.

Daniel Fincke: Let me also make some other quick points about that. Is that, even if there was, like… let me ask, let me put the question to Dave. Were there a religious minority, say the Copts were targeted in Egypt, and there was a… or a Muslim group was targeted somewhere, let’s a Muslim group was targeted somewhere. And there was a specific memorial for that specific genocide as an example of all attacks on religious minorities. And if the state of Ohio wanted to say, especially the state of Ohio with very few Muslims, if they wanted to say, “We want to honor the right of religion by memorializing the victims of this religious genocide.” I would feel like using the Crescent would be the appropriate symbol to memorialize a religious group. And I believe there would be a secular purpose, because part of separation of church and state is the defense of the right to religion, and especially when you… if in a narrow, targeted way, the state puts up a memorial specifically for the members of specific faith memorializing their specific targeting, the symbol of their faith is actually evocative in the right way, it’s the only thing that actually symbolizes them properly. In fact, I’ve often looked, and previously, looked at Holocaust museums and gone, “Huh, weird that that doesn’t look anything ‘Holocaust’” in my mind. I think it’s appropriate that… now, of course, this isn’t just the Jews here, but even if this was just the Jews… if this was just the Jews, and if the star was just a symbol of religion, and not ethnic, I would still support it as the memorial of a specific genocide. Dave, would you support that?

Dave Muscato: Well, I mean, like you were saying, that’s not the case that we have here. But if there were…

Daniel Fincke: Would you…

Dave Muscato: If there were some situation where, for example, we were memorializing the genocide of a specific religious group, if we were doing this on government land with government funding, I would question the appropriateness of that. I think if it can be done without the prominent display of a religious symbol, then we should make an attempt to do that. And in this case, we have two viable options that were just outvoted, and like I was saying before, you know, two out of three people that were brought up to design a memorial, didn’t, it didn’t occur to them, or they decided, that it wasn’t necessary to prominently include a Star of David in this design in order to accomplish the task of memorializing the Holocaust. And I think that because it can be done without entangling religion and government, that we should opt for that, if for no other reason than just to avoid the potential for entanglement, whether it’s successive or not.

Trevor Beockmann: But why pick this battle?

Mallorie Nasrallah: I want to say something.

Trevor Boeckmann: I mean, I don’t understand that. I mean, we’re fresh off the heels of AA going after the 9/11 Memorial, obviously unsuccessfully in federal court so far. You’re not going to get a ton of popular support behind this. We have to realize at some point that Constitutional law isn’t what we find in our casebooks, and there’s also, you know, a human element to it, there’s a legal realism of what the courts are willing to do, and I just don’t see any court in this country that would be willing to come out and say, “You have to stop this Holocaust memorial,” in the same way they’re never going to come out and say, “You have to stop this 9/11 memorial.” I mean, why are we picking these fights that we’re going to lose, that don’t get us any popular support, that do nothing for the movement other than throw away money.

Dave Muscato: Well, to be absolutely clear, we don’t oppose a Holocaust memorial. We don’t even oppose a Holocaust memorial on government land using government… using taxpayer funds. What we oppose is specifically this design that includes a prominent religious symbol because it’s on government land using taxpayer funds. If it were not the case that this were on government land using taxpayer funds, and featuring a prominent religious symbol, we would have no objection; if they had chosen a different design, we would have no objection; if they had decided to do this on private land using completely private funds, we would have no objection. It’s just the design that we have objection to, not the Holocaust memorial in itself.

Trevor Boeckmann: Sure, but this isn’t the only, you know, Establishment Clause related issue happening in the country right now. I mean, we could look to the South and see a lot of cases being taken by the ACLU, and the American Humanist Association, where things where city council members are starting meetings with proselytizing prayers, or graduations for high school students are being held in churches where there’s giant crosses in the front and they’re handing out pamphlets with information on Christianity. I mean, those seem like the battles to fight. You treat it as if this is the only one out there, and AA either has to take, or FFRF has to take it, or no one will, and that’s the only case on our table. There’s clearly more, why pick this one?

Neil Wehneman: Trevor, real quick, FFRF is also going after those other cases, I don’t see where this is FFRF diverting resources that would otherwise be used. I’ll go ahead and hand it off to Dave, as he was talking.

Dave Muscato: Well, I mean, every organization has finite resources, and any time you devote any resources to one battle, you’re taking the potential of using those resources elsewhere, so it is diverting resources away from other fights. I do want to make absolutely clear to anybody watching this who isn’t aware, this is FFRF’s baby. They are the ones who started it and wrote the letter. The reason that we were brought into this, FOX News got in touch with us because we’re very close to New York City and they wanted somebody in their studio to give a live interview about the atheist point of view on this. So we got involved in that way.

Russell Glasser: Yeah, because obviously the atheist point of view is so consistent on this issue.

Dave Muscato: Exactly. But, yeah, I just want to make sure everybody understands, for the people watching this, that we’re not trying to take the credit for it, and we’re not trying to steal FFRF’s thunder. But that said, I do agree and Dave Silverman agrees with FFRF’s position on it, that if we can avoid entanglement that that’s the smart thing to do.

As far as pursuing this instead of other cases, it’s my understanding that FFRF is actually not suing. They sent a letter. I’m not sure what their plans are to follow up with that. Our policy here is that we don’t send letters like that unless we’re willing to take it all the way to the Supreme Court, just because we don’t want to start something that we’re not prepared to follow through. I don’t know what FFRF’s policy is; I would be surprised if it’s not similar.

Usually, 90% of the time, 90+% of the time, sending the letter is enough to solve these types of problems. Somebody will get a letter like that and say, “Oh, if there’s an issue, then we’ll fix it,” and they fix it. 2% of the time, it goes farther and they fight it, and then it continues. But, I do think that this is not necessarily the most important thing going on in the country right now. I think there is a good reason that we shouldn’t say nothing; for the reason that Neil mentioned earlier, that if you let things slide then it’s harder to get them removed later. But, yeah, we are going after other things, FFRF is going after other things.

This may not be the perfect, ideal time, as far as precedent and as far as who’s on the Supreme Court right now to take this one, and it may not be a popular one to take. But when you’re talking about civil rights activism, you have to consider that sometimes you’re gonna do things that aren’t popular with the public, for sure, and sometimes you’re gonna have to do things that aren’t popular within your movement also. That happens all the time with every type of civil rights activism. But that’s not a good reason, I think, just because it’s not necessarily a popular move, to not move on something that you see as a violation. Somebody has to be willing to stand up and say, “This is wrong.”

Chana Messinger: The question is why it’s not popular, right?

Trevor Boeckmann and Chana Messinger, simultaneous: Sorry, you can go ahead.

Trevor Boeckmann: Oh, no, I was just gonna say, I mean, these… Don’t point to other civil rights movements as examples of where these things have worked. I mean, when you look at the whole civil rights movement of the ‘60s, where the NAACP had a brilliant legal strategy, where they took small cases to build up to Brown v. Board of Education. If they’d tried to bring Brown in 1910, they would have easily lost the case. We see, again, the LGBT movement that took a state by state approach to win marriage equality in several states before their first federal law suit, which most of the movement still thought came too quickly. I mean, what we’re doing in the secular movement right now, is self-destructive. And I don’t understand why we can’t follow what these other civil rights movements have done, and take the politically unpopular cases when you can actually win them. And I guess I’m shocked that anyone here can actually… actually believe that this is a case that five members of the Supreme Court would come out on our side for.

Chana Messinger: Yeah, and furthermore, Dave, you said that what’s most important to you is to ensure that… the rule you’re following is, “avoid entanglement,” right? And you want to fight for that on a legal level, and utilizing all kinds of other strategies as well. But, that frankly seems like following a rule blindly, and to sort of jump off of what Trevor is saying, all cases are not created equal. And simply because they involve a religious symbol on public land, doesn’t mean that context isn’t important. I frankly have to say that before this happened, I would have thought that a Jewish star on a Holocaust memorial would have been the thought experiment that we would have used to say, “Oh, that would be ok,” and we should compare all other incidences of religious symbols on public land in how far away they are from that. So, I guess my question to you is, in what context… What wouldn’t be too far?

Dave Muscato: I think, I mean, ideally, you don’t want any religious symbols on government land being paid for by government funds, is my perfect world. In a secular system like ours…

Chana Messinger: A government doesn’t have a reasonable interest…

Dave Muscato: I’m sorry, I’m getting tons of feedback, could you say that again?

Chana Messinger: Yeah. So, you think there’s no reasonable government interest in utilizing religious symbols in a context in which they are not serving a religious purpose?

Mallorie Nasrallah: Would the example I provided of, you know, a piece on Roman history featuring crosses strike you as an endorsement of religion?

Dave Muscato: No, it wouldn’t, but… if it’s specifically and explicitly about torture in Roman times, and it just shows among other types of torture devices that they used, or execution devices that they used, crosses, I wouldn’t see that as promoting a religion. But in this case, this memorial is not… it’s not designed to show the different symbols that the Nazis used. It’s a Star of David. And the reason that they chose that for the design is to make us, make a viewer of this think of Judaism.

And I know that before, you were talking about, “Most people don’t know,” is the phrase that you used, all this background about, you know, the different types of symbols that they used for the different colors and the different types of triangles and things, on Wikipedia there’s an excellent chart that shows all the different ones, but most people don’t know that. And the test that we use, and like I said, I’m not a lawyer, so I’m not trying to speak out here on something I don’t know, but it’s my understanding that the test that we use is, Would a reasonable person look at this and say, “This is promoting or endorsing religion over irreligion, or one religion over other religions?” And a reasonable person is not necessarily extremely educated in that fine level of detail about Concentration Camp Identification Symbolism.

Daniel Fincke: James, uh, David, can I… jump in?

Dave Muscato: Mmhmm.

Daniel Fincke: I’m going to… Actually, this is… Ron Lindsay has given me something I can read to give his position.

Dave Muscato: Ok.

Daniel Fincke: And he’s actually going to differ with that standard in this, ok?

Dave Muscato: Sure.

Daniel Fincke: Ron Lindsay writes, “I will limit myself to addressing the legal implications of using the Star of David as a visible symbol in the proposed Holocaust memorial. It would not be advisable to bring a legal action challenging the use of this symbol, as under current law such a lawsuit would almost certainly fail. The relevant Supreme Court test is whether the use of this symbol could be construed, er, considered an endorsement of religion in general or a particular religion. In applying the test, the court considers whether an objective observer who is acquainted with the relevant facts, including the history of the symbol’s display, would perceive it as a government endorsement of religion in general or a particular religion. The Supreme Court has explained that the purpose behind this test is an effort to ensure that the government does not send a message that the members of a religious group are favored members of the political community. For the reasons that you (Dan) have set forth in some of your blog posts, including the one on July 27, no objective observer who is familiar with the Nazi campaign of genocide against the Jews, including the Nazi’s use of the Star of David as a means of identifying Jews, would consider the use of the Star of David in connection with the proposed memorial as an endorsement of religion. Moreover, the notion that the Ohio state government is sending a message that Jews are favored members of the political community is preposterous. There has been some debate about whether complaints about the proposed use of the Star of David for the memorial make atheists look ‘bad’ [signs air quotes], and there has been a meta-debate about whether atheists should be concerned about look ‘bad’ [signs air quotes]. I am not going to comment on those issues. I will only say that a lawsuit would make the plaintiffs look uninformed about applicable law, and could wind up creating precedent that would make it more difficult to bring meritorious lawsuits over religious symbols on public property.” So his standard that he cited here is “an objective observer informed of the relevant facts of history”.

Russell Glasser: May I take a turn?

Daniel Fincke: Sure.

Russell Glasser: So, I come… I also come from a cultural Jewish background, so I tend to be a little bit biased on issues that touch on Judaism. But on the other, I’ve tried very hard to be sort of a firebrand for Atheism in general, and so, as much as I usually hate this guy, I’m gonna be the wishy-washy guy who has points to make on both sides.

First of all, in favor of the Freedom From Religion Foundation, I would say, Yeah, absolutely the Jewish Star is a symbol of Judaism, and I think that nobody does themselves any favors by trying to deny that. I also think that atheists have kind of a reputation for going after religious symbols, like, you know, “Oh, we’ve got a giant cross on government property, and we should get rid of that.” And when we do that, guys like, oh, let’s say, Bill O’Reilly are able to come at us and say, “Oh, look, these guys are biased because, you know, they wouldn’t go after Muslims or Jews in the same way. They’re… they just have it in for Christianity,” right? And so, not going after symbols of other religions kind of makes them right on that, and it gives them ammo a little bit. So that’s one side, as far as I see it.

Chana Messinger: Can I address that point in two seconds? Just that one?

Russell Glasser: Ok. Sure.

Chana Messinger: There’s a context to this which is really relevant.

Russell Glasser: U-huh.

Chana Messinger: Atheists have long spoken out, myself included, on The Friendly Atheist, which is a well-known site, about separate seating, women in the back, on the buses of Orthodox Jews in Brooklyn; in Mea Shearim, which is in Jerusalem; in Bnei Brak, which is also in Jerusalem; in New Square, which is a neighborhood in upstate New York in which women and men walk on different sides of the sidewalk. We speak about those things, and they may not come up as often because they aren’t as prevalent in our society, but that doesn’t mean that…

Russell Glasser: You are totally right.

Chana Messinger: … that we don’t talk about them, …

Russell Glasser: You are absolutely right.

Chana Messinger: … I’ll toss it back to you.

Russell Glasser: Okay. Yeah, that’s a really good point. Ok, so, on the other side. If you’re gonna memorialize the Holocaust, which I think you absolutely should, you are totally talking about Jews. I mean, just like I don’t want to deny that Judaism is a religious symbol, I don’t want to… I also don’t want to deny that the Holocaust is primarily thought of as a thing that happened disproportionately targeting Jews. And I feel like in Atheist culture we sometimes have a tendency to overlook or dismiss even real religious persecution, like maybe, persecution that happens in non-Christian countries to Christians. I mean, those are things that actually happen.

The thing that I wonder about this case is; what’s it going to accomplish, specifically? I mean, there are several things that it could accomplish. It could be accomplishing something from a legal standpoint, and here’s where I agree with Trevor, who’s gone now, when he said that, you know, in this court environment, it’s not going to accomplish anything legally. From a PR standpoint, I think, even people who are in favor of it are agreeing that it’s not gonna win many friends for atheists. And from a moral high ground standpoint, I’m not sure that it’s really winning particularly, either.

The thing about comparing different types of religious symbols is that we ought to have, like, a general principle to figure out whether something is right, no matter what symbol is being used, or wrong, in what symbol is being used. And I think that this kind of comes down to the difference between, sort of, punching up and punching down; the difference between going after a minority and a majority religion. Because , I think, by and large, there isn’t a large contextual movement to make our government Jewish. And because of this, bringing this kind of lawsuit contributes to a perception that atheists are being bullies, not because of consistency issues, but because this is very much a case where we’re going after a group that doesn’t, on the face of it, have nearly as much power as groups that put giant Ten Commandment monuments in public squares. Ok, I’m done.

[Several start to talk. James Croft wins the GoogleTalk connection battle.]

James Croft: Can I jump in very quickly? Or do you wanna go, Chana?

[UI]: No, please.

Chana Messinger: Oh, no, I just spoke, please.

James Croft: No, I’m British, I can’t possibly.

[General laughter.]

Chana Messinger: Ok, I’ll make two quick points. One, I do understand… I have heard those arguments, that we only address Christians and that we hate Christians, and I do understand wanting to make sure that that allegation isn’t valid. But in addition to the point I made earlier, that we do address Jewish questions and Muslim questions… I do think that we should listen to what people say. I don’t think that we should specifically base our strategy on what Bill O’Reilly thinks…

Russell Glasser: Sorry if I gave the impression that I was…

Chana Messinger: No, of course, and I don’t think you think that, I just wanted to throw that out there. And, two, not only are we not making friends with this, I frankly this is fairly alienating to a large percentage of Jewish atheists, who make up a pretty large percentage of the atheist community. I don’t think… as a Jewish atheist, I don’t I’ve ever had to defend the connection between Judaism and the Holocaust before to atheists. And of course, the majority of people are not this way, but on Daniel’s blogs, the comments, and also the commenters on Facebook have had a fair number of virulently anti-Semitic comments thrown in, which is something that I’ve never really seen in the atheist community before…

Daniel Fincke: Can you clarify with an example

Russell Glasser: Anti-Semitism is a real thing, and I mean, as we’ve been seeing for a few years…

Daniel Fincke: if you can, Chana, give examples… Chana…

Chana Messinger: Oh, I’m absolutely happy to give you examples…

Daniel Fincke: Yeah…

Chana Messinger: So, in the Facebook thread somebody used the phrase “Zionist pigs”…

Russell Glasser: Uh, what?

Chana Messinger: If I recall correctly… why don’t I let James talk, and I will find the specific quote that I actually posted on my own blog…

Daniel Fincke: Great. Actually, did Russell want to reply, because Chana replied, and then we’ll get to James.

Chana Messinger: Oh, yes, please. I forgot I was addressing you.

Daniel Fincke: 30 seconds, Russell.

Russell Glasser: All I wanted to say was, I agree with Chana again, but I would like to use my 30 seconds to throw out a potential solution, which is that, I think it’s mentioned already that the solution that the courts have found acceptable to dealing with Nativity displays is just throw all the religions at the wall. And I think since everybody has agreed that more than one group was affected by the Holocaust, maybe the solution isn’t to take away the Jewish star, but to add, like, a pink triangle for gay people, and maybe, like, a purple triangle for Jehovah’s Witnesses, who were also… who also got symbols, and just look up all these symbols, and, I don’t know, maybe even make them smaller than the Jewish Star, but have ‘em there.

Daniel Fincke: Ok, James expressed some consternation.

James Croft: Nah, I just… I do faces. So, I wanted to respond to something Russell said a little earlier about his desire to have a general rule by which to judge these cases. And I’m not sure whether I understood you correctly, but I think is, I actually don’t want a general rule. Because I think that these… how symbols function is extraordinarily complex and context dependent. And I think that we should judge each case on its merits depending on the context of that case.

And that’s why I think that Dave’s proposed rule that there should be no religious symbols on government land or funded by the government, is very very disturbing, because it has all sorts of implications for educational displays, it has all sorts of implications for public schools, it has all sorts of implications that, to me, would actually dismantle certain very important functions of a secular government. So, I would say that what we really want to do, is look at every case in context, and see how the symbols are functioning and ask ourselves, Can this really, by a reasonable person who’s informed of all the facts, be considered an endorsement of this religion.

Now, I actually have more of a problem with the Nativity displays than I have with this memorial, because the purpose, the symbolic purpose of a Nativity display, is to hold up and celebrate certain traditions, whether they’re religious or not. That’s what it’s for, it’s to put it in front of people and to say, “Look, isn’t this good? Isn’t this fun? We all like this, sort of thing.” And so symbolically, there’s clearly some sort of positive valence being added to the symbols there. But the fact that a symbol is prominent and large and high up, doesn’t on its own make it an endorsement.

And in this case as part of a memorial related to a particular story of a particular two individuals with a particular inscription and set of historical information on the side, with all the historical context of that, the use of that symbol added to it, I don’t think a reasonable observer who’s informed of all that could possibly conclude that the state of Ohio is attempting to endorse Judaism and say that Jews are a privileged part of the political community in Ohio.

And that’s why I think that… I’m not talking about the strategic question, I think on ethical and legal grounds, we should not oppose this monument. I want to see it, I want to go there, I think it’s a good piece of public education, and I kind of applaud Ohio for putting it up. Like, I mean, can you imagine even 20 years ago them even considering a monument which refers to the extermination of gay people? And says that we should remember this because this is a bad thing? This is what I want our secular government to be doing, I don’t want to live in a country that bans it by law.

Brian Fields: Can I jump in on this? I agree that one of the functions of government is to be able to put up memorials such as this, and to recognize when society has gone south, like what happened with the Holocaust. But, you know, I really have some severe reservations about… you know, I look at the design of the monument, and I saw the picture, and, you know, a casual observer walking by, looking at it, I mean, I have a hard time not imagining somebody looking at that and saying, you know, “Well, that has something to do with Judaism. I mean, without understanding the context. Now, I do understand, I have been listening, and I understand that that may not be how the legal works, I’m not a lawyer myself, but… it’s… you know, I… somebody said in one of the internet chats about the… there’s a plaque that describes the victims off to the side somewhere, but I just… I wonder at… if the symbol itself is not an outsized representation, the way that the monument is designed. Now, as far as the moral issue, as far as whether we should do it or not, I’m up in the air on that one. I don’t know, I don’t have the answer for that.

Daniel Fincke: Why are you up in the air?

Brian Fields: Mainly because I do, for practical reasons, for pragmatic reasons, I don’t know whether… well, first of all, I don’t know whether it is too much of a political hit on our community, whether it’s something… you know, whether the gains outweigh the liability. And I also don’t know if… I mean, right now, American Atheists, for example, has the 9/11 memorial case that I’m assuming they’re going to be appealing and so and so forth. If we take a hit as a community on this particular case, I wonder at how that may have negative repercussions for the 9/11 case.

[UI Voice presumably to newcomer trying to get joined in and apparently having technical difficulties]: Ok, you’re on your little iPad device.

Daniel Fincke: Ok…

Neil Wehneman: I’ll jump in real quick and just say, as a lawyer, any lawsuit, no lawsuit’s been filed yet, here in Columbus, is not going to have an impact on the 9/11 case because the 9/11 case is currently pending before the 2nd Circuit. And any case here in Columbus would be filed in the Southern District of Ohio, and the 2nd Circuit generally doesn’t listen to the Southern District of Ohio, and any appeal would go up the 6th Circuit. And so, its… just based on the timelines and how long these things take to develop, it’s not going to impact the 9/11 case. Or at least, I would be extraordinarily shocked if it did.

Mallorie Nasrallah: There’s kind of a dead moment, so I…

Daniel Fincke: Ok, ok, yeah…

Mallorie Nasrallah: …I kind of wanted to talk about something before I left, and I may need to go do something shortly. I’ve really gotta agree with James, this is beautiful, and I keep hearing people talk about the alternate options. And the fact of their existence being validation that this design was chosen because… lemme down my volume… because of the Star or makes the Star more prominent. Has anybody seen the other options? Has anyone seen them?

Neil Wehneman: [absolutely not, strong…]

Mallorie Nasrallah: Alright, if we’re going to go with the anti arguments, that we’re playing to the lowest common denominator, who doesn’t know about history, and can’t see that symbols can mean more than one thing at once, I want to show you guys the other options. I’ve got them on my phone [holds up phone showing… well, look it up, you]. I don’t know if you guys can see, that, that’s one of the options. Does that say Holocaust memorial to anyone? Does that convey any meaning? It looks like bad Modern Art to me, and I’m not a fantastic artist, it’s my career, but it just looks like Modern Art on state property; it does not look like a Holocaust memorial. The other one that I wanted to talk about… (I’m allowed to be petty, I’m an artist…) is this one [holds up other example on phone]. It’s… text. The text reads, “They went for days and days under the sun and under the rain and through the fields and the woods.”

Now, I don’t think that we’re using a religious symbol where something else would work. I think that we’re using the imagery and the monument that is beautiful and conveys Holocaust memorial, where the other options conveyed Modern Art. Bad Modern Art or not. My apologies to the artists, I’m probably not as successful as they are. But neither of those convey any sort of meaningful message at all. The text could be interpreted as a message, but if we’re interpreting text, the monument that’s being proposed right now has perfectly viable text that we’re all fine with, that’s completely inclusive. It’s… It is bordering on revisionary to say, No, this is just a religious symbol, people are only going to see it as a religious symbol, but conversely we should go with these other options that these same allegedly stupid, historically ignorant people are in no way gonna connect to the Holocaust. It’s one way or the other, you guys.

Sam Mulvey: You may be a patron

Mallorie Nasrallah: … whether you’re too stupid to get it or not.

Sam Mulvey: You may be a patron, so you understand how to be petty, but I’m assuming you’re familiar with the patron coming to you and saying, “None of these work, please go back to the drawing board.” There’s no reason we have to go with any of those.

Brian Fields: And I’d like to point out, like, for example the Vietnam Memorial in DC, you know, what you have there is a very simple memorial with names of victims, and yet it’s a very powerful thing when you go there. There’s something in between, between something that has absolutely no meaning and something that may border on excessive entanglement, I mean, it…

Mallorie Nasrallah: Those were the finalists.

Brian Fields: No, I understand that.

Mallorie Nasrallah: It’s not a small thing to go back and have submissions again, and ask artists to take all this time to put designs together that may or may not make it. This is what I do for a living, I’m a commercial photographer, and I do fine art photography. I’m the Las Vegas Photographer of the Year, I should have put that under my name. I know what I’m talking about. It’s not cheap, it’s no small matter, to

Sam Mulvey: But you’re suggesting we keep the symbol because it’s annoying?

Mallorie Nasrallah: [continuing through interruption] … They had a contest, they had submissions, and they chose three.

Sam Mulvey: I’m sorry, I’m sorry.

Chana Messinger: She’s suggesting, I think that there are maybe multiple reasons to not like the memorial as it stands, plenty of people have lots of opinions on the artistic value or the religious value, but there is a clear historical context. Even Dave, when he was introducing the topic, said that the intent of the Nazis was to destroy the Jewish Nation. He didn’t say Jewish religious people, because it’s well understood that there is a nation, and I really think it’s important that [interrupted]

Sam Mulvey: Chana, that’s never been my contention, and if I can… you’ve been talking about context for the whole talk, if I can bring you to the larger context, I’d like to take some of my time to read you a quote. This comes from the governor of Ohio, when he was talking about this, about this monument, and he wrote: “We need to have a remembrance in this State House, and I call on the Jewish community along with our brothers in faith to develop some sort of a memorial that members of our legislature and members of the public, as they pass through this great rotunda, they will be able to understand not just the history of a time when people couldn’t stand, but the fact that today we must stand against evil,” ah, I’m sorry, I missed it, “and I call on the Jewish community along with our brothers in faith…” That “brothers in faith” is absolutely key here. Right at the outset, this was a monument with an explicit message, and it was also an exclusionary comment, because it said, “brothers in faith.” Right at the outset, it was the Ohio government is making it very clear that there is an implicit religious undertone to this message compared to other Holocaust memorials that you’ll find.

Now, if you wanna talk about the Holocaust memorial on a tactical basis, that this is not a fight worth winning, that, you know, that this is not something that we can win at this time, I can certainly understand that, and I might even go through with that. But that’s not what I’m hearing, especially from the lawyers. What they’re doing is, they’re wrapping the tactical argument in with another argument that says that this is bad on an ethical basis, which I disagree with. I have to, again, point you out to the context that, you know, the… no matter the secular basis of the Star of David as a symbol, it is now an, almost an explicitly religious symbol. And there’s no way you can include that on a state monument without having some sort of an Establishment of Religion. And what I’m noticing here is that a lot of people are equating proselytization, or selection of a religion, as Religious Establishment. Those things… without being a lawyer, I’ve been lead to understand that those things are not directly equitable. And I find some problem with that.

Daniel Fincke: But, Sam…

Sam Mulvey: But I do want to say that there’s… oh, go right ahead.

Daniel Fincke: But, Sam, don’t you think the meaning of the Endorsement Clause is to prevent the government from imposing, you know, making people think that they have to join a religion? Isn’t it the meaning, the whole reason that we defend it in the first place?

Sam Mulvey: And we live in political era where government, where people in the government, people with much power in the government are trying exactly to say explicitly that. We’re talking about an era of NPR ecumenicalism, where “you don’t have to believe in what I believe, but you have to believe in something”, with an undercurrent of Dominionism. I mean, what I’m saying about with the “brothers in faith” is you guys are saying this isn’t endorsing, they aren’t telling you to go out and be Jewish, they aren’t telling you to convert to Judaism, but the fact of the matter is, that a lot of the… there’s a lot of Christians who are gonna be out there who see this as just another… who see this as a way of promoting Judeo-Christian-ism, because they want… they have a very special relationship with the Jewish Nation. And so, there is a subtext of religion here that goes directly to religious privilege in this nation, which I do not think we can ignore in the wider context.

Dave Muscato: Yeah, I just want to say, remember that it’s not just about endorsing or promoting one religion over other religions; it’s about religion over irreligion as well. And by doing this…

Sam Mulvey: Exactly.

Dave Muscato: Yeah, and by doing this, it’s helping to promote the idea that the government favors the idea of religion, and I don’t… like Sam, I’m not a lawyer, but it’s my understanding that the Establishment Clause isn’t necessarily, like he was saying, about proselytization. It’s not necessarily the problem being, We’re communicating as a government that you’re supposed to change your religion to the religion that we support. It’s not necessarily about conversion. It’s about the government showing favor to some religion over others, or the government showing favor to religion in general over non-religion.

And, in the same way that the government gives tax breaks to churches, and I oppose that on the basis of separation of church and state, it’s not… by giving tax breaks to churches, it’s not that they are trying to get people to convert to those. The problem with that is that they are helping, they are aiding religion. And it’s kind of the same thing here. The government is promoting religion, not in the sense of getting people to convert to Judaism, which it’s not trying to do, and I don’t think that anybody sees it that way. The problem is just that it’s spending money on putting up a religious symbol, to the exclusion of other religious symbols and to the exclusion on non-religion.

Sam Mulvey: Dave, far be it from me to be the kind of “pox on all your houses” kinda guy, but there is a part of your argument that I sort of have a problem with…

Dave Muscato: Sure, please.

Sam Mulvey: … and that is, the position you have about, sort of, how the Holocaust was prosecuted. The ratio, as I’ve always been led to believe, was massively… was actually was very in favor of the Jews, three to two, almost, and the fact of the matter is…

James Croft: I don’t think you want to use the term “in favor of.”

Sam Mulvey: Fair point, thank you.

Chana Messinger: Thank you.

Sam Mulvey: Um, yeah, wow. I might almost shut up with that. But anyway, to go on, the Nazis did make the distinction of Jews versus their efforts at creating a master race. They actually singled the Jews out for persecution, for furtherance of their political efforts. And that, I think is something that we have to pay very close attention to, and to throw… I think you might be throwing the baby out with the bath water when you position yourself somewhat otherwise.

Dave Muscato: Well, I mean, even if this were just about the Jews, even if there were no other victims, even if we define the Holocaust so narrowly as to say that it was just the extermination of Jews, and Chana, I didn’t say “Jewish Nation” earlier, I’m not sure if you misheard me or something, but…

James Croft: I think she was referring to your boss, Dave.

Dave Muscato: Oh, uh, it’s possible, yeah. I don’t remember.

Chana Messinger: I may have misspoken, my bad.

Daniel Fincke: He said “Jewish Nation” on Fox News. He said, “Jewish Nation.” Oh, no, I’m sorry, the anchorwoman said, “Jewish Nation.” The anchorwoman said “Jewish Nation.”

Dave Muscato: Ok.

Chana Messinger: I may have been wrong.

Daniel Fincke: Or you may.

Dave Muscato: Ok. Um. I… I lost my train of thought. Um. I just… I think the point… ok, even if we’re defining Holocaust so narrowly as to be just the extermination of the Jewish people, the ethnic Jewish people, regardless of whether they practiced Judaism or not, the Nazis did not distinguish; even in that case, I would still say that the prominent display of a religious symbol on government land is something that we should be concerned about.

[James and Sam speaking simultaneously]

James Croft: You’re ignoring the context.

Sam Mulvey: Those are the arguments that I think we need to stick with.

James Croft: So just to be clear…

Sam Mulvey: I don’t think we need to get into revisionist history, yeah.

James Croft: There is no situation in which you think that the prominent display of any religious symbol whatsoever has any legitimate secular purpose in America.

Sam Mulvey: For a… For a memorial? No. I would like to live with a government that does include religious symbols. Final. Now, when we’re talking about the case of history, when we’re talking about museums, I think it’s very hard to separate religious symbols from the human context, and I would make… I would make an exception there. The only other exception I would make, are places like grave sites, where the land really belongs to the families of the people who are buried there, and they would want some sort of religious representation. Outside of that, I want no religious symbols in my government, because…

Daniel Fincke: Sam, what’s your view… what’s your view then on the 9/11 cross in the Holocaust Memorial… oh, in the Holocaust Museum… ah, no, I’m sorry, in the 9/11 Museum at the 9/11 Memorial, the cross.

Sam Mulvey: I understand how meaningful that cross is to a lot of people, and I understand how terrible 9/11 is, but once again, we have, you know, a cross being put on public land. It’s just something I’m not able to

James Croft: Didn’t you just you’d make an exception for museums?

Daniel Fincke: Isn’t that a musem?

James Croft: Right. It is a museum.

Sam Mulvey: Is it a museum?

James Croft: Yes!

Sam Mulvey: It seems like it’s a museum, but it also seems like it’s not. I’m having trouble with the context there. I understand that this is not cut and dry. I’m willing to go with you.

James Croft: It’s not that complicated.

Sam Mulvey: I think sometimes it is. Especially when you have the political climate that we have these days. You have to… I think we do have to be careful. I understand about picking your battles, but to say that we’re not doing this over tactical reasons is an entirely different situation than saying that we’re not doing this over ethnical… over ethical reasons. The fact of the matter today is that as an atheist community, we’re talking about allowing a Star of David on a… in a memorial, and not even a museum, on public land, while we are asking for crosses to be removed. I think that’s going to set a very negative precedent, and I don’t see how that’s going to be seen as anything other than an Establishment by the people that… there’s going to be thousands of lawyers, pro bono, who would love to work on that. I am not a lawyer, but I can already see that. Everybody I’ve been… you know, I’ve been hearing that more than once.

Daniel Fincke: Why don’t we let Michael De Dora get in here, the Public Policy Director for the Center For Inquiry.

Michael De Dora: Can you hear me?

Daniel Fincke: Yes.

Michael De Dora: Wonderful.

James Croft: Thankfully, thankfully, we can hear your beautiful voice, Michael.

Michael De Dora: James, it’s a pleasure to join you, Dan, everyone else. I’ve been listening for probably 20 minutes or so, and it’s been a great conversation. I’ve learned a lot just in the 20 minutes that I’ve listened. I know that you’ve been going for almost two hours? Or an hour and a half? [As the transcriber, I can tell you, you’ve been going for precisely 1:14:55. So nyeah.]

Daniel Fincke: About an hour, we started a little late. But you can, you know, just go.

Michael De Dora: Yeah, and I’m sure that it’s been a wide ranging conversation. Just a couple thoughts about this issue. So it was interesting, Dan… I think Dan was the one that alerted me to the issue. I was at the CFI Leadership Conference in Amherst this past weekend. And, if anyone’s ever been to CFI, you can sit in this back patio area, where you can see people in the front, who are just kind of hangin’ out on the front patio. And Dan was out there with a couple of people, and his arms were just kind of going crazy, and you could he was very animated about this issue, so I went up to him, and I said, you know, “What were you talking about?” And said, “Oh, it was this Holocaust thing in Ohio.” I was like, “Alright.” So we sat down for a couple hours, and James joined us, and we had a pretty enlightening conversation about it.

I wouldn’t deny that it’s a complex issue, and I think I sympathize with a lot of the people who say, you know, public lands should not have religious symbols on them. At the same time, I know that the courts look at the context, and the intent, and what’s conveyed with that religious symbol. And I think there are good reasons why the court does that. And I think that in this specific case, there are good reasons why it could be worthwhile to mention that in the Holocaust, the Jews were a particularly damaged portion of society. At the same time, I can understand people who say, I’m a little uncomfortable putting a Star of David on public lands.

CFI… Dan, I don’t know if you got a chance to read Ron Lindsay’s remarks, but CFI doesn’t have an official position on this case. In fact, the FFRF and AA haven’t even actually made the threat to sue, I think they’ve just kind of said, “Hey, what’s goin’ on over there?” Which is not necessarily a bad thing, you know, it’s good that people were talking about this thing. Actually, I think it’s really important that people get the idea, which you can get from the, what, ten or eleven screens that you see right here, that there’s a difference of opinion in the atheist and secular and skeptic community on a lot of different church/state issues. But we talk about them, and we try to make sense of them, and that’s… I guess that’s what we’re doing here.

I think… I think personally, I don’t really know how I feel about the case, it’s not something that I feel particularly offended by, I don’t think that in any way this is a favoring of religion, I don’t think it’s a privileging of religion, I don’t think in any way the government is trying to make anyone feel that Judaism, or even God or religion is a particularly good thing that you should believe in. I think some people just are trying to recognize that something really terrible happened, and it harmed in specific a group of people perhaps the most.

But in terms of the court system, I mean, I don’t think… I don’t think there’s really a case here. I don’t the court would look at this and say, “Well, it feels kind of like a synagogue, it feels like they’re trying to push Judaism on anybody.” What’s going to actually happen in the courts, if it went to court, I don’t know.

But, that all being said, in my conversations even at the CFI Leadership Camp and in the 20 minutes that I’ve been listening to people here, I’ve heard… I’ve heard some pretty interesting arguments, and it’s made me reflect a bit more on my position, so in the minutes that last, I hope I don’t say the last thing, because that’s… I don’t want to have to be the person that has to end this thing. Um, but in the minutes that last here, I hope I hear some more interesting points, and I hope that people write about this and keep talking about this, because even if there’s no court case, I think that this is an interesting issue, the issue of whether or not government should be in the business of recognizing and perhaps even funding religious symbols on public lands. That’s a very broad question. There’s a lot of context to that, and the courts look at that context, and I think we all need to think about it going forward. Thanks for having me.

Daniel Fincke: Ok, well, Wendy, would you like to jump in?

Wendy Hughes: Yes. I listened to David Silverman’s interview over and over and over again. And I couldn’t believe my ears. To me, as an ethnic Jew and a pretty hard core Atheist, I came to see that religion should not be exempt from critical analysis, any more than any other paranormal belief, but the Holocaust was what it was. I mean, the evidence that Dr. Gorski posted on your Facebook thread, that was just chapter and verse about how the Holocaust was designed to kill Jews, and that the other groups were swept in, in just, political dissidents, gays, anybody who wasn’t, you know, good enough to be an Aryan.

And what this argument made me feel was that I began to kind of check my atheist cred, and wonder, what am I more? And do I cona skeptic first, an atheist by applying skepticism to religious claims, or an ethnic Jew who doesn’t believe in a supernatural being who answers prayers and runs things. And I started checking it out with… because I mostly have friend who are skeptics. There’s some overlap, but there are atheists who are not skeptics, and there are skeptics who are not atheists.

And one of my friends said that he felt that the Jews have been, kind of, “pushing the Holocaust button for 60 years, and it was time to put it behind us”, and so I looked at what he was thinking, and I was feeling, “Gee, you know, he feels differently than the way I feel.”

And then I discussed it with my friend Heather, who is a host of the Ardent Atheist podcast, and she asked me some relevant questions, and one of them was, Would I feel different if it was a cross on the memorial, on a memorial, instead of a Star of David, would I more concerned about it or worried about it? And number one, I don’t know. I grew up in California, and this where the Spaniards… you know, the Spanish explorers and the padres, just built missions up and down the coast. And now those are, I mean, they are in our environment. I grew with studying California history, and kind lf never thinking twice about it. And, you know, it just seemed normal.

The missions are now museums or archaeological sites that El Camino Real is marked on our highways by mission bells, and are just in the environment, and we’re just surrounded by it. But that is how the Catholic Church got its foothold in the New World. And I guess it does bother me, and then last year… actually maybe it was two years ago, there was… along the Pacific Palisades, overlooking the ocean, there’s a park, and every year they have a drawing for space for displays. And there’s a secular group that won one of the drawings and put up a secular display for Winter Solstice. And I guess the people went crazy, you know, they thought was a terrible thing, and it wasn’t religious, and it was Christmas time… you know, snowflakes just weren’t making it.

So, the other thing was, you know, when Heather brought that up with me, was that I don’t know what it feels like to be Christian. You know, I’m ethnically Jewish, my parents really never talked about the Holocaust, I didn’t even know about the Holocaust until I got to college, and a friend of mine who’s an Israeli took me to see a French film called… oh, now I can’t remember the name of it, but it was a documentary that was about the Holocaust, and I said, “What is this? What is this?” You know, I didn’t know, but slowly I began to learn, he explained to me what he could. I don’t why my parents never talked about it. It was definitely not in the history books, the Holocaust was only a footnote in the history books when I was in high school. And, I mean, they had every battle of the… of World War II, and all the generals, and everything… everything but the Holocaust. And it… I don’t know if that was deliberate revisionism, or… kind of, obligatory discrimination, I’m not sure.

Daniel Fincke: Wendy, you have 20 seconds left, I’m sorry to cut you off.

Wendy Hughes: Ok. That’s about it, that’s about what I wanted to say, is that I don’t know what it feels like to be other than Jewish. I think that the Star is appropriate.

Daniel Fincke: Thank you. I’d like to introduce Patrick. We haven’t spoken yet, Patrick, why don’t you join.

Patrick RichardsFink: Howdy. Can you hear me ok.

Daniel Fincke: Yes.

Michael De Dora: Yeah.

Patrick RichardsFink: Just a couple of really quick points that I had. As somebody who’s very aware that Jews are not the only victims of the Holocaust. The monument design… it’s built around the Star of David, but it… the monument itself clearly acknowledges that they weren’t the only targets. It is a matter of historical fact, as primary targets, it was that popular and pervasive anti-Semitism that allowed the Nazis to whip up the frenzy that did result in the camps. It’s a matter of history. The use of the six-pointed star in this context, it’s not a call of praise for Yahweh, nobody’s building a synagogue. [attempted interruption from Sam] I’m strong on the First Amendment, I’m strong on Establishment. Fighting against this falls into a pattern that was pointed out by Native American activist author named Vine Deloria. He said, “We see two major trends emerge. We can always devise the proper rhetoric so church schools can be funded as if they were public schools. And we can prohibit the display of almost anything even hinting at religious belief or sentiment in any public place.” And I think that fighting so hard on this second point, on removing something that hints to someone about religious belief when it’s a multi-valent symbol is just putting the effort there and letting it slide right into the schools, where it’s gonna make a difference.

Sam Mulvey: Ok.

Chana Messinger: Yeah, um.

Patrick RichardsFink: Rant over.

Michael De Dora: Thank you.

Sam Mulvey: I do want to speak about the pushing the Holocaust button, and I have heard that a bit in the comments. And, I try not to judge people purely by internet comments, but, yeah, pushing the Holocaust button for 60 years, that’s a fairly terrible thing to say, that’s a social phenomena, but that’s a tragedy that that’s a social phenomena that lasts to this day. And that’s really an important thing to realize that 60 years, biologically, historically is not a very long time. We’re gonna be feeling the effects of this for hundreds of years. And it’s precisely…

Patrick RichardsFink: We’ll feel it, but mostly we’ll forget it.

Sam Mulvey: Yeaaah, I think we’ll feel it either way, but you do have a point.

Daniel Fincke: But people are already starting to with this rhetoric.

Sam Mulvey: Absolutely so, which is why I’m not against… why I’m not against a memorial. I’m not against the Holocaust Museum. I think there should be a memorial, and I think this particular memorial is very nice looking. I would just like it be on private land. But the fact of the matter is, again, we must look at the wider context, not just historically, not just within the context of Jewish culture, but we must look at within the context of American politics. And I’m really afraid that, in places, you know, in the places that aren’t major cities, where there aren’t a lot of political liberals, that this could be used, as he says, as a backdoor method to get Dominionism and a Judeo-Christian, you know, front put into education, and I think that would badly serve the victims of the Holocaust.

Patrick RichardsFink: You took me backwards.

Sam Mulvey: What’s that?

Patrick RichardsFink: You kind of reversed what I said.

Sam Mulvey: Oh. Sorry!

Patrick RichardsFink: What I said is that focusing on this, focusing on getting this thing that appears to be a religious symbol, that’s actually a multi-valenced symbol, and it just, and it…

Sam Mulvey: I certainly did.

Patrick RichardsFink: … it just boggles my mind that religion has so much power in the secular community that if a symbol is used religiously in one context, suddenly it’s a religious symbol in all contexts. Wow, who’s got …

Sam Mulvey: Religion has so much power…

Patrick RichardsFink: … the power there.

Sam Mulvey: Religion has so much power, period. I’ll give you that for free. Look at history, look at how much domination religion has had over history, and that is exactly the kind of thing we’re fighting. At the end of the day, …

Patrick RichardsFink: But what…

Sam Mulvey: … this is what I think we are here for.

Patrick RichardsFink: All this is fight is gonna do is set up a backlash that’s going to stop… it’s going to distract from the fights, like I said, of keeping public funding out of religious schools. It’s going to distract from that, it’s… like I said, you’re setting up a backlash, you’re standing here going, Alright, here we go, we’re gonna fight against this, and in the end of the day, the secular community is gonna look like fools.

Sam Mulvey: But I think in a social justice movement, we occasionally have to do things that the masses are going… or that the majority, or the people with privilege, or whatever you want to call them are going to find bad or uncomfortable, and you’ll always sort of risk backlash.

Daniel Fincke: Right, but…

Sam Mulvey: I think that’s sort of one of the problems that we face as social activists.

Daniel Fincke: But Sam, but Sam, the question is whether or not you want to consider… whether or not you want to take on Jews as the people with privilege. Even though they’re religious, they’re specifically

Sam Mulvey: [yelling] I’m not taking on the Jews.

Daniel Fincke: on this issue. No, listen. Well, no, okay, but listen, I want to you to read… from Gorski’s blog, he quoted Gord McFee, who cited a bunch of scholarship, you know, a tremendous amount of research in the books he’s bringing this from, and he sums it up this way, he says, “The ultimate aim and the primary target never varied. Others were murdered in the course of the final solution, gypsies, Russian POWs, homosexuals, Jehovah Witnesses, and so on, but the first and constant target was always the Jews. The final solution was intended for the Jews, it was about the Jews, and chiefly affected the Jews. There [is no denying that.] …

Sam Mulvey: When …

Daniel Fincke: “… Without the Jews, there was no final solution. To minimize or trivialize the ‘Jewishness’ of the Final Solution is to seriously understate, if not, unintentionally perhaps, deny its essence. This does not mean that the suffering of other groups is to be ignored; on the contrary, it was terrible. But without the Holocaust, without the “Final Solution of the Jewish Question”, the others live. The term ‘holocaust’ was coined to describe the uniquely Jewish aspect of the Final Solution. It does not seek to negate the suffering of the other victims.” Now, in that sort of a context, what he’s saying is to deny the Jewishness is almost to deny the Holocaust as the specifically, as the “Holocaust” and not a wide genocide. Now this is rhetoric anti-Semites use, and as a result of …

Sam Mulvey: Ok, Dan, that may be rhetoric that anti- …

Daniel Fincke: Hold on a second, hold on, …

Sam Mulvey: That might be rhetoric that anti-Semites use…

Daniel Fincke: Let me finish this …

Sam Mulvey: … but it’s not rhetoric I’m using.

Daniel Fincke: Let me finish, though.

Sam Mulvey: Alright.

Daniel Fincke: Sam, please. To have David Silverman make this the emphasis. In order to say this was too Jewish a monument, you had him go on FOX News, and say, It wasn’t about the Jews, it was about eugenics primarily. That they were not a primary target. That is being construed as Holocaust Denialism, and even though I do not agree with that, we have opened that door by making… we have atheists running up and down now, on my facebook wall, on my blog making the argument that “the Jews are being over-represented in this!” and they’re sounding like anti-Semites on an issue we should never go near sounding like them. That is not the time to piss off the powerful.

Sam Mulvey: You’re going very near insult. And I understand that you’re not trying to do that, so I understand, so I’ll take it as it stands. …

Daniel Fincke: I am not claiming David Silverman denied the Holocaust. I’m saying … he saying, please

Sam Mulvey: I’m not talk about David Silverman, I’m talking about myself. But one thing I don’t …

Daniel Fincke: I’m not talking about you. I’m not talking about you, I am saying that …

Sam Mulvey: You did say “you.”

Daniel Fincke: No, I didn’t mean you specifically. …

Sam Mulvey: Oh, ok. …

Daniel Fincke: I just meant those who make those arguments. I don’t think you said it. I’m saying to you, we shouldn’t pick this fight. That’s all.

Sam Mulvey: I can understand not picking this tight, this fight on a tactical basis, I could understand that if I’m working… if I’m Dave, and I’m at American Atheists and my lawyer comes to me and says, This is what’s going… this is how it’s going to go legally. I understand that, but that’s not the argument that you’re making. And I’ve said it at the outset, at the very beginning of this argument that this is, that the Holocaust targeted the Jews. They were hurt the most by this… by this genocide, by this terrible thing. But is Jewish cul… Jewish culture is wide enough, the history is detailed enough, and artistic expression is so varied, that we must inclu… that we can’t avoid a religious symbol? There is so much there, the history is so deep, the culture is so wide, can’t we pick something else that doesn’t skirt the law like this? Can’t we go with something else?

Chana Messinger: So. No one has claimed that Jewish Star is obligatory. Lots of people have made the very good point that there are other beautiful memorials that don’t include it …

Sam Mulvey: Mmhmm.

Chana Messinger: … but, that doesn’t mean that the existence of it is therefore intrinsically unreasonable or illegal. I mean, look, I think there are plenty of reasons for other people not… I mean, they don’t work for me, but for other people to be wary for whatever reason. Be wary of Judeo-Christian Dominionism, be wary of what the, of what the memorial would mean if it was phrased a different way about religious Jews. But we have to look at the memorial in its own terms, and the way that it functions, and what the governor says on his terms is how he interprets the memorial, and that is uninclusive and wrong. But the memorial itself is not uninclusive and is not unreasonable insofar as it prominently displays one of the most relevant symbols of the Holocaust.

Sam Mulvey: Under that term, the Ten Commandments monument may be just as ok, and that’s what I’m concerned about. It’s not…

Chana Messinger: How is that?

Sam Mulvey: The Ten Commandment monument in Florida. People often use it as a way to say that, “Oh, this is morality that everybody follows.” …

Patrick RichardsFink: Sorry, I’m sliding down a slippery slope! [with accompanying appropriate tilting of his interface so that his face begins to disappear]

Daniel Fincke: Sam, you’re out of time. Thank you very much, Sam, you can stick around, but you’re out of time.

Sam Mulvey: [literally grrrs] Slippery slope.

Neil Wehneman: Well, let me add something to the conversation here. We often… We’re talking about the term ‘unreasonable’ and just because I’m making a reasonable argument, or I have a reasonable position, doesn’t mean that you have an unreasonable position. I believe there are numerous reasonable positions that are being put forth in this conversation, and I really hope we don’t lose sight of that.

I’m gonna give a different way of framing the argument, in that the, quote-unquote, ‘target’ of my concern is not Judaism, it’s not religion, it’s the state of Ohio. It’s the government. It’s ensuring that the government is respecting the limitations on its power. The Establishment Clause being one of those. And based upon my reading of the law, and I do not do First Amendment Law full time, in fact, I don’t even practice law full time. But based on my relatively intelligent and educated view of the law, I do not view FFRF’s interpretation as a stretch. I do not view this as a case where they are trying to take new ground. And so I look at the law, and I say using the existing tests, it is reasonable, in fact, I’m going to say more likely than not, possibly even higher than that, that this is an Establishment Clause violation.

And so, my request, as an individual, and Mallorie mentioned the SSA shouldn’t be getting involved in this – throughout this entire conversation I’ve been here individually, I do not represent the SSA on this issue, we have no public position on this issue right now – but it’s about the government doing good works through the power that it has.

An analogy I’ve used previously is with the Takings Clause. If the state of Ohio showed up in my front yard and said, We’re going to put a memorial to Operation Enduring Freedom on your front yard, and we’re not going to pay just compensation for that, I would be very angry about that. Because they are required to pay just compensation to take private property for public use. That doesn’t mean that I’m against memorializing the numerous casualties and other people impacted by those… by that war. It’s just me saying, “Dear Government, Please do this the right way.” And the existing tests, based on my reading of those, says that using a religious symbol, even if it’s a multi-valenced symbol, which it is, but using a symbol that is religious in this manner is a violatative of the Establishment Clause.

Brian Fields: And I think one of the things that’s relevant here with the showing that there are alternatives, and I understand Mallorie’s point that the alternatives may not be visually appealing the way that they were presented, but the fact that the alternatives exist falls back on, what was it, ACLU vs. Eckels? If there… If there is a way that they can do the same thing that does not result in excessive entanglement, then that is the preferred way to do it.

Dave Muscato: Yeah, and that’s what I said at the very beginning of this, and that’s our position on it as well.

Neil Wehneman: “Doing this right is hard” is not a defense to the Establishment Clause violation.

James Croft: So, I want to say a couple other things. I mean, firstly I want to echo some of the things that Michael said a while back, which is that I actually understand the concern around this, and I can understand why people would have an immediately skeptical reaction as to whether this is a good idea to not oppose. I think that whenever the government wants to put up what is ostensibly a large religious symbol on public land, we should go, “Wait a minute, what’s going on there?” We should really scrutinize very carefully what’s happening, so I respect that… that instinct.

What disturbs me is that, the way that instinct is being expressed in this instance seems to ignore central, important historical contextual facts that just cannot be ignored in a reasonable, civilized society. I mean, this is just in no way similar to putting up a large Christian cross without context on the lawn of the statehouse, or putting up a large… although it would never happen, putting up a large crescent and star on the lawn of the statehouse. It is in the context of a memorial, which memorializes a particular historic event, within which a particular symbol, regardless of its history of religious use, was used to demarcate an ethnic group for extermination, that’s very important, an ethnic group. Because, as Dan said earlier, this was people being identified regardless of whether they were practicing religious Jews or not. That was no defense, to say, I am not a God-believing, practicing Jew, that was no defense in the Holocaust.

So, in this context, it seems to me abundantly clear that the symbol does not represent excessive entanglement between church and state, and that the interpretation that it does relies on an extraordinarily unsophisticated, ahistorical view. You have to be willfully ignorant about history and about the facts of the monument in order to interpret it as a form of endorsement of the Jewish faith. And I think that disturbs me, I don’t think a movement that prides itself on its rationalism and its clear thinking should, in this case, make its argument on the basis – and I’ve hear this argument made here this evening, and in blogs, and on Facebook pages a lot – that someone driving by would assume that it’s an endorsement of Judaism. This is not the standard of argument that I… I feel like I’m gonna be hit by a train at any moment [there has been a train going by in someone’s mic]

Michael De Dora: Yeah, whose train is this?

James Croft: I feel like we should be more intellectually sophisticated than that in our arguments. I don’t want to live in a democracy which says as a blanket rule under no circumstances should any religious symbol ever be presented to the public on public land and at public expense. Because I think that’s a sort of totalitarianism of thought that reject context, rejects historical nuance, and that doesn’t think intelligently about these questions. Again, I say, this sort of monument is exactly what I want our government to be doing. I think we should be celebrating the fact that Ohio wants to recognize the Holocaust. I think that we should be celebrating the fact that they made a good aesthetic judgment between the different options that they had on the table. It also seems to be the one that the most appropriately and powerfully expresses what they wanted to express. And the idea that it represents an endorsement of Judaism, I’ve heard no cogent argument to support that case.

Neil Wehneman: James, I agree with pretty much everything you said on historical context, and the conclusion that I have, and unfortunately, I don’t have the time to lay out the legal argument in the less than two minutes that I have remaining, but my conclusion individually from looking at the law, is that it doesn’t change the outcome, that it’s still an Establishment Clause violation.

Daniel Fincke: Do you think that’s the spirit of the law, though?

Neil Wehneman: To answer that question would be extraordinarily complicated. Just because we’re going into the nature of the Common Law, we’re going into the nature of constitutional interpretation, and that we have snippets of text which we then have to apply, and we apply them by coming up with standards, and …

Daniel Fincke: But morally, what would you say. Don’t think like a lawyer. Morally. If you were starting a country, would you make this law, read this way.

Neil Wehneman: I would have to think very hard about that question. As I’ve been preparing for this conversation, one of the things that has kept coming back to me is that we don’t have exceptions to the Establishment Clause. For Free Speech, the government can regulate and restrict Free Speech, give… in fact the content of Free Speech, not just the time, place, and manner. Under compelling cir… compelling interest narrowly tailored. There’s no such restriction, or no such escape clause, as it were, on the Establishment Clause. In fact, we’ve got the Supreme Court saying that the government can regulate the content of Free Speech in order to avoid an Establishment Clause violation.

Again, I don’t have the time to start over from the very beginning, and say, If I was drafting the Constitution from scratch, how would I do it in order to best encapsulate these moral concerns, to use your phrase. But looking at the existing framework, the ones that we have right now, and the ones that we have to work with, my conclusion is that it’s an Establishment Clause violation.

Chana Messinger: I think the Establishment… the Establishment Clause is very important, and I think it was Sam Mulvey who pointed out the question, or perhaps it was Patrick, about taxes, about taxes being, about tax exempt churches being a form of favoritism, even if it doesn’t compel people to become religious. And I mean, I think that’s a great point.

So the question for me is, sort of an Occam’s Razor approach. Do… Does the existence of the Star in the position that it exists in the memorial require the additional explanation of favoritism in order to explain its existence. And I think if it did, then that would be an exceptionally good argument. But, as a matter of fact, it doesn’t. There are perfectly good reasons, a priori, that we might expect a star like that, that looks like that, in that position to be on such a memorial, even if it was on public ground, and so we don’t need the additional explanation. And so the Establishment Clause doesn’t seem to be required to explain what’s going on.

James Croft: [snaps repeatedly, presumably to make sure everyone realizes that it can be their turn now]

Daniel Fincke: I’d like to pose a question to Dave. Dave, what would you say in reponse… I’ve strongly criticized Dave Silverman. Can you please talk about his FOX News appearance.

Dave Muscato: I don’t have the transcript up in front of me. Which part of that specifically are you concerned about?

Daniel Fincke: When the anchor said that the primary target was the Jews, and he corrected her, tried to correct her that it was about eugenics instead.

Dave Muscato: I mean, I’m not an expert on the history of this. It’s my understanding just from what I’ve read in the last couple of days since we’ve been looking into this, 40% of the victims were not Jewish, and they were not targeted for any reason relating to Judaism. I… apparently… from this conversation, it seems that it started as targeting the Jewish people, not just religious Jews, and that may be the case. But if this memorial is about the Holocaust as a whole, just showing the one symbol, I think, is unfair to the 40%, which is not a small proportion, of the people involved in this who weren’t. And, I mean, the way that my boss – I’m gonna call me Muscato and him Dave, that’s how we do it at the office – the way that Dave phrased it on the air as far as saying, “It’s important that we not give the Holocaust to the Jews.” I think there’s more eloquent ways to put that, and he thinks so, too. The Holocaust was primarily about Judaism, and about exterminating the Jewish people as a whole, and I think we all agree with that, and that’s historically accurate. We’re not trying to deny that that’s true.

But if you’re going to put up a memorial about the Holocaust as a whole, especially given the question of entanglement, I think it makes sense to choose a design, given that we have available alternatives, that doesn’t pull up that question of, “Is this an entanglement issue?”

One, in addition to the fact that the other designs would more fairly represent everybody that was a victim of this, and I just think that makes the most sense. It seems like such an easy answer. We have right here a design that we could use that doesn’t do that. They haven’t built it yet, they haven’t committed to anything yet. It doesn’t make sense to me why they don’t just say, Ok, we’ll just do something else that doesn’t cause a problem.

Daniel Fincke: But what, can you just quickly answer. Do you agree with, like, why would you say that a fight that gets us entangled in these ancillary issues and risks charges, even if they’re baseless, risks charges of this Holocaust denial. Isn’t that treading into ground that distracts from the core mission?

Dave Muscato: Well, you made the point earlier that we’re using rhetoric that’s similar to rhetoric that Holocaust deniers use, and that’s troublesome because people… outside observers of this might think of us as Holocaust deniers on that basis, and that may be. There are always going to be ignorant people who aren’t paying close attention, who think that we’re not saying what we’re really saying. We get letters all the time of people calling us Satanist, and so on, and we’re not Satanists, and anybody who knows anything about Atheism would clearly understand that we’re not Satanists. But I don’t think that that’s a good reason to avoid using the specific wordings that we’re using, if they’re actually accurate, just on the basis of we don’t people to accidentally misunderstand us.

And I mean, I, and I said this somewhere on facebook, too, I am absolutely happy to publicly say that Jesus was not the Son of God, Jesus was not a god, and I don’t apologize for saying that. And somebody might say, “Well, an Islamic terrorist is also going to deny that Jesus was a god, and we shouldn’t say that because people might misunderstand us and think of us as Islamic terrorists.” I mean, I’m sorry, but it’s still true, and I’m still going to say it regardless of whether other groups I don’t agree with say the same thing just by coincidence, and I think that’s the major point.

Daniel Fincke: So, Dave Muscato has used up his time.

Dave Muscato: Ok, thanks.

Daniel Fincke: So the people left are Patrick, Michael, Brian, Chana has a very little bit of time left. Is there any one of you who would like to speak? And maybe Neil has a little bit of time.

Neil Wehneman: Well, I’ll go ahead and kind of give my closing thoughts, and burn whatever time I’ve got left.

Daniel Fincke: One minute, and it’s ticking.

Neil Wehneman: Okay. Alright.

Brian Fields: I’ll cede my time to Neil, by the way.

Neil Wehneman: Well, I…

Daniel Fincke: Ok, will you cede the rest of your time to Neil, Brian?

Brian Fields: Yeah.

Daniel Fincke: Okay.

Neil Wehneman: Well, thank you for that.

Daniel Fincke: So, you have three minutes and 47 seconds.

Neil Wehneman: Okay, well then. One of the key points that I’d make that has really been refined from this conversation, and I’m very thankful for that, and also for the people that are no longer here, is that, if there were some sort of balancing test, or some sort of test on the Establishment Clause like we have with the government regulating the content of free speech, a compelling governmental interest and narrowly tailored, if we had such a test, I think this would be a fantastic example of when that test would be passed. But we don’t.

We have tests that say… we have cases that together say that if you have a religious symbol, even if that symbol has other meaning, has secular meaning, has cultural meaning, within, you know, the Holocaust, within the context of World War II, this was not a symbol of Jewish faith necessarily, this was a death mark. This was, if you have this, you’re going to die. And that has incredible cultural and historical significance.

And the Case Law that we have, and this is an American Atheist case predominately that I look to, is the Utah Highway Patrol Association, where we have these large Latin crosses that have cultural significance to the Christians, as well as having general significance as a symbol of death and remembrance. And the court said that if there’s multiple significances to it, the fact that it is religious also impacts the Establishment Clause, and the court ended up ruling that… 10th Circuit said that this is a violation of the Establishment Clause, even if there’s additional meanings to it.

And the ACLU v Eckels case that FFRF mentioned in their initial letter to the state of Ohio, says that the government cannot use a religious means to pursue secular ends if there is, if non-religious means are available. And, so the argument that I have and this might be a point where I’m persuaded, and I wish Mallorie were still here, is if you could argue that it’s not possible to have an effective Holocaust memorial, without having the Star of David, standing alone at a point of prominence, then I might be persuaded. I might say, “Okay, ACLU v Eckels, you know, that language doesn’t control anymore, because we can’t use non-religious means for it.” But I don’t think that’s a winning argument.

So, again, the key thing for me is, this is about a limitation on the government’s power. And the focus, I think, generally should be about recognizing that there’s multiple reasonable arguments to be had here. I don’t anyone who has argued against me is unreasonable that are here.

But I would really encourage us to focus on what individuals are saying, as opposed to how other people outside the movement might be reacting. I look to the ACLU. They’ve taken on a lot of really unpopular cases before, and they’re still going strong. I mean, I look to them as an inspiration to the type of organizations that I want to be involved in. So just because this particular case is unpopular, if it is consistent with where the Case Law is, then I think an organization that focuses on litigation, like FFRF or that has a significant nexus with that, like American Atheists, I don’t think they’re wrong to pursue it.

Daniel Fincke: Ok, but Neil, would you say that in a controversial case where reasonable people can disagree, with the court against us, is it really the wisest one to pursue when we can let it be and it wouldn’t serve as precedent.

Neil Wehneman: Well, there’s a lot of courts that are involved. 99% of the cases that are appealed to the Supreme Court of the United States are never heard by SCOTUS. And so, yes, and this is earlier in the conversation with Trevor where we were talking about the mess that is Establishment Clause jurisprudence. In any given case that is taken up regarding the Establishment Clause, that SCOTUS takes up, they can decide, we’re gonna, quote-unquote, “fix this.” It’s, you know, to quote Justice Brennan, “The most important law at the Supreme Court is the Law of Five.” With five votes, you can do anything around here.

Daniel Fincke: Ok, you’re time is up, Neil, I just wanted to make a quick point about that. One thing Trevor’s article against the, uh, talking about the FFRF’s strategy, he argued that, yes, they can undo it. Like in 1986 there was a ruling against gays, it was very vile, and we were able to undo it in 2003. But the point was that he made was, that if you put ruling after ruling in a row for 25 straight years, it’s gonna be harder for them to overturn precedent, as opposed to, “Oh, yeah, 25 years ago we made a mistake.” Because even 25 years is a “short time” to overturn precedent. Let’s let the other people who haven’t spoken, who have left time. Chana has a minute and 45 seconds to close, James has a minute to close, and Michael has two minutes to close, and then I’m gonna thank all of you and then we’re done. So let’s start with Chana, and then Michael, and then James.

Chana Messinger: Ok, well, I just really appreciate being asked to speak. I really just want to close by saying that I found what Neil just said very compelling. I really understand the idea that we feel that it would be so easy to just do something else. And really what I have to say in the defense is that while I do understand that, and I do understand a vision of secularism that includes that, that vision of secularism is not mine, and I don’t think it’s the ideal one. I guess I’m a little bit echoing James, but the secular community that I want is one that does understand religion, I mean one of the amazing things about atheists is those arguments when they understand the Bible better than everyone else. And this could be an instance of that, in which we understand the history and the function and all of that in a way that is sophisticated enough to allow us to make important distinctions between, for instance, tax breaks to churches and this memorial.

And I also want us to be able to say, You know, I’m a little bit wary of this as a possible creepy Dominionist outreach to Jews from a pretty Christian governor, without saying, therefore we must so, frankly, a little paranoid, and on our guard about religious symbols that we never allow the context to override that. And that’s a vision of Atheism that I think is totally possible, and that I want to see happen. But I really appreciate the arguments that have been made contra. That’s my close.

Daniel Fincke: Michael, two and a half minutes.

Michael De Dora: Two and a half minutes, thank you. Thank you again, Dan, for organizing this, and putting all the efforts into getting everyone. Again, I know that I missed the majority of the conversation, but, again, I can tell from the half an hour, hour or so that I’ve caught that there’s been an intense and vibrant conversation about separation of church and state in America, and I think that’s a good thing. I think the fact that there’s a difference of opinion on this, shouldn’t really be surprising to us.

I mean, I think it’s one thing we all agree, like, the Ten Commandments and the cross on the front of the Supreme Court or something is bad. Giving money to Christian schools to teach kids that the world is 6,000 years old, and, like there… there are cases that we can all get around the table and say, That’s definitely separation of church and state violation, no doubt about it.

This is a case on the border, on the edge, and I think it’s good that we’re all having a civil conversation about this, and not… not tearing each other apart. That being said, I think there are some interesting questions to think about, going forward, and I think we should all think about this going forward. Obviously there are two questions that it seems people have been asking.

One is the moral question of, Is this inclusionary, does it exclude anybody? That’s a question that is really complex and I wish not to really talk about that in the probably minute that I have left. The church-state question I think is really interesting, though, especially from the kind of secular perspective. Because there’s been so many cases that have been coming up for us that necessarily haven’t gone that well, and we should be thinking very carefully about which cases we bring to court, and which we don’t.

Even if we think it’s the right case, we have to be worried, I think, in the long run about setting precedent cases. Because then it’s gonna make it much tougher in ten or twenty years to bring. So, these are really weighty questions, and I don’t think that there’s any definite questions that we’re gonna have after this Google hangout is over, and I hope that people watch this, though, and I hope that the conversation continues in the blogs and twitter and facebook, and that maybe in a year or two when this comes up, kind of a similar case, we’re all able to come back here and have a civil conversation once again, about what’s a really important issue.

And I think it’s really important that we all, as committed secularists generally, come together and have rational conversations about this, because if we tear each other apart on this, then there’s no way we’re gonna be able to look at those really obvious cases of separation of church and state, and make sure that we’re all working together on that stuff. So, thanks again, Dan, for having us, I appreciate it.

Daniel Fincke: James, one minute, and then I’ll take ten seconds, twenty seconds.

James Croft: I guess all I want is again just to echo Michael’s words of thanks, I think it’s been a fascinating conversation, and I’ve appreciated to hear the passionate views on all sides of this argument. I guess, all I would say is, if I… let’s grant as a hypothesis that Neil is right, and there’s a good legal case to be made against this memorial. I think, in my view, that that would be a problem with our interpretation of the law or our laws, and not a problem with the memorial.

Because I think that there are versions of secularism which exist, which take a sophisticated and nuanced view of what it means to promote religion, and what freedom of religion actually means, which would allow this memorial and celebrate this memorial as a legitimate expression of horror at a historical tragedy. I don’t think that this memorial poses any threat to my freedom of religion, or my freedom of conscience. I don’t think any argument has been given as to why it should, substantively.

I’m not particularly moved by technical aspects of the law. I think that we should look at what the laws are meant to achieve, what sort of society we want to live in, and ask, Is this the sort of memorial that we think the government should be building, and I think it is. I think the last thing is to say that if we want our community to be viewed as sensitive, intelligent, thoughtful members of a national community, why not start a conversation like this with the people who wanted to build the monument a long time ago when it was proposed, instead of sort of half threatening, not quite threatening law suits after it’s been okayed. I think that we should engage in conversation and dialogue with people, and express our views in much less declarative ways, and then we might not get the sort of enormous backlash that we’ve already seen all across the commentary on this issue.

Daniel Fincke: Thank you. And I just want to echo everything James just said, and I just want to stress again, that if we fight every issue, even when… even if it’s just a matter of the technicalities of the law, and it’s the spirit of the law, which is preventing the imposition of religion, preventing the government telling us we should be religious or follow a particular religion, it looks like we’re out to screw the religious any time we can on a technicality.

And there are more rulings that go in favor of the religious that they’re exploiting. They do terrible things. You know, prayers, you know, like the inauguration of Obama was practically a religious service. I mean, it was religious in character. It was offensive. It upset me, it hurts me as a secular person and an atheist. There are so many things they do, that they can get away with. And they take this, “We can get away with it, let’s push it” line. And I want to say this is one of the rare cases where I actually differ with FFRF and AA on these kinds of issues, because I’m against the chaplain for the Congress, and I’m against Faith-based Initiatives, I’m against all of this stuff. The issue is, on this issue, yeah, we might be able to get ‘em technically on the law–I don’t think we can, but we might–we shouldn’t, is my point.

Okay, I’m gonna thank everyone for being here again, and on Sunday, I will be interviewing on The Camels With Hammers Show Anita Finlay who wrote a book about sexism against Hillary Clinton in the 2008 presidential campaign, so please tune in for that. Goodnight everybody!

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.

  • Berry

    Neil seems aware that current Establishment clause jurisprudence is a total mess, but is still convinced that the memorial is a violation. I don’t think he ever explicitly mentioned what test he thinks it fails, or which prong of that test and why. I wish he had done so.

  • Criamon

    Dan, this was really well done. Everyone was able to articulate all their points and counterpoints in a very productive way. It allowed an earnest examination of ideas and didn’t end up in reflexive tribalism. I’m so glad I got to hear all the thoughts clearly.

  • Criamon

    I have a background thought on the particular context of the way we think of the nature of the event and the way it was prosecuted against the Jews in particular. I’m certainly not a denialist in any way but there are aspects about what happened before the implementation of the Final Solution against the Jews that are often missed. I think they are important because they speak to how German culture could give rise to something so vile.

    One can think of the holocaust as a confluence of three different ideas culminating in the worst possible way. The first is German nationalism, whose actual genesis in the 19th century was much more innocent. The second was eugenics, and the mainstreaming of eugenics ideas in the German medical community and then extending that through public policy. The third is straight up anti-Semitism, the long history of which in Germany is well documented.

    An important thing that I think is missed when people talk about the holocaust historically is that there is merit to the idea that the ‘Jewishness’of the event was an ‘add-in’. It was, but the ‘adding-in’ was by anti-Semitic Germans themselves during the event. That is, the eugenics movement and the mainstreaming of it in public policy was the first event that really matters that gets you to a holocaust. Simply, they misread science and ended up with misguided goals about populations. Then they rationalized horrible ideas about violating one’s ‘personal eugenics rights’ (to invent a term) in favor of their goals. This direction of German public policy was pretty much already underway when the anti-Semites globed onto it because misguided ideas of populations fit right in as a rationalization for their racism.

    After the event, the Jews were obviously the largest homogenous group of victims. So there was a very understandable ‘Semitic-centric’ nature of the problem of what to do next for the international community. I think this had the effect of distorting the nature of the event after-the-fact in the eyes of the popular public. It became the symbol of the ultimate extension of anti-Semitism. This is a distortion because the anti-Semitism, although despicable, wasn’t the key problem. The key problem was the eugenics. Even now in the US we’d say it’s fine to be an anti-Semite, as long as you’re not also a murderer on those same grounds. This is not to say that anti-Semitism wouldn’t be a problem without eugenics – obviously it would. This is to say that the key here is the willingness to kill in service of policy goals. That the (an) object of such policies were Jews is a product of anti-Semitism. That there was a policy is a result of misguided eugenics.

    We think of the event through that Jewish framework now. I think that’s somewhat regrettable, because the larger lesson on enshrining a policy framework for mistreating and killing people is much more important point of emphasis and in some ways our single-group-centric way of viewing the events detracts from this. It didn’t start with the Jews – the monstrosity predates the anti-smites glomming on.

    All that said, the context the public knows now is the world we’re operating in and my point here is a little pedantic, I know. As such I do agree with you that this particular battle is probably inadvisable. Moreover, I do agree about the spirit of the establishment clause that you’ve identified. I just lament that perhaps the strength of the association to the event contributes to our missing some more important points, and that we’d be better served with a better perspective, the first step of which might be best engendered by weakening this association.


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