Dan Fincke hosted a discussion about the controversy over the FFRF and American Atheists opposing the use of a Star of David as a symbol for a Holocaust memorial in Ohio and it’s really worth watching. Kudos to Dave Muscato, PR director for AA, for taking part in the discussion despite knowing that most of the others involved were opposed to the group’s position. The video below, then my take on it. For a full transcript, go here.
I’m going to limit my comments to the legal question because that is my wheelhouse, so to speak. Is the use of that symbol for the Holocaust museum a violation of the Establishment Clause of the First Amendment? The answer is almost certainly no. There are two tests that the courts could apply to the situation, the Lemon test and the endorsement test. Let’s take them one at a time.
As I’m sure my longtime readers know by now because I’ve written about this a bajillion times, the Lemon test has three prongs: purpose, effect and excessive entanglement. I think it is extraordinarily unlikely that any court would find a violation of any of those prongs in this situation. There is a clear secular purpose (memorializing the victims of the Holocaust) and no plausible argument by which the use of the Star of David as a symbol here would have any tangible effect of “advancing” the religion of Judaism. Nor is there any excessive entanglement by any reasonable criteria.
The endorsement test requires that the court ask whether an “objective observer” who knows the relevant facts of the situation would perceive the government’s actions as an endorsement of a particular religion. The answer to that is clearly no in this case. Could anyone seriously believe that in a country that is 75% Christian and about 1% Jewish that the government is endorsing Judaism? Such an argument would be laughed out of court, as it should be. So as a legal question, I think this one is pretty easy. There’s not a chance in hell that any court would conclude that the Establishment Clause has been violated here.
But let me say this: I also don’t like some of the vitriol that has been aimed at FFRF and AA about this. I’m especially disturbed by any suggestion that anyone here is being anti-Semitic or, bizarrely, a Holocaust denier. I know Dan Barker and Andrew Seidel of FFRF and I know Dave Silverman, Dave Muscato and Amanda Knief of AA. Every one of them are terrific people and important activists. They have all done great work on behalf of atheism and separation of church and state. I think this stance is misguided, but I do not for a moment question their sincerity or their good intent. Disagreements over strategy are inevitable in any community, but let’s give one another the presumption of good will and keep those disputes civil and substantive.