There is an interesting potential lawsuit brewing in Ohio over a Holocaust memorial that will feature a prominent Star of David on the Ohio Statehouse lawn. The memorial, designed by Daniel Libeskind, has been criticized as violation by the separation of church and state by civil libertarians. The case could present a perfect vehicle to explore the meaning of the Supreme Court’s recent decision in Salazar v. Buono in 2010 where a sharply divided court allowed a cross to remain on public lands as a memorial for the dead of World War I.
The Holocaust Memorial has been approved by the Capital Square Review and Advisory Board and will be built with $1.8 million in private funds. It is the Star of David that makes the design so controversial. Ohio Jewish Communities Executive Director Joyce Garver Keller, however, insisted that the symbol is a warning about the dangers of abuse in legislatures: “The Holocaust did not start in concentration camps. It did not begin with the ovens and smokestacks. It began in the halls of government, with laws being passed by a democratically-elected government that took away rights of Jews and others, and eventually let to the holocaust.”
However, the Freedom From Religion Foundation argues that there were at least five million non-Jewish victims of the Holocaust, including gays, Jehovah Witnesses, Roma Gypsies, and the disabled. They object to the need for a prominent religious symbol. Keller insists that while the memorial features the defining symbol of the Jewish faith, it memorializes everyone.
That rationale tracks the decision in Salazar v. Buono, where the Court voted that a cross placed as a memorial on public lands for soldiers who died in World War I. The Ninth Circuit has ruled the cross unconstitutional. The district court also found a violation but the Court narrowly ruled that the specific facts of the case allowed the cross to pass constitutional muster:
By dismissing Congress’s motives as illicit, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage. Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World War I. Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message. Cf. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 661 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part) (“[T]he [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall . . . because such an obtrusive year-round religious display would place the government’s weight behind an obvious effort to proselytize on behalf of a particular religion”). Placement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.
It was a splintered decision with three different rationales and a narrow margin of 5-4 on the Court. However, unlike the Ohio case, the cross was not put on the property by order of the government and had been at the location for decades.
The Salazar decision signaled an effort at greater accommodation for religious symbols that are used for a broader meaning than an “imprimatur on a particular creed.” However, the Ohio dispute presents a closer question. There are various artistic expressions possible for the Holocaust, which extended to both the Jewish and non-Jewish communities. Yet, this Star of David is expressed artistically in the design. Yet, the fear is that such accommodation will create a slippery slope for other religions. For years, Christian groups have fought to add crosses to public areas. They could do so by calling such displays memorials. As other religions demand their own prominent symbols, we could be left with the dangerous selection of one religion over another.
Notably, the vote was 8-1 with Richard Finan, chairman of the advisory board and former president of the Ohio Senate, voting against it on separation grounds.
It is an ironic twist. Jewish groups have long joined civil libertarians to oppose Christian symbols on the basis of separation of powers principles. As some argue now with regard to the Star of David in Ohio, Christian groups insisted that the cross means more than just Christianity. Many Americans believe that the entanglement of government and religion is the greatest threat to liberty. This case could further lower the wall of separation of church and state if successful. It is an ironic twist given the purpose of reminding people of the threat of abuse of minority groups by the government. That symbol itself can only be maintained by expanding the ability of the government to erect religious symbols.
This case could have the elements missing in Salazar — a new memorial put up by the government through a direct approval and construction plan. The Court stressed in the decision that “Time also has played its role. The cross had stood on Sunrise Rock for nearly seven decades before the statute was enacted.” Time has played no role here. This may all play out in court and the result could have great implications for the line drawn of separation between church and state.