Second Circuit Rejects Atheists’ Challenge to 9/11 Museum’s “Cross at Ground Zero”

Editor’s Note: This posting is republished from the RLUIPA Defense Blog, with permission. The blog is located at: http://www.rluipa-defense.com/home.cfm

In American Atheists v. Port Authority of New York and New Jersey, No. 13-1668 (2d Cir. July 28, 2014), the U.S. Court of Appeals for the Second Circuit held that the National September 11 Museum’s (Museum) display of a 17-foot high column and cross-beam retrieved from World Trade Center debris that gave many the impression of a Latin cross (a symbol associated with Christianity) did not violate the U.S. Constitution’s Establishment and Equal Protection Clauses. The column and cross-beam, known as “the Cross at Ground Zero,” is a part of the Museum’s exhibition called “Finding Meaning at Ground Zero” (to view the Cross at Ground Zero, click here). The exhibit includes the following textual panel:

Workers at Ground Zero struggled to come to terms with the horrific circumstances in which they found themselves. Some sought to counter the sense of utter destruction by holding on to something recognizable, whether a metal bolt or shard of glass or a marble salvaged from the debris. Others, grappling with the absence of survivors and the regular recovery of human remains, found purpose by forging relationships with relatives of a particular victim, carrying a photograph or memorial card to bolster their resolve.

Some questioned how such a crime could have been perpetrated in the name of religion, and wrestled with how a benevolent god would permit the slaughter of thousands of innocent people. Many sought comfort in spiritual counseling, religious symbols, and the solace of ceremonies and ritual.

Some workers turned to symbols of patriotism to reinforce a sense of commitment and community, hanging flags across the site. American flags reinforced a sense of commitment and community, and the repeated promise of “God Bless America” inspired a sense of duty. The words “Never Forget” commanded a pledge of unswerving dedication.

Three years before the Museum opened, the American Atheists, Inc. and certain of their members (Atheists) sued, contending that any display of the Cross at Ground Zero would violate the U.S. Constitution, but the United States District Court for the Southern District of New York found against them. On Appeal, the Atheists conceded that the Cross at Ground Zero is an historic artifact worthy of display in the Museum, and limited their challenge to the manner in which the Museum would display the cross. In particular, they asserted that the display of the cross would impermissibly promote Christianity in violation of the Establishment Clause and would also deny the Atheists equal protection of the laws, because the Museum does not display items acknowledging atheists, even though atheists were among the victims and rescuers on September 11. Although the Atheists acknowledge that there is no historic artifact that speaks to the atheists who lost their lives or atheists’ rescue efforts, they alleged the District Court erred in ruling against them because they were willing to finance an “atheists’ recognition plaque” for display in the Museum with the Cross at Ground Zero.

In evaluating the Atheists’ Establishment Clause claim, the Second Circuit applied the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), which “instructs that for challenged government action to satisfy the neutrality principal of the Establishment Clause, it must (1) ‘have a secular . . . purpose,’ (2) have a ‘principal or primary effect . . . that neither advances nor inhibits religion,’ and (3) ‘not foster an excessive government entanglement with religion.’”

The Second Circuit found that the display of the Cross at Ground Zero does not violate the Establishment Clause because the stated purpose of displaying it – to tell the story of how some people used faith to cope with September 11 – is genuine, and an objective observer would believe the purpose of the display to be secular. In addition, “an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled ‘Finding Meaning at Ground Zero;’ the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context.” Finally, “there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.”

The Second Circuit also rejected the Atheists’ Equal Protection Clause challenge: “In the absence of any evidence of discriminatory animus toward the atheists, the Museum did not deny equal protection by displaying the Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.”

The opinion can be accessed at: http://www.rluipa-defense.com/docs/9.11_Decision.pdf