The 17-foot-tall cross-shaped beams installed on a pedestal at Ground Zero.
The 17-foot-tall cross-shaped beams installed on a pedestal at Ground Zero. (Kris Krug)

A group of atheists tried to convince a Second Circuit panel Thursday that if a museum commemorating the Sept. 11, 2001 terrorist attacks displays a cross-shaped steel beam found in the wreckage of the World Trade Center, it should also be required to display a symbol recognizing atheists who were affected by 9/11.

At issue is whether the cross is a religious symbol or an historical artifact. American Atheists Inc. originally wanted to prevent the museum from displaying the cross at all, saying it would violate their constitutional rights.

Southern District Judge Deborah Batts (See Profile) dismissed that claim in a decision in American Atheists, Inc. v. Port Authority of New York and New Jersey, 956 F. Supp. 2d 321 last March.

“Simply because one object, which is one component of a secular exhibition, is religious does not engender endorsement” of Christianity, Batts wrote. American Atheists appealed.

But in the group’s appellate brief to the Second Circuit, it said the cross could remain in view so long as the National September 11 Memorial & Museum made a “contextual adjustment” to its display. American Atheists v. Port Authority, 13-1668-cv.

See American Atheists’ brief, the museum’s brief, and American Atheists’ reply.

The group did not specify what the “contextual adjustment” should entail.

Second Circuit judges Reena Raggi (See Profile), Gerard Lynch (See Profile) and Denny Chin (See Profile) expressed skepticism and confusion over what exactly the atheists wanted. The judges began oral argument by asking whether it was the inclusion of the cross or exclusion of a comparable atheist symbol that would violate the Establishment Clause of the First Amendment.

Edwin Kagin, the group’s national legal director, responded that the cross’ display violates the First Amendment because “atheists are not being represented in any way,” diminishing the role of atheist victims and rescue workers.

He said its “overwhelming stature”—the cross stands 17 feet tall—gives the impression that “Christianity is the predominant religion in the United States,” which he described as a “dangerous” notion.

Chin then asked Kagin to clarify what relief the atheists sought. “What we want is some kind of display, even a plaque, that says ‘Atheists died here, too,’” he replied.

Rescue workers found the “Ground Zero cross” in the rubble of the World Trade Center two days after the attacks. The cross-shaped beam was originally part of the World Trade Center’s structure. Rescue workers viewed it as a symbol of hope in the nine-month recovery effort, and priests included it in religious services held at Ground Zero.

From 2006 to 2011, the cross was held at Saint Peter’s Roman Catholic Church in lower Manhattan. The Port Authority then donated the artifact and transferred its legal title to the museum, which is scheduled to open this spring.

According to the museum’s brief, the cross will be part of a historical exhibit telling the narrative of the 2001 attacks and 1993 World Trade Center bombing and their aftermath. Among more than 800 mostly secular artifacts are a handful of religious symbols, including the cross, an urn of holy water from the nine rivers of India and a silver plate featuring the Buddhas of Bamiyan gifted to the city by the governments of India and Afghanistan, respectively.

Mark Alcott, a partner with Paul, Weiss, Rifkind, Wharton & Garrison who represents the museum, argued Thursday that the cross is an integral part of the historical record of the events before, during and after 9/11. He said there is a difference between neutrally displaying an artifact while explaining its historical significance and displaying it in a religious way that invites people to pray before it.

“Of course it was regarded as a religious object to these individuals” who participated in the rescue efforts, Alcott said. “That’s part of history.”

The judges seemed dubious of Kagin’s suggestion that the presence of atheists at Ground Zero, whether as victims or rescuers, deserved a plaque of acknowledgment.

“I’m not sure how a plaque would solve anything,” Raggi said. “If [the cross] is being displayed as part of the historical record of 9/11, a plaque that has no historical significance wouldn’t really give [atheists] equal treatment.”

“We only want to be acknowledged in some way,” Kagin said. “The defendants have not allowed that.”

Raggi also pondered whether the Constitution required that atheists be acknowledged in order to fulfill the Establishment and Equal Protection clauses.

“The reason we don’t have to give equal time to the atheists is because we’re depicting the history of 9/11,” Alcott said after the oral argument. “The atheists as a community have nothing to do with the history of 9/11. Our mission is to tell the history in a truthful way.”

The panel reserved decision.