A cross-shaped beam recovered from the wreckage of the World Trade Cener on display in 2005. It is now an exhibit in the 9/11 museum. (Samuel Li)
A cross-shaped beam found in the wreckage of the 9/11 terrorist attacks can be displayed at the Ground Zero museum without violating the Establishment Clause because the artifact helps tell the story of the attacks without endorsing religion in any way, a unanimous panel of the U.S. Court of Appeals for the Second Circuit ruled on Monday.
The judges rejected a challenge by American Atheists, an organization which objected to displaying the relic and then demanded public recognition that nonbelievers were among victims and rescue workers.
In a 3-0 opinion by Circuit Judge Reena Raggi (See Profile), the judges parsed the U.S. Supreme Court’s precedent on church-state overlap—Lemon v. Kurtzman, 403 U.S. 602 (1971)— and found no constitutional reason to either bar the item from public display or to order a commemoration to atheists.
American Atheists v. Port Authority of New York and New Jersey, 13-1668-cv, arose from the Southern District, where Judge Deborah Batts (See Profile) granted the defendants summary judgment last year (NYLJ, April 3, 2013).
But it is rooted in the discovery of the beam on Sept. 13, 2001, while hundreds of workers and volunteers were rummaging through the debris in search of survivors and remains. One construction worker, Frank Silecchia, found a 17-foot column and cross-beam that resembled a Latin cross. The item was erected at the recovery site and became a symbol of hope and healing. It was blessed by a Franciscan priest, who began offering masses at the site for Ground Zero workers.
Over the years, the cross was preserved and stored at various locations until it was permanently moved to the September 11 Memorial and Museum site. The site includes an outside memorial, and an indoor museum beneath the memorial.
At issue in American Atheists was whether a government-supported museum could display a symbol with obvious religious significance without overstepping the Establishment Clause.
The Second Circuit’s analysis relied primarily on Lemon v. Kurtzman, and the three-part test the Supreme Court established to guide the lower courts.
Under the so-called Lemon test, a government action is neutral and constitutionally acceptable if it: has a secular purpose; has a primary or principal effect that neither advances nor hinders religion; and does not foster excessive entanglement between government and religion.
Raggi, joined by circuit judges Gerald Lynch (See Profile) and Denny Chin (See Profile), rejected the American Atheists’ position that because the cross-shaped artifact is a tangible illustration of faith it is therefore a religious rather than secular symbol.
“The Establishment Clause is not properly construed to command that government accounts of history be devoid of religious references,” Raggi wrote in a 42-page opinion. “Nor is a permissible secular purpose transformed into an impermissible one because the government makes an historic point with an artifact whose historical significance derives, in whole or in part, from its religious symbolism.”
Similarly, on the second Lemon prong—primary effect —the judges said a reasonable observer would view the cross along with hundreds of other artifacts as merely “ensuring historical completeness, not promoting religion.”
The circuit said the display does not violate the excessive entanglement prong because there is no evidence that religious authorities had anything to do with displaying the object at a public museum.
Finally, the court said the fact that there is no plaque or other commemoration to atheists does not create an equal protection problem.
“A reasonable observer would … know that there is no distinct artifact from which atheists, as a group, drew hope and comfort in the aftermath of September 11,” Raggi wrote. “Thus, this is not a case in which appellees have chosen to display a symbol of hope embraced by religious observers at Ground Zero while at the same time refusing to display a symbol of hope embraced by nonbelievers at Ground Zero.”
The appeal was argued March 6 (NYLJ, March 7) by: Edwin Kagin of Tampa, Fla., the national legal director for American Atheists, who died shortly after oral arguments; and Mark Alcott, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, for the museum; and Megan Lee of the Port Authority. Several organizations also appeared as amicus curiae, including the American Center for Law & Justice, the National Legal Foundation and the Becket Fund for Religious Liberty.
Alcott said the ruling is of “considerable” consequence because it reinforces that “a museum can display items of historical, cultural and artistic significance even if they happen to also have religious significance.” He said it is clear that the museum is not promoting religion, but “depicting what happened on Sept. 11 and its aftermath.”
American Atheists, in a statement, indicated it was disappointed the court rejected the equal protection argument.
“Atheists died on 9/11, members of our organization suffered in lower Manhattan on that day, and our members helped with the rescue and recovery efforts—yet we are denied equal representation in the National Museum,” American Atheists President David Silverman. “There are no better examples of Christian privilege and prejudice in this country than this decision and the refusal of the museum commission to work with us to honor atheists who died and suffered on 9/11.”
In a press release, Eric Baxter, counsel for the Washington-based Becket Fund, said the decision is both “enormously important” and “common sense.”
“The history of 9/11 would not be complete without including the impact the Ground Zero cross had in inspiring rescue workers and Americans generally,” Baxter said. “Displaying the cross in a display about ‘Finding Meaning at Ground Zero’ is perfectly appropriate.”