In American Atheists v. Port Authority of New York and New Jersey, the Second Circuit yesterday affirmed the district court’s March 28, 2013 dismissal of a lawsuit challenging the display in the National September 11 Museum of a cross-shaped beam (known as the “Cross at Ground Zero”) recovered from the World Trade Center wreckage.
Plaintiffs asserted that displaying the cross “without any accompanying plaque or similar item acknowledging that atheists were among those who lost their lives on September 11, 2001, or who participated in ensuing rescue efforts violates the Constitution’s Establishment and Equal Protection Clauses” and related state laws.
In assessing the plaintiffs’ Establishment Clause challenge, the court applied the three-factor test articulated by the Supreme Court in Lemon v. Kurtzman (1971). Under that test, in order for challenged government action to satisfy 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 held that displaying the cross did not violate the First Amendment’s Establishment clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. 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; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
In addition, “[i]n the absence of any Establishment Clause violation or any
evidence of discriminatory animus toward 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.”