Appellate court: Ground Zero cross can stay

Score another victory for common sense. An appeals court affirmed a lower court decision to toss out a lawsuit against the National September 11 Memorial and Museum that sought to bar the display of the “9/11 cross,” the artifact that emerged from the wreckage of the World Trade Center attacks. The group American Atheists tried to argue that the display violated the separation of church and state, while its defenders noted that this was a historical artifact and not an endorsement of religion:

A memorial cross at the National September 11 Memorial and Museum in New York can remain at the newly-opened facility, an appeals court ruled Monday.

A three-judge panel of the 2nd U.S. Circuit found that the cross, located at ground zero, was “a symbol of hope” and historical in nature. It did not intentionally discriminate against a group of atheists who sued to have it removed, they ruled.

American Atheists wanted the cross removed, or a plaque installed that commemorated the atheists killed during the attacks. That was the only way, they argued, that the alleged endorsement of religion could be balanced out. The 2nd Circuit disagreed with the entire premise, concurring with the original ruling that the inclusion of the cross has always had a secular and historical intent rather than religious:

In 2013, U.S. District Judge Deborah Batts dismissed the lawsuit, and a three-judge panel of the 2nd U.S. Circuit Court of Appeals upheld her ruling in a unanimous decision on Monday.

“As a matter of law, the record compels the conclusion that appellees’ actual purpose in displaying The Cross at Ground Zero has always been secular: to recount the history of the terrorist attacks of September 11, 2001, and their aftermath,” Circuit Judge Reena Raggi wrote for the court. …

A lawyer for the nonprofit group American Atheists, which filed the lawsuit, did not immediately return a call for comment. The group had argued on appeal for a plaque next to the cross commemorating the atheists who died in the attacks.

Mark Alcott, a lawyer for the museum, said his client was pleased the court had found the “actions of the museum’s curators in depicting the historical events surrounding 9/11 … to be secular in purpose and intent.”

The unanimous decision made a point of stating that neutrality toward faith under the First Amendment prohibition of a state establishment of religion does not require “a brooding and pervasive devotion to the secular,” quoting an earlier case precedent:

In short, neutrality is not so rigid and absolute a principle as to command “a brooding and pervasive devotion to the secular.”  School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring); see also Skoros v. City of New York, 437 F.3d 1, 17 (2d Cir. 2006).  Indeed, the Supreme Court recently reiterated that caution when, in rejecting an Establishment Clause challenge to legislative prayer, it observed that the Constitution no more permits the mandating of “a civic religion that stifles any but the most generic reference to the sacred” than it permits prescribing a religious orthodoxy …

Lemon instructs that for challenged government action to satisfy the neutrality principle 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 plaintiffs’ argument would have eliminated any mention of faith in government facilities, even to note historical significance and their context:

Thus, the Establishment Clause is not properly construed to command that government accounts of history be devoid of religious references.   Nor is a permissible secular purpose transformed into an impermissible religious one because the government makes an historical point with an artifact whose historical significance derives, in whole or in part, from its
religious symbolism.

Furthermore, the argument that the display disadvantages atheists is never supported by any evidence submitted by the plaintiffs except by conjecture:

A reasonable observer would further know that there is no distinct artifact from which atheists, as a group, drew hope and comfort in the aftermath of September 11.  Thus, this is not a case in which appellees have chosen to display a symbol of hope embraced by religious believers at Ground Zero while at the same time refusing to display a symbol of hope embraced by nonbelievers at Ground Zero. …

From the totality of these circumstances, a reasonable observer would understand that The Cross at Ground Zero, while having religious significance to many, was also an inclusive symbol for any persons seeking hope and comfort in the aftermath of the September 11 attacks.    Such an observer would not understand the effect of displaying an artifact with such an inclusive past in a Museum devoted to the history of the September 11 attacks to be the divisive one of promoting religion over nonreligion.  Nor would he think the primary effect of displaying The Cross at Ground Zero to be conveying a message to atheists that they are somehow disfavored “outsiders,” while religious believers are favored “insiders,” in the political community.

The decision takes just a few pages to dismantle the American Atheists argument in its totality. That will weigh heavily on the prospects for an appeal to the Supreme Court to keep the case alive. The plaintiffs in this case would have to argue that the totality of the 2nd Circuit unanimous opinion was in error, rather than on some narrow grounds had the appellate court decided to focus on one issue. They will still probably appeal anyway just to see whether they can catch the court on a whimsical moment, but the unanimous and broad ruling here will probably discourage the Supreme Court from grating cert, which would put an end to the case entirely.

The 9/11 Cross will continue to be displayed in the 9/11 Museum for a long time to come, it seems. That’s a victory for unbowdlerized history, and for common sense and liberty as well.