Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, July 28, 2014

Second Circuit upholds display of 9/11 cross in the National September 11 Museum

A panel of the United States Court of Appeals for the Second Circuit today unanimously upheld against Establishment Clause challenge the display of a 17-foot cross from the wreckage of the World Trade Center in the National September 11 Museum. (HT: @Edmannino) The decision also rejects an Equal Protection Clause challenge premised on the denial of funds for an accompanying symbol commemorating atheists. Judge Raggi wrote the opinion for the court in American Atheists, Inc. v. Port Authority of New York and New Jersey, in which Judge Lynch and Judge Chin joined. 

From the opinion's concluding summary:

1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the 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.

2. In 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.

The outcome seems plainly correct. The court's extensive reliance on Lemon and relatively light discussion of Town of Greece will be disappointing to those (like me) who think the methodological approach of Town of Greece should apply to Establishment Clause analysis beyond legislative prayer.


Walsh, Kevin | Permalink