The atheist group that filed a lawsuit demanding that the operators of the National September 11 Memorial and Museum (9/11 Museum) remove a steel cross from the museum’s grounds based its complaint on the First Amendment’s Establishment Clause.
That clause states simply, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Yet either by virtue of case law, scholarly opinion or misinterpretation, the Establishment Clause is deemed to prohibit any government entity (city, county or state) from making a law that establishes an official religion, favors one religion over another, favors religion over non-religion or vice versa.
In its complaint, the group American Atheists maintained that display of the cross at the museum was unconstitutional because it is a symbol of a religion. If that argument is taken to its logical conclusion, the display of no religious symbol is also unconstitutional as it could be argued that the non-display of a religious symbol is an indication that the government favors non-religion. The fact that the Establishment Clause speaks directly to the role of Congress, yet Congress had absolutely nothing to do with the display or non-display of the cross, was never addressed
What’s in a designation?
Considering that the Establishment Clause is interpreted to forbid indications that the government favors religion or non-religion, if the basis for the atheists’ lawsuit is accepted, both the display and non-display of religious symbols are unconstitutional. Consequently, had the atheist group been successful in its suit, non-atheist groups could have rightfully filed their own lawsuits, claiming that removal of the cross, and replacement with no symbol, was essentially the display of a symbol of non-religion.
The concept of interpreting the non-display of a religious symbol as the display of a symbol of non-religion is admittedly convoluted. Yet it directly addresses the conflict of classifying a religious symbol as a violation of the Establishment Clause while denying that the non-display of a religious symbol (i.e. a symbol of non-religion) is also a violation.
Yet the larger question is, does the government show favor to a religion (or non-religion) by simply allowing the display of an artifact that has the same appearance as a religious symbol?
The court rulings
In March of 2013, Judge Deborah A. Batts of Federal District Court in Manhattan dismissed the American Atheists suit stating,
“No reasonable observer would view the artifact as endorsing Christianity. The cross does not create excessive entanglement between the state and religion.”
Judge Batts also stated the plaintiffs failed to find any form of intentional discrimination or cite any adverse or unequal treatment on the basis of their religious beliefs.
On July 29, 2014 Judge Batts’ decision was upheld by a three-judge panel of the 2nd Circuit Court of Appeals. In that court’s ruling, Judge Reena Raggi noted that an observer would understand the cross to be an inclusive symbol for any persons seeking hope and comfort in the aftermath of the 9/11 attacks.
She went on to state, “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.”
The 9/11 cross is a section of building material pulled from the rubble of a World Trade Center building, (Tower 6). As such, it would appear that American Atheists was more concerned with using a tragedy to make a statement against religion, than in proving a violation of the First Amendment.
To some, the 9/11 cross is nothing more than a section of “T” beam; to others it’s a symbol of consolation. Some view it as a grave marker, erected in recognition of all who died in the 2001 terrorist attack on the World Trace Centers. Clearly, symbolism is in the eye of the beholder. Lawsuits based on the denial of that concept are destined to fail.