The American Atheists organization has sued the National September 11 Memorial and Museum over the installation of the “9/11 cross” in the museum. The organization’s president, David Silverman, insists that it will not “allow this travesty to occur in our country.”
The 20-foot cross — two steel beams that had held together as the building collapsed — was discovered in the rubble of Ground Zero on September 13, 2001, by construction worker Frank Silecchia. The 9/11 cross became a venerated object, and many of those who were searching for survivors and clearing debris from the “pit” took solace from its existence. On October 4, 2001, it was moved to a pedestal on Church Street, where it was treated as a shrine by visitors to Ground Zero for the next five years. In October 2006 it was removed to storage, and in July 2011 it was returned to the site for installation in the National September 11 Memorial and Museum.
The cross will not be displayed in the memorial; it will be included in a section of the museum featuring ways workers sought to “[find] meaning at Ground Zero.” Its inclusion is for historical purposes, and not as a religious memorial. Yet the American Atheists decided that this was offensive and filed a lawsuit alleging that the display of the cross violated the Establishment Clause of the First Amendment, equal-protection laws, and civil-rights statutes.
Unfortunately for the American Atheists, the law is clearly on the side of the September 11 Museum. The Establishment Clause is the centerpiece of the American Atheists’ case. They argue that “the challenged cross constitutes an unlawful attempt to promote a specific religion on governmental land.” This argument is specious in two separate ways. First, the museum is not a government organization; it is run by a private foundation, and thus its actions should be construed as private speech. Second, the display of the 9/11 cross in the museum falls well within the guidelines for displays of religious objects that the Supreme Court has upheld time and time again.
In one of the landmark cases on the Establishment Clause, Lynch v. Donnelly, the Court held that religious displays on government property were acceptable because “in the line-drawing process called for in each case, it has often been found useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion.” In other words, if there is a secular purpose for the display, it is allowable. One of the examples of acceptable behavior provided by the Court in this case clearly supports the September 11 Museum’s position: “Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith. The National Gallery in Washington, maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and the Resurrection, among many others with explicit Christian themes and messages.”
Lynch v. Donnelly concerned the legality of a crèche on government property; the 9/11 cross is a historical object in a museum. If a crèche is constitutional, how can the 9/11 cross not receive the same protection?
An amicus brief filed by the American Center for Law and Justice in support of the September 11 Museum echoes these points. The ACLJ’s chief counsel, Jay Sekulow, explains that, “in urging the court to dismiss the suit, our brief concludes that ‘a museum — public or private — has the academic freedom to display religiously-themed artifacts of historical or artistic significance. . . . Acknowledging history does not establish a religion, and Plaintiffs’ lawsuit is without merit.”
Eric Baxter, a senior counsel at the Becket Fund for Religious Liberty, emphasizes that “This is even a step further removed from government-endorsed speech, as it is not a government entity that is trying to make some statement with the cross. There is a government landlord, the Port Authority, but the museum that leases the property is run by a private foundation, and the museum makes decisions about what it displays.” Both Mr. Sekulow and Mr. Baxter are confident that the court will reject the American Atheists’ case and affirm the constitutionality of the display of the 9/11 cross.
If the American Atheists’ lawsuit prevailed, it would by implication require the removal of every religious object from every museum in America. This would be a drastic rewriting of history. Religion — as much as the American Atheists despise it — is a part of our national heritage.
— Nathaniel Botwinick is an Agostinelli Fellow at National Review Online.