In American Atheists v. Port Authority of New York and New Jersey, No. 13-1668 (2d Cir. July 28, 2014), the U.S. Court of Appeals for the Second Circuit held that the National September 11 Museum’s (Museum) display of a 17-foot high column and cross-beam retrieved from World Trade Center debris that gave many the impression of a Latin cross (a symbol associated with Christianity) did not violate the U.S. Constitution’s Establishment and Equal Protection Clauses.  The column and cross-beam, known as “the Cross at Ground Zero,” is a part of the Museum’s exhibition called “Finding Meaning at Ground Zero” (to view the Cross at Ground Zero, click here).  The exhibit includes the following textual panel:

Workers at Ground Zero struggled to come to terms with the horrific circumstances in which they found themselves.  Some sought to counter the sense of utter destruction by holding on to something recognizable, whether a metal bolt or shard of glass or a marble salvaged from the debris.  Others, grappling with the absence of survivors and the regular recovery of human remains, found purpose by forging relationships with relatives of a particular victim, carrying a photograph or memorial card to bolster their resolve.

Some questioned how such a crime could have been perpetrated in the name of religion, and wrestled with how a benevolent god would permit the slaughter of thousands of innocent people.  Many sought comfort in spiritual counseling, religious symbols, and the solace of ceremonies and ritual.

Some workers turned to symbols of patriotism to reinforce a sense of commitment and community, hanging flags across the site.  American flags reinforced a sense of commitment and community, and the repeated promise of “God Bless America” inspired a sense of duty.  The words “Never Forget” commanded a pledge of unswerving dedication.

Three years before the Museum opened, the American Atheists, Inc. and certain of their members (Atheists) sued, contending that any display of the Cross at Ground Zero would violate the U.S. Constitution, but the United States District Court for the Southern District of New York found against them.  On Appeal, the Atheists conceded that the Cross at Ground Zero is an historic artifact worthy of display in the Museum, and limited their challenge to the manner in which the Museum would display the cross.  In particular, they asserted that the display of the cross would impermissibly promote Christianity in violation of the Establishment Clause and would also deny the Atheists equal protection of the laws, because the Museum does not display items acknowledging atheists, even though atheists were among the victims and rescuers on September 11.  Although the Atheists acknowledge that there is no historic artifact that speaks to the atheists who lost their lives or atheists’ rescue efforts, they alleged the District Court erred in ruling against them because they were willing to finance an “atheists’ recognition plaque” for display in the Museum with the Cross at Ground Zero.

In evaluating the Atheists' Establishment Clause claim, the Second Circuit applied the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), which “instructs that for challenged government action to satisfy the neutrality principal 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 Second Circuit found that the display of the Cross at Ground Zero does not violate the Establishment Clause because the stated purpose of displaying it – to tell the story of how some people used faith to cope with September 11 – is genuine, and an objective observer would believe the purpose of the display to be secular.  In addition, “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.”  Finally, “there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.”

The Second Circuit also rejected the Atheists’ Equal Protection Clause challenge: “In the absence of any evidence of discriminatory animus toward the 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.” 

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.