In my book, The Tragedy of Religious Freedom, I have a chapter that tells “A Tale of Four Crosses” in an effort to flesh out my approach to questions of religious liberty, and specifically government display of religious symbols. One cross in the tale is the September 11 cross–a collection of beams which fused together amid the debris of the tragedy and was discovered by a rescue worker. The cross provided inspiration, solace, and hope to many people who were grieving at the time. After various developments, the state decided to display the cross in a museum about the events on that day, but this was opposed by American Atheists, Inc. I conclude in that chapter that, applying my method (and not the Supreme Court’s tests), display of the cross in a state museum is almost certainly constitutional.
Applying the Supreme Court’s tests, the United States District Court for the Southern District of New York agreed. In an opinion issued March 28, the court granted the defendants’ motion for summary judgment in a case brought by American Atheists, Inc., which challenged the constitutionality of displaying the September 11 cross in a state museum. The Port Authority donated the cross to the National September 11 Memorial and Museum at the World Trade Center Memorial Foundation, Inc. The Foundation attempted to display the cross in the museum, but American Atheists sued to block this from happening on Establishment Clause grounds.
That claim was rejected by the district court (Batts, J.). After finding that the activities of the Foundation constitute state action, the court laid out the Establishment Clause standard in Lemon v. Kurtzman and the Supreme Court’s subsequently elaborated “endorsement” test. The parties agreed that display of the cross satisfied Lemon’s requirement of “secular purpose,” inasmuch as the reason for its display was “historical and secular.” As to secular “effect” (which generally is the same as perceived “endorsement” in this context), the court said this–and note in particular the permissibility of “acknowledgment” on the part of the state:
[S]ince the cross is housed in the Museum, its inclusion–in the September 11 Museum context with placards to explain why it was included in the Historical Exhibit–does not advance or endorse religion.
Plaintiffs assert that because the cross was used during Christian religious ceremonies, it is unlike historic religious objects that are housed in museums. They, however, cite no case law making such a distinction. Rather, the fact that the artifact is housed in the Historical Exhibit helps to negate any “sacred message” even though it “undeniably has a religious message.” . . . . Also helping to negate any potential endorsement is the fact that the explanatory placards will accompany the artifact . . . . Moreover, the acknowledgement that many rescuers and volunteers found [solace] in the cross is not an endorsement of their religion . . . .
Plaintiffs also argue that because the artifact is seventeen feet tall, its size signals endorsement because no other artifact is as large as the cross . . . . Although the size of the item may be a factor in determining whether government endorsement exists, here, the cross is seventeen feet tall because that was the artifact’s size when it was found.