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Atheist Group's 'Cross at Ground Zero' Appeal Loses in 2nd Cir.

By Mark Wilson, Esq. on July 29, 2014 | Last updated on March 21, 2019

An atheist group has lost its appeal in the Second Circuit, where it sought to have "The Cross at Ground Zero" -- the well-known steel-beam cross from the World Trade Center wreckage in New York City -- removed from the September 11 museum.

"The Cross at Ground Zero" was a steel beam found among the debris of the World Trade Center after the 9/11 terrorist attacks that formed the shape of a Latin cross. It quickly became a rallying point.

After several years at the Ground Zero site, the cross was moved to a warehouse, where it remained with other artifacts from the site until it was moved to the National September 11 Memorial and Museum.

An Endorsement of Christianity?

A group called American Atheists objected to the inclusion of "The Cross at Ground Zero" as part of the "Finding Meaning" exhibit at the museum, which chronicles the ways in which different groups of people came to terms with the day's horrific events.

The atheists argued that the inclusion of the cross was not only an endorsement of Christianity, but would lead an observer to exclude the ways in which atheists drew "hope and comfort in the aftermath of September 11." They brought an Establishment Clause challenge and an equal protection challenge to including the cross in the museum.

When Life Hands You an Establishment Clause Challenge, Make Lemon-ade

Because American Atheists argued that the inclusion of the cross violated the Establishment Clause of the First Amendment, the Second Circuit went back to the tried-and-true three-prong test from Lemon v. Kurtzman. The test requires the government to prove that the challenged action: (1) has a secular purpose, (2) neither advances nor inhibits religion as its primary effect, and (3) doesn't foster an excessive entanglement of government and religion.

The court found that there was a secular purpose, as displaying the Cross at Ground Zero was meant as an historical artifact relating to how people coped with the events of 9/11, not an endorsement of Christianity. The principal effect was neither to advance nor inhibit religion, either. Far from attempting to advance Christianity, the Second Circuit reiterated the historical significance of the cross, which appeared alongside other secular artifacts in the museum. As you might expect, the court also found that the inclusion of the cross as one of many historical items was not an excessive entanglement of government and religion.

As the U.S. Supreme Court did in 2005's Van Orden v. Perry, the Second Circuit emphasized here that the cross, while a religious symbol, was perfectly amenable to having a non-religious function as well. Its placement alongside other non-religious symbols in a thematically coherent, secular museum cemented its non-religious character, making American Atheists' argument a tough one indeed.

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