The Merits of the WTC Cross Suit

My last post about American Atheists’s lawsuit over the World Trade Center cross has bifurcated in the comments section.  I want to take this post to split of the questions about the legal merits of the case from the question of whether it is wrong for the American Atheists to bring the suit, even if they think the law has been broken.  So, a quick disclaimer: this kind of law (and most kinds of law) are not my area of expertise, I’m mostly asking questions below.  Answers welcome.  (Answers with hyperlinks to sources backing you up, even more welcome!)

So, as far as I can tell, the American Atheists are arguing that it is unconstitutional for the WTC cross to be displayed in the memorial.  For it to be licitly displayed, in their opinion, the memorial would be required to also display symbols of other religions and no religion at all.  So that leads me with some questions.

First of all, I understand the constitutional question arises from the fact that this memorial is being erected and maintained by the government but it is certainly the case that the government can exhibit religious artifacts. To the best of my knowledge, the Smithsonian can mount shows that focus on only one religious tradition. (And just a moment of googling reveals that it does).

So why would this kind of exhibit be kosher? Is there an expectation that the religious works are sanitized by being placed in an art museum? After all, when I visited the Hillwood Estate with Tristyn of Eschatological Psychosis, I didn’t see any of the visitors (including my two Orthodox companions) venerating the icons in the exhibit. Because religious art can be practically deracinated by a museum setting, some religious thinkers have called upon churches to reclaim art from exhibits.

Russian Orthodox icons in British Museum

But even if this is the rationale, the standard seems too fuzzy to be useful. Does it only matter if the government intends for the included pieces to become a focus for worship and pilgrimage? How many acts of unexpected veneration would it take to tip the balance to unconstitutional? Is the problem that the cross under review has been recently blessed, but the consecrations of other exhibits have gone through some kind of diminution by half-life?

To keep the cross on display, the American Atheists claim the memorial would need to also exhibit an atheists/humanist memorial of equal size. To my knowledge, they have not called for any other non-Christian religion to be included. That choice promotes the weird (sort of American) idea that religion is a binary between Christians and atheists. Do the American Atheists think other groups should be included, but expect them to do their own legwork? Is the revised exhibit supposed to be a portrait of the faiths of all American (in which case the memorial would be overwhelmed by tchotchkes) or just reflective of the beliefs of the victims (has anyone done a census of the dead? In NYC, it’s decent odds the Baha’i or Zoroastrians might merit inclusion).

Not to mention the biggest question: What would a humanist artifact look like?

I stick by what I said in the first post: I think it’s reasonable and appropriate for American Atheists to file suit as long as they think the inclusion of the cross is clearly or even ambiguously unconstitutional. The courts exist for the purpose of deciding and clarifying these questions. My blog exists for speculation. I don’t understand how the American Atheists could prevail in their suit, but I’d appreciate your opinions and clarifications.

About Leah Libresco

Leah Anthony Libresco graduated from Yale in 2011. She works as an Editorial Assistant at The American Conservative by day, and by night writes for Patheos about theology, philosophy, and math at www.patheos.com/blogs/unequallyyoked. She was received into the Catholic Church in November 2012."

  • Anonymous

    As an atheist, they have literally no case. American Athiests seem to be very into pushing a confrontational front for their organization. My guess is, the idea is that if they are standing up and "defending" atheists, they think it will lead to more people talking openly about their atheism (and probably more people willing to put their name & money alongside the organization).The idea of putting the cross at the church across the street seems much more practical and appropriate, but I think this was a media suit, not a practical one.

  • http://www.fleshbot.com Kogo

    What's the argument in *favor* of putting the cross into a public building? How believable is it that the real rationale is not "yay Christianity!"?Let me put it this way: People who are opposed to the Park 21 mosque are motivated by the belief that it's a 'victory mosque' for Muslims to say "yay 9/11"! You can decide for yourself whether that's a crazy and/or ungenerous reading. But that's sort of the way I feel about this thing: Not-very-subtle dog-whistle pandering under the guise of ecumenical patriotism.

  • http://www.io9.com Kogo

    *After all, when I visited the Hillwood Estate with Tristyn of Eschatological Psychosis, I didn’t see any of the visitors (including my two Orthodox companions) venerating the icons in the exhibit.*That's exactly the point behind my Broken Windows Theory thing: This sort of thing is establishment–whether fully conscious or not–of civic religion, and that specific religion is Christianity. When a cross–a Christian symbol, no matter what anyone says–is something that gets government real estate "just 'cause" then that establishes a later-useful precedent in a more-coercive establishment of religion.Just to get you where you live, Leah: There's a Yale prof named Joanna Freedman who noted that the American Revolution really took off after the British government *backed down* on many of their taxation demands. The rationale on the part of the Americans was, "Yes, the taxes are now nominal, but by leaving in place the laws, you guys are establishing a *precedent* for future unjust taxation."This sort of thinking survives to this day in the form of opposition to the health care law: Conservatives who oppose it might recognize, on some level, that government provision of health insurance isn't *itself* nefarious, but by having the government involved so deeply in individual welfare and decisionmaking, a dangerous precedent is established. And while I consider that to be crazy on it's face, I myself deploy such thinking when I argue in favor of abortion rights: If a woman's uterus is not a part of her body under her own control but rather–as in El Salvador for example–a potential crime scene under state control, then that's pretty damn dangerous.The issue is legal precedent, moreso than the specifics of this case.

  • http://www.blogger.com/profile/08016230732925516069 Gilbert

    The Atheist argument basically has two steps:(1) Showing a religious symbol=endorsing the religion of which it is a symbol, and(2) Government endorsement of religion=establishment.While I disagree with (2)* it is, to the best of my understanding, valid American law.(1) is, however, very far-fetched. The memorial will also memorialize the story of how people dealth with 9/11 in its aftermath. That story, as a matter of fact, includes this cross. A proposal to omit it is basically a proposal to edit the Christian element out of this part of history. But telling it as it was is not an endorsement of religion. On the contrary, editing the narrative to exclude those historical facts that point to some of the historical actors being Christians would be a fairly explicit disendorsment of Christianity. Which is what I suspect the American Atheists of being after. * And how, you might ask, can one disagree with that?Well, the problem is the government gets to endorse pretty much any philosophical viewpoint that isn't called religious. I would actually prefer the government (mine as well as yours) to get out of the endorsement business altogether. That would mean e.g. no civics lessons in public schools, no anti-smoking campaigns, and no governmental advertisement for abortion. But the government being allowed to endorse all kinds of ideas except one does of course privilege the opponents of that kind of ideas. I just don't see how using a Christians tax dollars to advertise for abortion violates their concience any less then using an Atheists tax dollars to advertise for church-attendance violates the Atheists concience.

  • http://www.blogger.com/profile/07986833157160434927 David Wagner

    Is this a permanent or a temporary exhibit? Either way, the Atheists have no case.If it's temporary, then this is no more an establishment of religion than any other state entity, such as a govt-funded museum, displaying an historic religiously-charged item. There is literally no precedent for holding this unconstitutional.If it's permanent, then it may be necessary for some outside group to take ownership and sponsorship for the cross. That is, if it's going to be located permanently on government land. Capitol Sq Review Bd v. Pinette. But wait, isn't the land itself private? Then what could the Atheists conceivably be suing about? Failure to persecute?Which brings me to Kogo's comment, supra. It illustrates very nicely the Establishment Clause interpretation according to which the clause mandates aggressive, one might even say inquisitorial secularism, because anything less would let the religgies in and thus "set a precedent." The Court always disavowed this view even at the high-water-mark of its strict-separationism during the '70s; it has receded from that unfounded, a-historical view since then, and views as fundamentally unfair the view that religiously motivated people cannot, in most circumstances, coexist equally with others not so motivated. Rosenberger v. Rector, Lamb's Chapel v. Center Moriches School District, Good News Club v. Milford Central School, Zelman v. Simmons-Harris, Mitchell v. Helms (plurality).

  • http://www.blogger.com/profile/12714581082612893449 Colin

    @Kogo"This sort of thinking survives to this day in the form of opposition to the health care law: Conservatives who oppose it might recognize, on some level, that government provision of health insurance isn't *itself* nefarious, but by having the government involved so deeply in individual welfare and decisionmaking, a dangerous precedent is established."You've got one third of it right. The type of government involvement contained in the PPACA is wrong on three fronts. Firstly, something that can be done efficiently and competently at a lower level of organization should be done at that level. It is wrong to remove functions that can be performed at a more local level and assign them to a higher authority. The PPACA transfers authority from a local (personal) level to a centralised, national level. Secondly, it is common knowledge that the social programs (entitlements), once put into existence, are almost impossible to uproot. In some world this might not be such a bad thing. However, in our world — the world of multi trillion dollar debts and 15 digit "unfunded liabilities" — it's not so great. Of course, the PPACA promises deficit reduction (reducing the rate at which we spend what we do not have) over the next half century or so. Then again, name a major federal entitlement program that has not claimed that it will stay within its fiscal bounds. All government programs of this nature end up costing more than was originally projected. Conservatives merely recognize this reality. Near all government programs of any nature end up as bloated, stinking, steaming piles of wasteful inefficiency. Picture that for a bit. Bloated, steaming piles of wasteful inefficiency. If you're having trouble dealing with something that abstract (I know you don't like to deal in abstractions), picture Chris Hitchens engaged in a debate. Lastly (and this is where you were right), conservatives recognize that allowing the federal government to regulate economic non-activity is a bad precedent. Just saying the phrase: "the government should not be allowed to force one to engage in economic activity" sounds crazy coming out of my mouth. Regardless, it's something that seems common sense to many people, and I believe that is what forms the base of conservative opposition to the PPACA. I'd like to add that I think Gilbert has a great point, one that I've thought about before. Are religious beliefs just like any other belief, as prominent atheists have proposed? Should they not be considered sacred, extraordinary, or special? If they are just like a political ideology or opinion in terms of the level of respect deserved, then why the objection to them being "imposed" on society by means of the vote? If they are not special in any way, and are subject to any and all criticisms (like political beliefs), then why can I not promote and support them in the public square? *Double post, sorry

  • Patrick

    Permanent or temporary isn't relevant.The only thing that really matters is the editorial portrayal.I'm rather inclined to suspect that two things will happen:1. It will be editorial portrayed in a secular manner…2. But with a wink and a nod, and a resulting use of the site as a religious shrine.That's pretty much how these things always go. The reality is that Christianists want the government to engage in ceremonial Christianity, and they're not good people, so they'll lie to make it happen. And since the law is in part based on intention, that's an efficacious strategy.So we get obligatory school prayer, but then when that's deemed unconstitutional we get non obligatory school prayer coupled with a strong social stigma of the non participants, and when that's deemed unconstitutional we get "student run speaking sessions" that just so happen to always be Christian prayers, and when its deemed unconstitutional to "coincidentally" never, ever pick a non Christian to give a speech, we get yet another dodge after dodge after dodge.Because the game is to make the government as Christian as possible, while lying about what you're doing.Its part of the reason I have such an incredibly, incredibly low opinion of the moral worth of political Christianity. I've had enough of watching judges rule that religious artifacts are just historical artifacts, while Christians outside fall down on the ground in front of them, roll around, and babble. I just don't respect this, and I don't respect people who advance these efforts. I don't think I can prove my case completely enough to make it impossible for sufficiently fervent people to maintain their opinion with a straight face, so I don't think I, or the American Atheists, can stop this sort of thing from happening.But its worth remembering exactly the nature of the people with whom we're dealing.

  • http://www.blogger.com/profile/16496144988509668275 Leah

    Thanks a lot for weighing in, David Wagner. (For those who don't know, Mr. Wagner is a law professor)

  • - Blamer ..

    A proposal to omit it is basically a proposal to edit the Christian element out of this part of history. (Gilbert)I find this quite compelling.Surely the actions of AA are sincere. They want the legalities tested. Meanwhile their case reminds us that religions shun those who don't rally under their banner.

  • http://www.kotaku.com Kogo

    *Firstly, something that can be done efficiently and competently at a lower level of organization should be done at that level.*So you believe the private market can efficiently and competently provide health insurance, huh?So why hasn't it?*It is wrong to remove functions that can be performed at a more local level and assign them to a higher authority. The PPACA transfers authority from a local (personal) level to a centralised, national level.*Totally. That's why I support abortion rights.*Are religious beliefs just like any other belief, as prominent atheists have proposed?*Yes.*Should they not be considered sacred, extraordinary, or special?*No. *If they are just like a political ideology or opinion in terms of the level of respect deserved, then why the objection to them being "imposed" on society by means of the vote?*Because of the First Amendment.*If they are not special in any way, and are subject to any and all criticisms (like political beliefs), then why can I not promote and support them in the public square?*I've said this so often and to so little effect that I assume I'm just not being listened-to on a neurological level but here goes: *You* totally can. I have no problem with that. It's our government that cannot. *Just saying the phrase: "the government should not be allowed to force one to engage in economic activity" sounds crazy coming out of my mouth. Regardless, it's something that seems common sense to many people, and I believe that is what forms the base of conservative opposition to the PPACA.*I 49% agree with you that Congress cannot require you to buy health insurance. But who am I to deny precedent? In 1798, Congress passed the Act for Relief of Sick and Disabled Seamen. Signed by President John Adams, it required privately employed sailors to pay a mandatory tax of 1% of their wages into a common pool for operation of a maritime hospital service (viz. old/sick sailors' homes).

  • http://www.io9.com Kogo

    Oh and Leah: I don't dignify anyone who works at Regent* "University" with the title of 'professor' of anything.*Regent = "Until Jesus comes back, we will rule."

  • http://www.blogger.com/profile/12714581082612893449 Colin

    "So you believe the private market can efficiently and competently provide health insurance, huh?So why hasn't it?"Government interference in the form of burdensome regulation (ERISA, EMTALA, AMA lobbying, 3-6 layers of regulatory agencies – local to federal), tort law abuse, fraud and corruption in regulating agencies, greed, et cetera.I'm not an economist, and I'm not an expert on health care. But all that I know about the nature of government tells me that anytime something like the PPACA is instituted it a. never leaves, and b. costs more than is anticipated (the 14 digits kind of "more"). "Totally. That's why I support abortion rights."The right to life precedes the right to liberty. It is scientifically irrefutable that a new, separate, human life is created at fertilization. I realize that you are in the business of determining which humans are persons and which are not (early stages, late stages, perhaps in a decade or so any stage you deem "undesirable"), but that is a business which more and more Americans are retiring from*. "Because of the First Amendment."I figured you might say that. I was, of course, not talking about government establishment of religion. Many atheists are opposed to the expression of any opinion that is religious, in origin or justification, in the public square. For instance, those who oppose gay marriage for religious reasons are said to be imposing theocracy on the United States, and violating the 1st Amendment. This involves a deliberate obfuscation of the meaning of "government establishment of religion." "But who am I to deny precedent? In 1798, Congress passed the Act for Relief of Sick and Disabled Seamen. Signed by President John Adams, it required privately employed sailors to pay a mandatory tax of 1% of their wages into a common pool for operation of a maritime hospital service (viz. old/sick sailors' homes)."Sounds like Medicare Beta, v1.0. What's your point? That the government has the power to levy taxes? That's not in the same ballpark as the government having the ability to force you to directly engage in a commercial activity. That shows precedent for government involvement in health care at some level. It is not, however, precedent for the federal government to mandate the purchase of a private good. "Oh and Leah: I don't dignify anyone who works at Regent* "University" with the title of 'professor' of anything."So witty! So cutting! * http://www.gallup.com/poll/128036/new-normal-abortion-americans-pro-life.aspx

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