In a decision that represents a ringing affirmation of the presence of faith in the life of our nation, the Second Circuit Court of Appeals has rejected the American Atheists’ challenge to including the famed “Ground Zero Cross” in the National September 11 Museum.
While the entire opinion is worth reading, two excerpts were particularly important. First, the court unequivocally rejected the most dangerous aspect of American Atheists’ challenge – the argument that acknowledging the historical importance of faith constitutes improper “religious promotion.” To the contrary, the “accurate account of human history” often “requires reference to religion:”
American Atheists point to no precedent holding that when a religious symbol or artifact with genuine historical significance is included in a public historical display, the actual purpose is necessarily religious promotion. To the contrary, the Supreme Court has long recognized that an accurate account of human history frequently requires reference to religion: “The history of man is inseparable from the history of religion.” Engel v. Vitale, 370 U.S. 421, 434 (1962). Indeed, as Justice Jackson observed in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948) (Jackson, J., concurring), “it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything that gives meaning to life, is saturated with religious influences,” id.
Next, once the display is constitutionally appropriate, it is up to the museum to determine which artifacts to display. It is not up to offended observers to determine how a museum tells the story of our shared history. Here, the court relied on our ACLJ Supreme Court case, Pleasant Grove City v. Summum:
As American Atheists acknowledge, appellees’ choice as to which artifacts to display in recounting the history of the September 11 attacks is a form of government speech. Individuals will generally not be heard to complain that government speech favors one viewpoint over another unless, in the context of a religious discrimination claim, the challenged speech violates the Establishment Clause. See Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009) (collecting cases recognizing that “[i]t is the very business of government to favor and disfavor points of view,” and that a government entity is “entitled to say what it wishes . . . and to select the views it wants to express” as long as its speech “comport[s] with the Establishment Clause”
The ACLJ filed an amicus brief in the case on behalf of the more than 230,000 members of our Committee to Protect the Ground Zero Cross, a brief that heavily relied on our previous victory in Summum.
The American Atheists will likely appeal this decision, so the case is not yet over, but the Second Circuit’s opinion represents a profound defeat for those who wish to drive faith not just out of the public square, but out of public memory.
We are thankful for this victory for the Constitution, our national heritage, and for common sense.