Second Circuit Ruling Rejects Challenge To Display Of World Trade Center Cross At 9/11 Memorial Museum

Tuesday, July 29, 2014 - 16:21

The U.S. Court of Appeals for the Second Circuit today issued a ruling in support of Wiley Rein amicus curiae, Father Brian Jordan, and rejected an atheist group’s challenge to the inclusion of the World Trade Center Cross in the National September 11 Memorial & Museum.  

Wiley Rein attorneys Matthew J. DowdMegan L. Brown, and Brendan J. Morrissey filed the amicus brief on November 15, 2013 in the case, American Atheists, Inc. et al v. Port Authority of New York and New Jersey et al. The brief urged the Second Circuit to uphold a trial court’s decision that displaying the cross at the 9/11 Memorial Museum does not violate the Establishment Clause of the U.S. Constitution. 

“The Second Circuit’s unanimous decision is a resounding victory for the 9/11 Memorial Museum, which was established to recount the complete and accurate history of 9/11 and the events at Ground Zero, said Mr. Dowd.  “As the Second Circuit recognized, the Ground Zero Cross was an integral part of that history, and the court rejected the American Atheists’ attempt to remove the Cross from that history.  The outcome is also a victory for Fr. Brian Jordan, the priest who blessed the Cross and said mass at Ground Zero in the months that followed.  The lawsuit was a frivolous attempt to chill his freedom to exercise his religion, and the court implicitly rejected that attack.”

Ms. Brown said, “We were honored to represent Fr. Jordan in this case, which unfortunately is an example of how this sort of litigation can be used to try and diminish the role of religion in civil society, including to rewrite history. We are glad that the Court emphatically rejected the plaintiffs’ claims on the merits.”

Fr. Jordan, who is very pleased with the outcome, remarked: “Hopefully, the decision will put an end to this case and allow the victims’ families and the public in general to appreciate and understand the history and significance of 9/11 as they visit the 9/11 Memorial Museum in New York City.  The decision also confirms that ministers of faith should not be subject to suit simply for expressing their religion in public.”

The Second Circuit wrote: “In sum, because the record demonstrates, as a matter of law, that Museum display of The Cross at Ground Zero does not violate the Establishment Clause, we conclude that judgment was correctly entered in favor of appellees on this First Amendment claim.”

The Cross — found amidst the wreckage of the World Trade Center two days after the September 11, 2001, terrorist attacks —became a source of inspiration for workers at Ground Zero. In October 2001, Fr. Jordan, a Franciscan priest, blessed the Cross at Ground Zero, saying that “this is our symbol of hope, our symbol of faith, our symbol of healing.”  On July 23, 2011 — shortly before the Cross was placed in the 9/11 Museum — Fr. Jordan again blessed the Cross at an interfaith ceremony, remembering people of all faiths who perished in the attacks.

Two days after the 2011 ceremony, the American Atheists sued Fr. Jordan and several other defendants, alleging that the inclusion of the Cross in the museum violates the First Amendment and various state laws. Last year, the atheists’ organization agreed to drop its claims against Fr. Jordan and the Church of the Holy Name of Jesus, his former residence.

The lawsuit against the remaining defendants — the 9/11 Museum, the Lower Manhattan Development Corporation, the Port Authority of New York and New Jersey, New Jersey Governor Chris Christie, and New York Governor Andrew Cuomo — was dismissed in March 2013 by the U.S. District Court for the Southern District of New York.  The American Atheists appealed that ruling to the Second Circuit.