Am. Atheists, Inc. v. Port Auth. of N.Y. & N.J., Nat'l September 11 Mem'l & Museum At the World Trade Ctr. Found., Inc.

• Decision Date: 28 July 2014
• Docket Number: Docket No. 13–1668–cv.
• Citation: 760 F.3d 227
• Parties: AMERICAN ATHEISTS, INC., Dennis Horwitz, Kenneth Bronstein, Jane Everhart, Plaintiffs–Appellants, Mark Panzarino, Plaintiff, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, National September 11 Memorial and Museum at the World Trade Center Foundation, Inc., Defendants–Appellees, State of New Jersey, Governor Chris Christie, Silverstein Properties, Inc., Lower Manhattan Development Corporation, Church of the Holy Name of Jesus, Brian Jordan, World Trade Center Properties, LLC, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

760 F.3d 227

AMERICAN ATHEISTS, INC., Dennis Horwitz, Kenneth Bronstein, Jane Everhart, Plaintiffs–Appellants,Mark Panzarino, Plaintiff,

v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, National September 11 Memorial and Museum at the World Trade Center Foundation, Inc., Defendants–Appellees,State of New Jersey, Governor Chris Christie, Silverstein Properties, Inc., Lower Manhattan Development Corporation, Church of the Holy Name of Jesus, Brian Jordan, World Trade Center Properties, LLC, Defendants. ^*

Docket No. 13–1668–cv.

United States Court of Appeals, Second Circuit.

Argued: March 6, 2014.

Decided: July 28, 2014.

Edwin F. Kagin, American Atheists, Inc., Union, Kentucky (Eric O, Husby, Esq., Tampa, Florida, on the brief), for Appellants.

Mark H. Alcott (Gerard E. Harper, Paul A. Paterson, on the brief), Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, New York, for Appellee National September 11 Memorial and Museum at the World Trade Center Foundation, Inc.

Megan Lee, The Port Authority of New York and New Jersey, New York, New York, for Appellee Port Authority of New York and New Jersey.

Jay Alan Sekulow, Stuart J. Roth, Jordan A. Sekulow, American Center for Law & Justice, Washington, D.C.; David A. French, Carly F. Gammill, American Center for Law & Justice, Franklin, Tennessee; Robert W. Ash, American Center for Law & Justice, Virginia Beach, Virginia, for Amici Curiae The American Center for Law & Justice and The Committee to Protect the Ground Zero Cross.

Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for Amici Curiae Wallbuilders, Inc. and The National Legal Foundation.

Matthew J. Dowd, Megan L. Brown, Brendan Morrissey, Wiley Rein LLP, Washington, D.C., for Amicus Curiae Brian Jordan, OFM.

Eric S. Baxter, Asma Uddin, Diana Verm, The Becket Fund for Religious Liberty, Washington, D.C., for Amicus Curiae The Becket Fund for Religious Liberty.

Before: RAGGI, LYNCH, and CHIN, Circuit Judges.

REENA RAGGI, Circuit Judge:

On the morning of September 11, 2001, a group of Islamic terrorists murdered almost 3,000 persons by hijacking four commercial airplanes and crashing them into New York's World Trade Center, the Pentagon, and a field in Shanksville, Pennsylvania.¹ Ten years to the day after these horrific events, the current and former Presidents of the United States, Barack Obama and George W. Bush, traveled to the World Trade Center site, commonly referred to as “Ground Zero,” to dedicate a National Memorial to these victims, as well as to six persons killed in the earlier 1993 terrorist bombing of the World Trade Center. More recently, on May 15, 2014, President Obama returned to Ground Zero to open a National Museum, situated underneath the Memorial and dedicated to documenting the history of the terrorist attacks and the heroic rescue efforts that followed.

This case, filed approximately three years before the Museum opened, challenges the display therein of a particular artifact recovered from World Trade Center debris, a column and cross-beam from one of the Twin Towers that gave some who saw it, particularly rescue workers, the impression of a large Latin cross, a symbol frequently associated with Christianity. Appellants, American Atheists, Inc., and three members of that organization, Dennis Horwitz, Kenneth Bronstein, and Jane Everhart (collectively, “American Atheists”), initially contended that any display of the column and cross-beam, denominated by the Museum as “The Cross at Ground Zero,” would violate the Constitution's Establishment and Equal Protection Clauses, seeU.S. Const. amends. I & XIV, as well as parallel provisions of New York and New Jersey state law.² On this appeal from an award of summary judgment entered on March 28, 2013, in the United States District Court for the Southern District of New York (Deborah A. Batts, Judge ), in favor of appellees, the Port Authority of New York and New Jersey (“Port Authority”) and the National September 11 Memorial and Museum at the World Trade Center Foundation, Inc. (“September 11 Memorial and Museum Foundation” or “Foundation”), see American Atheists, Inc. v. Port Auth. of N.Y. & N.J., 936 F.Supp.2d 321, 326–27 (S.D.N.Y.2013), American Atheists abandoned this expansive argument. Conceding that The Cross at Ground Zero is an historic artifact worthy of display in the National September 11 Museum, they limit their challenge to the manner in which the Museum intends to display the cross. Specifically, American Atheists contend that the Port Authority and the Foundation impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11. American Atheists acknowledge that there is no historic artifact that speaks particularly to the loss of atheists lives or to atheists' rescue efforts. Nevertheless, they submit that the district court erred in concluding that their claims failed as a matter of law because they are willing to finance an atheists' recognition plaque for display in the Museum together with The Cross at Ground Zero.

For the reasons stated herein, we conclude that American Atheists' challenge fails on the merits. Accordingly, we hereby affirm the judgment in favor of appellees.³

I. Background

On de novo review of a summary judgment award, we are obliged to view any disputed issues of fact in the light most favorable to the non-moving party. This case presents no disputes of material fact as is evident from American Atheists' decision not to file any response to appellees' Rule 56.1 statement in support of their summary judgment motion. See Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir.1998). We nevertheless recite the relevant facts in some detail because they necessarily inform our legal analysis of American Atheists' Establishment and Equal Protection Clause challenges.

A. The Cross at Ground Zero

In the days and weeks following the terrorist attacks of September 11, 2001, hundreds of professional and volunteer rescue workers descended on lower Manhattan where they pored through mountains of debris looking for survivors or, at least, some human remains of the thousands who had died. Two days into this grim task, on September 13, 2001, construction worker Frank Silecchia spotted in the rubble near 6 World Trade Center a large column and cross-beam, which gave him the impression of a Latin cross. Taking hope from what he perceived to be a religious symbol, Silecchia brought the column and cross-beam to the attention of other rescue workers, many of whom shared his reaction.⁴

A few weeks later, on October 3, 2001, volunteers lifted the 17–foot column and cross-beam from the wreckage and erected it onto a platform at the West Street edge of the recovery site. The following day, almost one hundred people gathered when Father Brian Jordan, a Franciscan priest who had been blessing victim remains at Ground Zero, blessed the artifact. Soon after, Father Jordan, who also had been offering masses for workers at Ground Zero, began to conduct such services at the cross site. Persons of different faiths, or of none at all, were welcome and offered communion. See Draft Script for Exhibit, Exh. 4 to Patterson Decl., NSMM 2202.⁵ The Cross at Ground Zero thus came to be viewed not simply as a Christian symbol, but also as a symbol of hope and healing for all persons.⁶

In 2006, construction work on the new World Trade Center Transportation Hub prompted the Port Authority to arrange for the retrieved column and crossbeam's removal from Ground Zero to an airport hangar designated as the interim repository for World Trade Center artifacts. The plan was met by an outpouring of public support for maintaining this particular artifact at or near Ground Zero. Accordingly, the Port Authority agreed that the column and cross-beam could be temporarily housed at St. Peter's Roman Catholic Church, which faces directly toward Ground Zero. There the column and cross-beam remained until 2011, when the Port Authority transferred custody of this and other Ground Zero artifacts to defendant September 11 Memorial and Museum Foundation. Before the column and cross-beam were removed from St. Peter's, members of the clergy conducted a final blessing ceremony.

B. The September 11 Memorial and Museum

The National September 11 Memorial and Museum is located at Ground Zero. The outdoor Memorial recognizes by name each person who lost his or her life in the September 11 attacks, whether in New York, Washington, or Pennsylvania, as well as each person killed in the 1993 World Trade Center bombing.⁷ The indoor Museum is located primarily underground and directly beneath the Memorial.

In a space of approximately 110,000 square feet, the Museum recounts the history of the September 11 attacks and their aftermath. Some 1,000 objects drawn from a collection of more than 10,000 artifacts are displayed.⁸ Some of these objects are small and personal, for example, eyeglasses, an identification card, a pair of shoes, a loved one's photograph. Others are monumental, such as a 60–foot high section of the World Trade Center's slurry wall foundation, which, though cracked on September 11, successfully held back the Hudson River, preventing the flooding of lower Manhattan.⁹ Other large artifacts include the unique tridents that formed the Twin Towers' façade; a 20–foot segment of the communications antenna that stood atop the North Tower; the concrete “Survivors' Staircase,” down which hundreds fled on September 11 toward the relative safety of Vesey Street; mangled fire trucks and ambulances reflective of the day's valiant rescue efforts; and a 37–foot high, 58–ton column—the last removed from Ground Zero—bearing a host of inscriptions from many who contributed to rescue and recovery efforts.

Of particular relevance to this...